With the advent of social media, new websites have popped up providing ratings of restaurants, parks, stores, and almost anything commercial. Included within those ratings are ratings of professionals. Contractors, accountants, doctors, optometrists, veterinarians, and even attorneys find themselves under the microscope of their web savvy patients, clients, and customers. And just as much as a bad review in the local newspaper used to shutter the doors of a local eatery in days, a bad review of a professional on these sites can do just as much damage to a fledgling professional.
Given what is at stake, many professionals have turned to aggressive tactics to secure their online reputation. An entire industry of reputation management has been created to ensure that a business or professional’s web results are positive through manipulation of Google’s and Bing’s algorithm. In addition, these businesses and professionals go out their way to secure testimonials to post on their own website or encourage customers, clients, and patients who have had positive experiences to post them on sites such as Twitter, Facebook, Foursquare, Google Places and Yelp.
Another aggressive but defensive method has been to challenge comments through the law. Unfortunately, legal challenges to online reviews have – in recent years and for the most part – been a colossal fail. Congress passed legislation that provides statutory immunity to online service providers (such as Twitter, Facebook, Foursquare, Google Places, and Yelp) for the content of third-party posts. See 47 U.S.C. § 230. And the case law is unanimous in support of online service providers because of concerns that they would otherwise be forced to remove third party posts every time someone raised issue with their contents. (See Carafano v. Metrosplash.com. Inc., 339 F. 3d 1119 (9th Cir. 2003); Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997); Barrett v. Rosenthal, 40 Cal. 4th 33 (Cal. 2006).)
In fact, challenging posts through the law has often just made the matter worse. Typically, most of the defamation lawsuits filed as a result of comments in social media have garnered a lot of negative publicity for the defamation claimant, but no compensation for the seeming “victim”. Consider the following examples (found through the work of Debra L. Bruce, Esq.):
- In 2007, lawyers John Henry Browne and Alan Wenokur sued Avvo.com. Among other claims, Browne alleged that his rating of 5.7 out of 10 damaged his reputation. U.S. District Judge Robert Lasnik held that the ratings were opinions protected by the First Amendment, and dismissed the case.
- In 2009, Horizon Group Management sued a tenant for $50,000 for tweeting “…Who said sleeping in a moldy apartment was bad for you? Horizon realty thinks it’s okay.” The tenant only had 20 followers on Twitter at the time, so almost no one would have noticed the tweet. Horizon’s lawsuit brought on a firestorm of criticism and national publicity, however, undoubtedly causing more damage to its reputation than the tweet. In 2010 the court dismissed Horizon’s lawsuit, holding that the tweet was too vague to be actionable.
- Bringing suit also might subject the complainant to an Anti-SLAPP motion under CCP § 425.16. Such a motion (1) immediately stays discovery, and if successful (2) strikes an entire cause of action and (3) results in the awarding of attorney fees. In 2009, California dentist Yvonne Wong sued a patient and Yelp for defamation based on a negative review posted on Yelp.com. In 2011 the dentist was ordered to pay more than $80,000 in attorney’s fees to Yelp and the patient under California’s anti-SLAPP law. The court held that the statute applied because the posting referenced the use of mercury fillings, furthering discussion of an issue of public interest.
Rather, our recommended strategy is for the aggrieved party to focus on the shortcomings found in the negative review. Improve your services in order to address the underlying complaint. Reach out to the individual providing the negative review. Find out if you can get an opportunity to provide your side of the story to them. Then, offer them either a refund, credit, or discounted services moving forward. Finally, most of these websites provide the aggrieved with an opportunity to respond to the review. Use that function to explain the lengths you went to addressing the general terms of the negative review and, specifically, what you did to accommodate the upset customer, patient, or client. We are also more than happy to help coach you through this entire process.
I know it sounds hokey, but the “customer is always right” is usually the best advice for addressing social media. Unless your attorney can show that the reviewer is actually a “competitor in sheep’s clothing”, the review – as harmful as it may be – generally has some shard of truth that can be addressed in order to ensure better service moving forward.