IU legal expert offers tips on writing reviews that won’t invite lawsuits.
After a horrible experience with a major retailer earlier this year, I decided to air my grievances online.
I was convinced the entire world needed to know just how poorly this loyal, long-time customer had been treated.
Still fuming when I got back home, I sat down at the computer and pounded out a well-reasoned explanation for how the store manager broke ever tenet of customer service in the book, and why the business would never get another penny out of me.
But I held off posting the review on my Facebook page or other online sites. The process of writing had, thankfully, purged much of my anger — and brought me back, at least temporarily, to my senses.
I may be lucky I didn’t post that scathing critique (as well-written and factual as it was, IMHO). Businesses are watching online reviews and, increasingly, striking back with retraction demands — even lawsuits.
Google “bad review and lawsuits” and you’ll find a lot of examples:
• An Arizona woman sued last year after posting a bad review on Yelp about allegedly shoddy work done by an auto repair shop.
• In Utah, a couple fined $3,500 by a business (they hadn’t read the fine print on the company’s website which included a “non-disparagement” clause) for writing a bad review on RipoffReport after an online retailer failed to deliver a Christmas gift.
• A Virginia woman sued for $750,000 by a contractor for negative reviews she posted on Angie’s List and other sites.
“Businesses aren’t used to being effectively criticized,” said Paul Alan Levy, an attorney with Public Citizen, a nonprofit consumer rights advocacy group and think tank based in Washington, D.C.
“Now, people can broadcast their complaints much more broadly and, plainly, the businesses that are targeted don’t like it.”
Retaliation against bad reviews, Levy said, is growing as the Internet becomes an increasingly important tool of commerce.
A 2012 study by the Graziadio School of Business and Management at Pepperdine University revealed 86 percent of households do online research — including checking other customers’ reviews — before making purchases ranging from dinner to a new roof. Positive reviews, the study found, strongly influence decisions on where we spend our money.
In another study this year by Woodbury University School of Business, nearly 30 percent of business owners said they count on review sites such as Yelp, Google+ and Yahoo to promote their businesses. The study also found that 49 percent of businesses monitor our online praises and jabs.
There’s a reason for that vigilance: The study revealed good reviews are critical and translate into more profits, while a ratings drop from 4.5 stars to 3.5 stars can cut revenues by 10 percent or more.
An off-the-cuff statement to a friend in a coffee shop isn’t likely to get you in trouble, but the same statement posted online is going to be seen by a lot more people — and attract a lot more attention, explained James P. Nehf, a law professor at the Indiana University Robert H. McKinney School of Law in Indianapolis.
“The Internet and social media offer anyone the ability to communicate with a wide audience almost immediately with a few taps on a keyboard or touch screen,” he said.
“That means you can promote a business, person or a cause a lot more effectively than before, but you can also denigrate a person, business or cause just as effectively.”
That new reality helps explain why businesses are responding to bad reviews with increasing vigor. The best advice to avoid hassles or a lawsuit, Nehf said, is to think twice before hitting the send button.
“Give honest opinions and try not to make assertions of fact unless you have a good basis for believing it is true,” he suggested. “This can take a little thought. You’re better off saying, ‘to me, the rice pilaf had a very unpleasant taste,’ instead of, ‘the rice pilaf was rancid.'”
Websites that host reviews and gripes are generally immune from lawsuits under the federal Communications Decency Act of 1996, which Nehf said was implemented in an effort to foster community forums.
There also are laws in Indiana and about 30 other states that help defend critics from lawsuits aimed at silencing them, but they don’t offer the same blanket immunity enjoyed by the Web hosts. The anti-SLAPP — it stands for Strategic Lawsuits Against Public Participation — laws have been used to protect against defamation lawsuits spurred by negative reviews.
“The laws typically allow the defendant to file a motion to dismiss the defamation case on the grounds that the communication was protected under the anti-SLAPP statute,” Nehf said. “A court is supposed to rule on the motion quickly so the defendant does not have to incur a lot of litigation costs.”
Nehf said the law “is not a license to be vindictive or to make up falsehoods” and post them on a website. It does, however, protect people who express an honest judgment, he said, “if they have a reasonable basis for taking a particular view, even if their view is not totally accurate or can be disputed.”
A related concern, Nehf said, is when a website includes a “non-disparagement” clause in its contracts — typically tucked deep in the fine print that none of us read before clicking the “accept” or “agree” button when making a purchase.
“You click ‘I agree’ … and later post a negative review on some consumer review website because you got ripped off. The seller hears about it, contacts you and demands $3,500 for breaching a contract provision in which you ‘agreed’ not to disparage the business in any way, and if you did, you ‘agreed’ to pay $3,500 in damages,” Nehf explained.
That’s what happened in the Utah case I mentioned earlier.
Generally speaking, Nehf said, provisions in consumer “clickwrap” agreements online are enforceable just like any other contract, but not if they result in unfair surprise and are unreasonable. Nehf said online “non-disparagement” clauses have been challenged as unfair and unconscionable in a few cases, but courts have not agreed on their legality.
The bottom line: Online reviews are a valuable tool to consumers and businesses, and we shouldn’t be afraid to share honest opinions about our experiences — good or bad.
Just proceed with a little caution.
Tim Evans is The Indianapolis Star’s consumer advocate. Call him at (317) 444-6204 and follow him on Twitter: @starwatchtim.
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