Legal Actions against Website Posting Fake Reviews

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Many consumers report looking over reviews before purchasing a product or service. This has been made easier by the Internet and the easy ability for consumers to include reviews. However, it has also given a forum for consumers to post negative reviews about businesses and individuals that portrays them in a negative light. In some instances, legal action can be taken against posters or websites if the conduct amounts to defamation.

Business Defamation in General

Defamation occurs when a person or entity makes false statements of fact about a business, person affiliated with the business, product or service that causes economic hardship for the business.

Legal Elements of Business Defamation

In order to prove its case, the defamed business must demonstrate the following elements:

• The defendant made an unprivileged false statement of fact. A mere negative opinion that is clearly an opinion is not actionable. Additionally, certain statements are privileged depending upon state law, such as information discussed in a court proceeding or in certain governmental proceedings.
• The statement was public and about the business or the plaintiff. The statement must be clear enough that others can associate it with the business. Additionally, the statement must be published. In the legal definition, this means that it must have been shared with only one other person who is neither the plaintiff nor the defendant.
• The statement caused harm to the business or plaintiff. In business cases, a defamatory statement may cause the business to lose clients or for customers not to use its products or services.
• The statement was made negligently. In some cases, such as those involving public figures, the threshold is that the statement was made with malice, meaning having a reckless disregard for the truth.

Defamation Per Se

At common law, certain statements were considered defamatory per se. If the defendant was found to make certain statements, the court did not need to hear evidence of how the plaintiff was harmed because this harm was imputed. Such statements usually included false allegations that a woman was not chaste or that a person had a contagious or sexual disease, accusations that a person was not professionally qualified or was professionally inept and accusations that a person committed certain egregious crimes.

Communications Decency Act

At the time of publication, it is quite common for people to repost comments that others make online. As legal protection against defamation claims, websites and individuals sometimes use Section 230 of the Communications Decency Act as a shield. This law dates back to 1996.

It states that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” The law was originally established to protect Internet Service Providers. However, “information content provider” is defined in the law as a person or entity that is fully or partially responsible for the creation of information or its development that is provided through the Internet.

The trend of court decisions at the time of publication is for the court to conclude that online sites and companies are immune from liability from comments their users make. For example, in a 2014 case, the United States Court of Appeals for the Sixth Circuit held that a website and its operators could not face defamation claims for content posted by anonymous third parties. The court noted that publishers historically could have been held liable for publishing defamatory information even if they were not the original publishers of the content but that Congress specifically went a different direction by passing the Communications Decency Act. The protection bars lawsuits that hold a website liable for exercising traditional publisher functions such as deciding on whether to publish, take down, postpone or modify content.

Development or Material Contribution

The Sixth Circuit held that a party was not responsible for developing content simply for allowing others to access the content from its site and that many websites invite and encourage users to post content, including unfavorable reviews of products or services.

Courts often look to whether the website made a material contribution to the development of the defamatory posts. This is a highly fact-sensitive process that is still being established in caselaw.

Other Legal Remedies

If the website that hosts the negative review is immune to suit due to the Communications Decency Act, other paths may be available for recovery. For example, a business may wish to pursue the person or party that makes negative reviews. It may choose to subpoena the web operators to discover who made an actionable post. Due to defamation being a state tort law claim, it is important that a business be familiar with the laws that apply in its jurisdiction. Business owners may wish to consult with a business defamation lawyer in their jurisdiction.


Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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