Before choosing a restaurant or retailer, it’s estimated that about 89 percent of consumers first read reviews of local businesses.

That number jumps to 95 percent for people ages 18-34, according to last year’s Local Consumer Review Survey by Bright Local, an integrated SEO and local citation platform company.

“Reviews are the new word of mouth,” said Alexxis Barton, investigations specialist for the Better Business Bureau of Southern Colorado. “Everyone checks reviews these days.”

Joe Meadows, partner at the Arlington, Va.-based law firm Bean, Kinney & Korman, said a negative online review can damage a business by causing it to lose sales, opportunities and/or contracts.

“A lot of times my clients who are in the government contract world — they can sometimes lose contracts because of some sort of false factual allegation,” he said.

While a business’ knee-jerk reaction might be to seek legal action against the reviewer, Meadows recommends they try a few other approaches before taking it to court.

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“It’s always a better result if the business is able to end this matter without having to go to court, and many times that can happen,” he said. “But there are also times where you’ve tried, and things have failed, and you may need to get a judge involved to make things right for the business. It all depends on who it is you’re dealing with.”

Addressing reviews

First and foremost, Meadows said when a business receives a review, it needs to decide whether it is going to take any action.

“If you’re the business and you get a negative online review, you certainly want to at least investigate the allegation,” he said. “You need to find out, is it a disgruntled former employee? Is it a business competitor? Or is it a true customer who has a complaint that will have to be dealt with?”

Business owners can investigate whether there is some sort of defamation or disparagement claim, reach out to the commenter directly or reply on the platform where the statement was made, Meadows said.

A disparagement course of action could be made if damaging and false claims were made about a business’ products or services.

“And defamation is more about somebody’s personal reputation,” Meadows said. “Oftentimes with negative online reviews, the way they’re phrased, they could touch on not only the company and their product and service, but on the company’s owners or those folks who are managers at the company, and tarnish their reputation as well.”

Before trying to interact with the commenter, Meadows said it’s also important for the business to consider if the poster appears to be rational. 

“I’ve had that situation where you send a cease and desist letter, and you ask them to take down the statement because it’s defamatory, or disparaging, or whatever it is, and they end up laughing at you and posting the letter online,” he said. “That only adds more credibility to their negative online statement.

“But if you’re dealing with a rational person or someone who actually has a legitimate negative comment, and you think you can work with them to take down the statement, that’s always the best course.”

If a review is false, Meadows said platforms such as Yelp or Glassdoor may be convinced to take it down.

“You can look at the platform’s terms of service and the privacy policies … to see if they allow you to request that they take down the negative online review,” he said. “Most of the time, if you look at those, they do say that for defamatory speech, they’ll consider your … request.”

However, unless the business has a “rock solid” defamatory case or evidence of the reviewer breaking the law by making the statement, Meadows said it’s unlikely to go away.

And businesses don’t have a lot of legal rights when it comes to suing the online review platforms, he added.

“That is a function of federal law,” Meadows said, adding the Communications Decency Act, section 230, states that platforms like Yelp are not going to be treated as the speaker of the statement and cannot be subject to defamation liability for the defamatory speech.

“That law has been tested in many jurisdictions and 99 percent of the time that law protects the … online forums where people are allowed to make comments,” he said.

Meadows advises his clients to proceed against the reviewers themselves with a defamation or disparagement suit.

“They should ask for money damages and ask for injunctive relief where you would have the court tell Yelp or Glassdoor or whomever to tell the commenter to take down their statement,” he said. “That’s really the best practical advice today, given the protection of section 230, for these online companies.”

Meanwhile, Meadows said, it also can be difficult for a business to pursue legal action against an anonymous commenter.

“Those are the hardest,” he said. “But there are a couple of ways you can deal with it.”

One way is reaching out to the commenter if the business can identify them through information left in the comment, Meadows said.

“Perhaps when and how they made their comment has given away who they are,” he said. “But if you don’t have any indication from the content of the online review of who that person is, you’re really left with not many options except perhaps to file a lawsuit against a John Doe.”

The business would have to lay out their case for defamation or disparagement and then ask the court to subpoena anyone who possibly has information about the “John Doe” commenter, Meadows said.

“It could be the online platform who might have collected information on the anonymous reviewer or what Internet Service Provider was used to post the statement,” he said, adding oftentimes those subpoenaed will use the United States Constitution as a defense.

“They will argue that the First Amendment protects the speaker’s right not to be outed,” he said, adding unmasking a John Doe depends on laws that vary from jurisdiction to jurisdiction.

Meadows said businesses also should investigate whether the state has an anti-SLAPP law before filing a lawsuit. SLAPP stands for Strategic Lawsuit Against Public Participation.

“They are a form of state statutes, and they, for the most part, generally protect the exercise of free speech,” he said. “They are generally protecting the defendant [reviewer] in a defamation or disparagement litigation.”

If a jurisdiction has an anti-SLAPP law, Meadows said it allows the defendant to move to dismiss the complaint early in the case in their favor.

“Again, they are generally defendant-friendly and would not be helpful to a business that has been defamed or disparaged online,” he said.

While Colorado does not have an anti-SLAPP law, 28 states and the District of Columbia have enacted them.

“There also have been efforts in the past to have a federal anti-SLAPP law, but those efforts have not been successful,” Meadows said. “There are just too many political people involved on one side or the other of the free speech issue to have a federal anti-SLAPP law apply throughout the nation.”