Robert Marks, BridgeTower Media Newswires
Google processes over 3.5 billion search requests each day. I discovered this information by typing into the Google search bar “How many people use Google search?” If I had typed in a question related to a business, I would find myself looking at the search results .75 seconds later. On the right hand side of my screen I would also see the star value of that business’s Google Reviews. With the amount of users that use Google search every day, that star value can be the difference between a thriving business and one struggling to survive.
Unfortunately, these Google Reviews can be written by a disgruntled customer or even an anonymous individual who can create a “fake review” about an awful experience that never occurred. Written in a moment of anger or with malice on the mind, these reviews can contain defamatory statements.
For those who need a quick refresher from someone who just took the bar exam, a defamatory statement is a false statement that is published to a third party, absent authorization, that causes harm. A statement that harms a person or business tends to expose them to public contempt, ridicule or disgrace—or to induce an evil or unsavory opinion of him or her in the minds of a substantial number of the community. Any statement that suggests improper performance of one’s professional duties, or otherwise tends to injure another in his or her trade, business or profession, may be actionable as defamatory per se without proof of damages.
Despite being otherwise defamatory per se, most statements on a negative Google Review are protected through the common defenses that the statement represents the speaker’s opinion and/or the statement in question is true. Even if those defenses do not protect the speech, the online context in which the statement is made can serve to shelter the speaker.
The culture of internet communications has led to the rise of free speech, including rhetoric or hyperbole. Jacobus v. Trump, 55 Misc. 3d 470, 478 (N.Y. Sup. Ct. 2017). Harsh personal opinions on people and businesses are vigorously expressed on social media and business review websites such as Google Reviews, Avvo and Yelp. Some commentators have expressed the view that the acceptance of these practices has led to the loss of truth and fact (Farhad Manjoo, “How the Internet Is Loosening Our Grip on the Truth,” NY Times, Dec. 2, 2016).
As a recent case from the 1st Department noted, “readers give less credence to allegedly defamatory remarks published on the Internet than to similar remarks made in other contexts.” Torati v Hodak, 147 A.D.3d 502, 503 (N.Y. App. Div. 1st Dept. 2017). Since the 2010s, New York courts have consistently protected statements made in online forums as statements of opinions rather than fact. This makes combating defamatory reviews on websites such as Google Reviews increasingly difficult.
And yet, there are some strategies that can be pursued to protect businesses and professionals from defamatory reviews. Most reviewing websites have their own form of monitoring system that should be used as the first step. It is as simple as navigating to the review, clicking the “flag” button next to the defamatory review, and filling out the required form explaining why it should be taken down. If the review violates the policies of the website, they are quickly removed once flagged by a user.
For instance, the Google Reviews policy specifically disallows advertising, off-topic reviews, obscene or offensive language, a conflict of interest by a reviewer, copyrighted content, sexually explicit material and hate speech.
However, the built-in monitoring systems of these review websites have their limitations. Google Reviews disclaims in their “Flag a Review” policy that “Google doesn’t get involved when merchants and customers disagree about facts, since there’s no reliable way to discern who’s right about a particular customer experience.” In other words, the monitoring system only protects against opinion reviews that violate their policies (some of which are listed above). In an ironic twist, Google cracks down on certain protected First Amendment opinion speech while the true defamatory speech, i.e. false factual assertions tending to harm another’s business, escapes the system.
What else can be done? The next step depends on if the identity of the speaker/reviewer is known and accurate. In order to post a review on Google Reviews, a reviewer must have an account with Google that displays information such as their name, birthdate, and gender, with the option to also include an email and phone number. That information is available to Google, but not necessarily the business being reviewed, depending on what privacy settings are being used by the reviewer. Regardless of the privacy settings, none of the information provided on a Google account is verified
If the identity of the reviewer cannot be discovered from their account, a subpoena can be sent to Google for records pertaining to the account holder who posted the review. This involves requesting information relating to the URL of the Google Review page. The subpoena should ask for all the information on the Google account and, most importantly, for the internet protocol (IP) address used to create the account. The IP address can be traced to the internet service provider (ISP) and another subpoena can be sent to the ISP company for their subscriber information. The subscriber information is verified and will lead to identification of the individual using that IP address.
Once the identity of the reviewer is discovered, a cease and desist letter is often effective. As mentioned above, the culture of the internet is such that anyone who wrote a defamatory review out of anger or spite likely thought nothing of it because it was posted online. A simple letter reminding them of legal consequences for online behavior serves as a cheap “wake-up call” to the majority of people. Additionally, often that is all a business or professional seeks—to get the review removed and their star rating improved.
Pursuing a full defamation claim for a defamatory online review is completely contingent on who the reviewer is. A competing business owner that posts defamatory content is more worthwhile to sue whereas a general customer with limited means would not be fruitful.
No matter how a business or professional seeks to pursue their legal rights against a reviewer, Google and other reviewing websites will be immune from liability for the review even if they do not take down a clearly defamatory statement. Section 230 of the Communications and Decency Act provides that “[n]o 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.” These online sites simply provide the place to exercise free speech and cannot be held liable for the content that others post.
In an age where every person has the ability to broadcast their criticism to the entire world, defamatory reviews can go unchecked and unpunished. Businesses and professionals will have to keep a close eye on these reviewing websites and stay current on the best strategies to protect their reputation.
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Robert Marks is a law clerk in the Litigation Department at Boylan Code LLP and a recent graduate of the Syracuse College of Law.
