One of the most frequent calls I receive as a defamation attorney relates to individuals’ negative reviews posted about a company with which they’ve done business. Often, the company sends them a demand letter threatening to sue for defamation if they don’t take down the review. While you can’t completely prevent someone from making a threat of this sort, there are some steps you can take when drafting a negative review to protect yourself from liability:
- Tell the truth and nothing but the truth
Truth is an absolute defense to defamation. If you relay the particulars about some issue you have had with a business, try to describe it from an objective and factual point of view. Resist the urge to exaggerate or sensationalize, as flourishes in this direction can sometimes bleed into defamatory territory.
- Separate out your opinions about what happened from the facts.
Opinions are protected in defamation. When you keep the facts neutral, you have more freedom to explain to the audience your thoughts about those facts and what you believe they mean. Signaling to your audience that you are expressing an opinion before you relay your beliefs about true events can help protect you from legal claims.
- The proof is in the pudding
Make sure to keep copies of any evidence that supports your version of events – for example, contracts or emails exchanged between you and the business; photographs or video of relevant events; screenshots of social media or Internet webpages that pertain to the dispute; voicemails, or similar data. These materials can help your attorney respond to a demand letter, if one is made, and can serve to persuade the other side that they would lose a lawsuit. Also, consider including evidence in your negative review itself to help explain the true facts that form the basis for any conclusions you have reached.
- Be careful with innuendo
Sometimes what you are not saying can be just as defamatory as what you do say. Courts have held that juxtaposing a series of true facts to imply a defamatory implication can subject the poster to liability; for example, posting a photograph of a business alongside a statement that “some people are crooks” would imply a defamatory connection and could support liability. Be wary of being too clever with your words, as courts will typically consider what a reasonable reader would take away from your statements.
- Know your rights
If you have followed these rules and someone still tries to silence your speech by threatening frivolous legal action after you post a negative review, several states (including California, New York, Colorado, and others) provide extra protection in the form of an “anti-SLAPP” motion. This extra protection may allow you to recover your attorneys’ fees in the event you are sued and you prevail. You should seek competent defamation counsel to see if your state might afford you such protections from frivolous litigation and the costs it engenders.
Be smart about your online presence. And if you need help figuring out your legal options, we are here to help.
Karin Sweigart handles First Amendment and defamation matters as Counsel at Dhillon Law Group.