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Bad Reviews: How Do Businesses Legally Take Them Down?

In the age of the no publicly offered good or service is immune from the looming threat of the online review. They have become the first point of inquiry for approximately 40 percent of all U.S. adults, according to a 2016 study from the . A mere 16 percent of Americans claim to “never” check online reviews before buying new items. This number drops down to only 4 percent for the demographic aged 18-29. The growing importance of online reviews to consumers has forced businesses into the online ecosystem of ratings and reviews, regardless of whether or not they want to be a part of it. While the direct impact of online reviews on the success of a business can be difficult to study, one can assume negative reviews do little to improve their bottom line. One suggests that a one star increase on a restaurant’s Yelp review page could result in a 5 to 9 percent boost in revenues for the business. Alternatively, the loss of a single star could be equally impactful. This is especially alarming to businesses considering that reviews can often be inaccurate, or flat out faked by other companies seeking to undermine the competition. So how can a business legally go about removing reviews they deem to be harmful to their success? In the majority of cases, there is very little that can be done, since there is about expressing your honest opinion about a given business. However, if a business is determined to take action, they are typically advised to first contact the reviewer directly, requesting to remove the post. In the case of a legitimate review, a polite request to take it down can resolve the situation right off the bat. If the reviewer is unwilling to remove the post, a second course of action would generally only apply if the reviewer has either (1) violated the Terms of Service of the hosting site, (2) posted demonstrably false defamatory content, or (3) engaged in copyright infringement within the review.

Terms of Service:
🐲 Many review sites will have terms and conditions which prohibit obvious displays of bigotry, harassment, threats, as well as information which is clearly irrelevant for the purposes of reviewing a particular good or service. Yelp’s discourage the use of “inappropriate content” (bigotry, harassment, etc.), “conflicts of interest,” “promotional content,” irrelevant posts, the publication of individuals’ private information, the unauthorized use of intellectual property, as well as posting reviews with the intention of demanding payment from a business. Each review site has a different set of guidelines, with varying levels of willingness to enforce them. It is up to the discretion of the website to determine the extent to which they actively police content for violations, as they have no legal obligation to do so, for now at least. Some review sites like Ripoff Report, have made it that they do not remove content posted by their users under any circumstance.

Defamation:
ꦐ If the website is unwilling to remove a review which contains defamatory content, the next step would entail obtaining a court order against the reviewer which establishes defamation. In order to qualify as defamation, the review a “false statement of fact,” that is understood as “being of and concerning the plaintiff” and “tending to harm the reputation of plaintiff.” The court must decide whether the reviewer has asserted a statement of verifiable fact, which has later been proven false. The court order declaring defamation can be issued, and submitted to search engines in order to de-index the review from their search results. Google has been known to remove every year from its search results on the basis of defamation by court order. The review sites themselves however, remain under no obligation to remove defamatory content, even when presented with a valid court order. A regarding this issue is currently pending.

Additonally, due to the protections in place by , online publishers are effectively granted immunity from liability for the content published by its users. Section 230(c)(1) 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.” An “interactive computer service” is a broad term which covers blogs, forums, and review sites alike. Yelp, TripAdvisor, Ripoff Report, and Blogger all fall within the protections of Section 230. The law also does “federal criminal law, intellectual property law, and electronic communications privacy law” from its protections. The original authors of reviews however, remain fully liable for their statements.

Copyright Infringement:
🌠 There are very few cases in which copyright infringement can be legally used to silence negative reviews in the United States. Unless the review itself was copied from another website, the majority of copyright infringement claims targeted towards negative reviews are likely to be baseless. This is primarily due to the which allows for the use of copyrighted works without permission from the rightsholder, for the purposes of commentary and criticism. Examples of this could include quoting lines from a song in a music review, displaying gameplay footage in a video game review, or including a manufacturer’s official marketing photo when reviewing a product.

These protections were put in place with the explicit purpose of protecting an individual’s right to publicly comment on copyrighted works, as long as the primary focus of the review is for commentary. Sadly, this has not stopped companies from sending unjustified cease and desist letters for incorporating product images, portions of video, or in some cases . In the absence of some legitimate claim of defamation, copyright infringement, or some other clear violation of law, businesses are limited in their abilities to remove negative reviews and the search results linking to them, in a legal manner. It is ultimately left to the discretion of the hosting site or reviewer to take them down. In the interest of protecting free speech, it rightfully should be a difficult and cumbersome process, in which the burden is placed on businesses to prove the reviewer has violated the law. Attempting to censor negative criticism for the sake of it without the consent of the publishers should not be easy, or legal for that matter. With these limitations in mind, some businesses whose reputations have been adversely affected by the rise of online reviews have resorted to to silence criticism they otherwise have no legal right to censor. These techniques will be covered in an upcoming blog post regarding blatant abuses of the DMCA with the intention of censoring negative reviews.

Mostafa El Manzalawy is a graduate of Sarah Lawrence College. He is currently pursuing his M.A. at NYU Gallatin, studying the tech industry and its effects on global wealth inequality. Mostafa is a tech enthusiast, spending his summer as an intern at the Berkman Klein Center for Internet and Society doing research relating to data protection and privacy law for the Lumen database. In his free time, he can be found spending far too much time on his computer, listening to podcasts, and indulging his interests in Eastern philosophy and human behavior.