If you get poor service in a restaurant or feel a photographer you hired didn’t do the job you paid for, it can be very tempting to jump online and write a scathing review. Before you do, you should think twice. If you’re not careful, leaving a bad review could get you sued.
Disclaimer: We are not lawyers. We’re basing the advice in this article from cases in the public record. It’s primarily focused on the US legal system, although there are similar cases in other Western countries. If you are being sued for anything you’ve written online, contact a lawyer and get professional legal advice immediately.
People Have Been Sued for Bad Reviews
The reality is that anyone can sue anyone at any time for any thing. Frivolous lawsuits are a real thing. PETA has spent seven years suing a photographer on behalf of a monkey. This means that if you annoy a company enough, they can lawyer up and get a court date. You might win, but it could still end up costing you a lot of time and money.
Specifically, people have been sued in the past for leaving bad reviews. In some cases—and we’ll explore some examples—the company has won. In others, like this case where an Edmonton man left a one star review for a tech company that didn’t call him back, the company never follows through with their threat. In yet more, such as this one where a student left a negative review of a law firm that came into her bedroom while she was sleeping in her underwear, the person being sued has won and the company has had to pay their legal fees—$27,000 in this instance.
The big takeaway is that, whatever the result ends up being, companies have sued people for leaving bad reviews. Even if the case ends up being thrown out by a judge, it still can’t have been a fun few months for the people involved while everything was going on. And unless you win and get reimbursement for legal fees, you’re still out whatever money you paid to your lawyer.
Reviews Are Protected By the First Amendment…To a Point
In the US, reviews are protected by the First Amendment, which covers freedom of speech. To back this up, Congress passed a law in 2016 called the Consumer Review Fairness Act, which made it illegal for companies to add terms to their contracts that banned customers from posting negative reviews—or fined them if they do. These terms were becoming increasingly common at the time.
As long as what you say is factually true or is an opinion, this act should protect what you write. However, with a negative review, it’s very easy to cross into defamatory territory. The Electronic Frontier Foundation has a great summary on online defamation laws. It’s meant for bloggers, but it applies to anyone who posts content, like reviews, online.
In brief, if you publish “a false statement of fact” that could “harm the reputation of the plaintiff” (which means the company in this case), then you are committing defamation.
Take this example where a woman, Emily Fanelli, left a Yelp review of floor refinisher Matt Gardiner saying:
“this guy mat the owner is a scam do not use him you will regret doing business with this company I’m going to court he is a scam customers please beware he will destroy your floors he is nothing by a liar he robs customers, and promises you everything if you want s— then go with him if you like nice work find another he is A SCAM LIAR BULL—-ER”
Gardiner (the floor refinisher) sued Fanelli over her review, and the judge ruled in Gardiner’s favor, awarding him $1000 in damages. The judge said that, “Terms such as ‘scam,’ ‘con artist’ and ‘robs’ imply actions approaching criminal wrongdoing rather than someone who failed to live up to the terms of a contract.” In other words, because Fanelli implied Gardiner was a criminal, she was committing defamation.
In another case, Andrew and Neely Moldovan went to the press and accused their wedding photographer, Andrea Polito, of holding the photos hostage over a $150 fee they claimed wasn’t in the contract. Articles, like this one in the Daily Mail, soon appeared.
The Washington Post reports that “the Moldovans’ sympathizers descended on photographer Andrea Polito’s review pages, calling her a scam artist, or worse.” Things got so bad that Polito had to close her studio, so she sued the Moldovans. The jurors found that the Moldovans were in the wrong and thus, they were guilty of malicious defamation. They awarded Polito more than $1,000,000 in damages.
As you can see, the line between opinion and defamation can be very thin. I know I’ve certainly used words like “scam” to describe services I wasn’t happy with. The damages—especially if you manage to destroy someone’s business—can also be huge.
The point of this article isn’t to scare you off writing honest, negative reviews online. There are thousands of negative reviews posted every day and only a very small number of them end up with lawyers involved. The big takeaways are:
- Only post things that are absolutely true.
- Make sure you’re expressing an opinion by saying things like, “I didn’t like X” rather than making statements that could be interpreted as facts like “X sucks”.
- Avoid accusing the companies you’re reviewing of criminal behaviour like robbing you, scamming you, and so on.
- Don’t write reviews while you’re angry. Wait a few days and see how you feel. If you still feel the need to write a negative review, do it carefully and deliberately.
- If you are sued or threatened with a lawsuit, contact a lawyer immediately. A few hundred dollars worth of legal advice now could save you hundreds of thousands of dollars in the future.
And seriously, we’re not kidding about the talking to a lawyer part.
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