Question:  Someone posted a damaging online review of my company containing false information. What are my options to get the review taken down?


Answer:  Online review websites like Yelp have exploded in popularity over the past several years. Although review websites can be extremely helpful to businesses and consumers alike, the risk of a false, damaging review has become a growing threat to the reputation of a business.
There are steps companies can take to minimize the risk of false, damaging online reviews. Defamation is the primary cause of action that is used against someone who lied about your business online. A successful defamation lawsuit requires proof of a non-privileged, false statement of fact (rather than opinion) that exposes the business to hatred, contempt, ridicule or has a tendency to injure the occupation or business reputation. Given the anonymous, opinion driven nature of many reviews, proving defamation is difficult. The key is good record keeping.
In Yelp, Inc. v. Hadeed Carpet Cleaning, Inc., a carpet cleaning company examined its negative reviews on Yelp and found that information in anonymous postings didn’t match any data in its customer database. The company sued the anonymous reviewers and subpoenaed their records from Yelp. A Virginia appellate court rejected Yelp’s free speech objection because the carpet cleaning company had sufficiently established that the reviews were false, and therefore not protected by the First Amendment of the U.S. Constitution. The case illustrates that thorough business records can allow a company to identify false information in a negative review. Businesses can then use that information to notify the review website and ask that a false review be removed. If the website refuses to cooperate, filing a lawsuit against the individual reviewer may be an option.
Companies should be wary of bringing a lawsuit against a reviewer without sufficient evidence that the review is false and non-privileged. California law provides a powerful tool known as an anti-SLAPP motion to protect against lawsuits that are intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense. If done properly, an anti-SLAPP motion brought in response to such a suit shifts the burden on the plaintiff to prove that it is likely to win its case based upon the evidence provided. Losing such a motion would stop the lawsuit and expose the plaintiff to liability for the defendant’s attorney’s fees.
Businesses may also respond online to negative reviews. However, companies that post online responses to negative reviews are at risk of a defamation lawsuit themselves if their posts contain false, damaging statements about the reviewer. If a response is defensive or personally critical of the reviewer, the response may do more harm than good.
Companies may also combat false reviews through non-disparagement agreements with former employees. These agreements are generally enforceable, but their scope may be restricted by whistle-blower statutes and freedom of speech rights. In order to enforce the agreement, record keeping is essential to prove that the negative review was posted by the former employee.
Depending on the severity of the on line criticisms, businesses may want to take action to counter false, negative online reviews. Proceed with caution and make sure you have good documentation before taking any action.