Fake Online Reviews and Small Business in Colorado - Part II

As covered in part one, defamation attacks can be very disruptive to small business and the attackers should be held accountable for their actions. Intentionally attempting to cause repetitional and economic harm to a small business is not protected under the First Amendment right to free speech.

One reason why online platforms may be lackadaisical about policing fake or inappropriately negative online reviews is that they suffer no liability for them. Under the Communications Decency Act, the online platform can not be sued and this is a very powerful shield for them. That leaves only accountability for the person posting the review. Of course if the poster is using a pseudonym, as many people who leave fake reviews do, the person’s identify must be determined. This adds a layer of complication.

At times the business owner may have an idea who is posting the reviews. However, sometimes a person may conspire with others for posts. Online platforms have some limited technological methods of checking the veracity of postings, which they may begin implementing in cases of multiple potential fake reviews. The good news is that there are methods to determine the identify of the online poster through legal and investigative techniques. Additionally, it is possible to bring what is called a “John Doe” lawsuit against an anonymous poster. So even if the identity is not known at the outset or never determined, a court filing could still result in a court order to the platform to remove the defamatory material. Of course, it is always best to uncover the identity of the perpetrators and to hold them accountable.

It is possible to file a lawsuit for a review when:

• The review is defamatory, or
• The review attempts to extort a business

A review is defamatory if the reviewer falsely represents themselves as a customer of the business. Reviews from an actual customer are not actionable unless the customer makes a false statement of fact or states an opinion. The Consumer Review Fairness Act allows legitimate customers to state their opinion of products or service. Opinion may not be protected, however if the opinion implies false facts as the basis of the opinion. If an actual customer asserts a pure opinion, it is not actionable even if you disagree with it.

For example, “I did not like the lack of attention that I received from the waiter” is an opinion and not actionable, even if you disagree with it. However, if the reviewer falsely states that a waiter dropped a cup of coffee in his or her lap when that did not actually happen, that is a false statement of fact, which is actionable. A lie is always actionable. Determining the difference between a statement of fact and opinion is not always clearcut. A fair amount of litigation addresses a determination of whether a statement is one of fact or opinion.

You will want an experienced attorney on your side for your one bite at the court apple. An experienced attorney can guide you through defamation matters by negotiating, mediating and litigating. This allows you to focus on moving forward to a better future rather than on spending your time trying to figure out the overly complex court system. Colorado Springs defamation matters are difficult to navigate alone.

Defamation actions are complex and can be difficult to prove. They are costly. Our focus is on small business and our rates are lower commensurately. Janko Family Law Solutions helps ensure that your best interests are protected and that you are aware of your legal rights and obligations. Contact us at 719-344-5523 or complete our online form to set up a free thirty-minute informational consultation.