In Episode 6 of the Keith Law PLLC Podcast, I covered how a business can handle negative online reviews that are false. During that, I discussed the Texas Defamation Mitigation Act (DMA) and it’s requirement that the defamed business or person send a demand for retraction or correction to the accused defamer. In that episode, I mentioned that there was some uncertainty about the effect of failure to send the demand—whether it would prevent the lawsuit from concluding or would only prevent a plaintiff from recovering exemplary (punitive) damages. This month the Texas Supreme Court issued its opinion in Hogan v. Zoanni aiming to answer this question.
It’s common for many businesses to live and die by their online reviews. If you do enough business, there’s a chance you will eventually run into someone who wants to damage your business reputation by posting negative online reviews. If the review is true, or merely opinion, freedom of speech will probably override any steps you can take to force the removal of the review unless the person posting has promised, in an enforceable contract, to never publish anything about your business. Otherwise, you have some tools in your toolbox to protect your online reputation by forcing the removal of negative reviews.
Section 73.055 of the Defamation Mitigation Act requires a “timely and sufficient request for a correction, clarification, or retraction from” the defamer (a “DMA Request”).