Podcast Episode 6—Negative Online Reviews of Your Business, and What Can be Done
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Podcast Episode Timestamps
00:00 — Topic
00:30 — Online reviews are important
01:42 — Overview of the governing law
03:18 — Two important Texas statutes
03:47 — DMA’s requirement for letter demanding correction or retraction
04:55 — The TCPA
05:20 — Contractual contexts of note
06:24 — Angie’s List
07:01 — The main takeaway of the episode
07:55 — Where the podcast episode and related blog post can be found
08:36 — If you have a question for me
08:53 — Outro
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.
First, it might be helpful to know about some of the laws that will come into play in this online reviews context. Freedom of speech, protected by the First Amendment of the U.S. Constitution (and Art. I sec. 8 of the Texas Constitution), is implicated. These constitutional protections prevent government interference with the free expressions of citizens. This matters in the online reviews context because your ultimate avenue to force removal of a false negative online review is via court order—which is a governmental action affecting free expression of the person who posted the review.
Next, you should know that free expression is not unlimited. When the expression is false and harmful to the reputation of another person or a business, the laws related to defamation and business disparagement are implicated. Traditionally, it would make sense to send a demand letter for removal of the defamatory publication prior to seeking a court order of removal.
However, in recent years, the proverbial pendulum has swung in the direction of more protection of free expression. Two Texas statutes following this trend are the Defamation Mitigation Act (the “DMA”) and the Texas Citizens Participation Act (referred to as the “TCPA” and the “Anti-SLAPP” statute). The DMA requires that a letter demanding retraction or correction be sent prior to filing a lawsuit for defamation or business disparagement. Currently, there is a debate about whether failure to send the letter prevents recovery of punitive damages or allows for the full dismissal of the lawsuit. The TCPA provides very powerful defenses to defendant accused of defamation or business disparagement. You should talk to your attorney about the potential impact of the TCPA before pursuing your defamation or business disparagement lawsuit.
What about contracts?
If your business signed up with Angie’s List or another opt-in customer review platform, you may have promised not to seek removal of negative reviews (even if they are false). Be wary of any such restrictions before pursuing removal of bad reviews.
Non-disclosure agreements (“NDAs”) and other agreements that include non-disparagement provisions (i.e., promises not to talk bad about your business) are traditionally unenforceable. However, attempted enforcement could run into Anti-SLAPP obstacles. So, be sure to check with your lawyer in your specific jurisdiction before deciding to take action.
So, what CAN you do?
Send the DMA letter to the posting person and check with the various platforms for their policy on seeking removal of defamatory content and follow their procedure. In some circumstances a lawsuit may become advisable.
It was always best practice to start with a demand letter in most situations. But, now that the DMA requires that a letter demanding retraction or correction be sent prior to filing a lawsuit for defamation or business disparagement, you should do so in almost every situation. If you decide to send the letter without attorney assistance (not recommended), you should definitely consult your attorney prior to taking any further action. The governing laws vary from place to place and the state of this area of law is dynamic and in flux.
Disclaimer: This audio and blog post are for informational purposes only and should not be misinterpreted as legal or other professional advice. If you have a legal question, you should consult with an attorney in your jurisdiction. Thank you for tuning in to Keith Law, PLLC.