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Negative Online Reviews and Defamation

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Has someone written a dirty, stinking, scandalous lie about you or your company online???

The internet is the world’s major engine of free speech. The absence of “rules of the road” in the online universe has been a contributor to the growth of the World Wide Web as a venue for the publication of information and opinion. For the younger generation around the world, the internet has become the first source for information about everything from music, to food, to politics, to a place to live. However, what people see online may or may not be reliable: it can be true; it can be opinion; or it can be false. It can have been motivated by the blogger’s excitement and joy (or “like”), it might have been an honest attempt to describe the blogger’s own experience, or it can be an out and out lie published with a vindictive intent to cause damage.

The housing industry relies more and more on internet advertising; we list our vacancies on Craig’s List. So it should come as no surprise that apartment communities and property managers are showing up more and more on blog posts. Of course, we love it when we receive positive reviews, but what do we do when the reviews are negative? Particularly, if we don’t feel that the criticism is justified. Even worse, what if the information is patently false?

The First Amendment to the U. S. Constitution makes speech free. With some limited exceptions, Americans can say what they want about anyone or anything. We value our freedom of speech and believe that the most effective way to defeat prejudice and misinformation is to allow the freedom of speech to shine a bright light on evil. As a result, our courts are very reluctant to limit speech.

The law of defamation is a limit on our free speech rights. To prove defamation a plaintiff must persuade the court or the jury that the blogger-defendant:

used defamatory language – language that is an assertion of an untrue fact that adversely affects plaintiff’s reputation (for example: suggesting plaintiff’s lack of honesty or integrity);

  1. which is specifically about the plaintiff;
  2. that has been published (disclosed to third parties);
  3. which causes damage to plaintiff’s reputation; and
  4. is at fault – usually, that the defendant knew that the statement was untrue (known as “malice”).

However, because of the court’s bias in favor of free speech, the nature of the evidence needed and elements of the claim, defamation is a difficult and expensive claim to prove. The courts are equipped to grant two types of relief: award money damages and/or issue a court order called an “injunction” requiring that the untrue statements be removed from the publication.

There are a host of problems faced by the injured party seeking the assistance of the courts. You can’t always determine who posted the negative statement. While it may be possible to track the source of the lie to a specific email address or computer, if the trail leads to a publicly accessible computer at an internet café, there may be no way to identify the person who posted the blog. If so, there is no identified person to sue.

Internet service providers (“ISP”) argue that they are merely “bulletin boards” and do not have the power or capacity to screen the information posted through their web access. In addition, ISPs have their own free speech protection. As a publisher of defamatory materials, they have no liability, but can be required to remove false information posted through them. However, they also have a large legal budget and you may be tangled in expensive litigation to obtain the favorable result that you seek.

It can be challenging to determine if a statement is untrue or simply a negative opinion. Online statements can be crafted to obscure an outright lie to make it sound like the blogger’s opinion. The courts will be reluctant to limit free speech where the statement is not clearly false.

Does the blog posting really hurt your business or business reputation? How many people will really see it? Of those that see it, how many will really believe it and rely on it? Are there positive postings that will minimize the effect of the negative one? There is a cartoon in the current New Yorker magazine by P. C. Vey depicting a man drinking at a bar telling his companion “Being falsely accused on social media has left my life largely unchanged.” While the false information may drive us crazy, before time and resources are spent in response, it should be determined if it really matters.

There are law firms for hire to represent the interests of persons aggrieved by bloggers. While we hear in the news about the few successful cases brought against offending bloggers, the more frequent successful outcome may be those cases in which the ISP agreed to, or was required to, remove the offending posting. In reality, however, by the time that occurs, the offending post may have been replaced over time by other postings and may no longer even be seen by persons searching your name.

There are also companies like “Reputation Hawk” and “Reputation.com” which offer “online reputation management” services for a fee which will monitor the internet for negative postings, manage your online reputation, and offer some assistance if untrue or unfair statements are made. Whether such services are effective or worthwhile are up to one’s judgment, situation and experience. They will likely be less expensive than filing a defamation lawsuit.

Before you expend resources to address the problem of negative online postings, I suggest that you ask a few questions and discuss the answers with your legal counsel:

  1. How many of my future customers look me up online before doing business with me?
  2. Are there sufficient positive reviews about me to overcome the negative one?
  3. Is the negative statement so damaging that it can’t be ignored?
  4. What resources do I reasonably have to deal with this problem?
  5. If some action is necessary, what are my goals and what is the best and most efficient way to reach those goals?

Let your outrage about the lie subside, then calmly analyze the situation, consider your alternatives, get some advice, and remember that the best way to maintain your reputation is to be a good, respectful and professional property manager.

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Phone: (303) 758-0500 | Fax: (303) 969-0501

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