Libel-Kitteh has his sights on YOU!
As a professional writer, I try to be meticulously careful when I write online reviews on sites like Google Maps and Yelp. While this form of publication may be far more casual than say, a magazine, it is a public medium nonetheless.
Well, a few months ago I slipped up on this all-important rule when I visited an unnamed store of anonymous goods here in Denver that left me conflicted, emotional, and angry about what I saw inside. I wrote a scathing review of the establishment online and foolishly let emotion seep into it. I contacted the proper government offices to have the store investigated for potential violations, and I alerted the Colorado branch of the Better Business Bureau.
Two weeks later I got a letter in my home mailbox from the store owner... who figured out which review online was mine and threatened to sue me for defamation if I so much as spoke another ill word about her place. While she did clarify answers to some of my concerns, others she brushed off with venomous pride and claimed what many upset store owners do: that I had tarnished the spotless reputation of one of the best stores in town, and that anything I said, even to friends, would get back to her...
She couldn't do that right? I have freedom of press, she had to be the one in the wrong... Her store's reputation was hardly spotless, I saw several other reviews listing the same concerns as mine. What if she was right though? I re-read my review and while I did not print anything that was a lie or intended to harm her reputation, I had been quite emotional. What if she was a disgruntled CIA agent and she really could bring down the hammer of justice on me for so much as telling my sister-in-law not to go to that establishment? I was furious that she'd used the BBB's resources to send such a threat, but could she actually stranglehold my freedom of press?
While I'm not a lawyer, and anything I say here should be double-checked with the advising of proper legal counsel, when I consulted other writers who knew more about defamation law, I realized her accusation was completely ludicrous.
The truth is, it is an incredibly common thing for store owners to jump online and cry, "Slander!" when they see bad reviews. After all, their store is usually their baby, and you've just gone onto a public forum and pointed out all the ugly flaws of that baby. While writers do not so much need to worry about slander (because that involves spoken word), we do have to keep libel in mind. Libel, in short, is when a person uses the written word to willfully defame a person's or an establishment's reputation using lies. A more detailed summary from the Media Law Resource Center states:
"In order for the person about whom a statement is made to recover for libel, the false statement must be defamatory, meaning that it actually harms the reputation of the other person, as opposed to being merely insulting or offensive.
The statement(s) alleged to be defamatory must also have been published to at least one other person (other than the subject of the statement) and must be "of and concerning" the plaintiff. That is, those hearing or reading the statement must identify it specifically with the plaintiff.
The statement(s) alleged to be defamatory must also be a false statement of fact. That which is name-calling, hyperbole, or, however characterized, cannot be proven true or false, cannot be the subject of a libel or slander claim.
The defamatory statement must also have been made with fault. The extent of the fault depends primarily on the status of the plaintiff. Public figures, such as government officials, celebrities, well-known individuals, and people involved in specific public controversies, are required to prove actual malice, a legal term which means the defendant knew his statement was false or recklessly disregarded the truth or falsity of his statement. In most jurisdictions, private individuals must show only that the defendant was negligent: that he failed to act with due care in the situation.
A defamation claim -- at least one based upon statements about issues that are matters of public interest -- will likely fail if any of these elements are not met."
It is incredibly difficult for courts to prove online reviews to be true or false, and those in the journalism industry will tell you that libel is defensible by truth, opinion, and observation.
In the spirit of taking the high ground, I did go back and rewrite my review... Not to coddle the bruised ego of the store-owner but for my own professional integrity. I removed all the emotion and adjusted those points which she had addressed adequately... but the rest of my complaints remained. I later found that she had lashed out at other reviewers online, and only because she had my address had she been able to take the threat so far.
The truth is, someone could write something so churlish as, "Bob's Tire Farm sucks and the owner is a noob!" and it would not be libel, because that is the reviewer's opinion, however immaturely stated. As a professional writer, here are a few basic ways you can protect yourself from threats of libel:
- Use Terms of Observation: Make use of terms like "I saw", "In my observation", and "It appeared". If you honestly observed something in an establishment, than it makes sense that those observations would mold your perception of fact, even if that perception is different than the owner's.
- Keep Emotion Out: If you're upset when you sit down to write a review, walk away. Casual Jane can get away with writing a review in anger, but you, the professional, make yourself vulnerable for future assault since this is your career. Write down your thoughts in a rough draft concerning what you want to report, but force yourself to wait a day or so to cool down before you write the review. Honestly, reviews where the writer reports the faults of an establishment objectively, even if those faults are heinous, will be taken far more seriously than reviewers who use the web to vent their rage.
- Be Careful with your Anonymity: I am not sure what I was thinking when I used my review as the basis for my complaint to the BBB (like I said, emotion makes you do absurdly dumb things), but that ended up biting me in the backside. Make sure your screen name on reviewing sites is not a version of your real name. If you file complaints with other organizations, change the wording so your complaint cannot be connected to the bad review. It's just asking for a fire-fight since the store owner will get a copy of that BBB complaint with your personal information on it.
- Use Opinion to your Advantage: In the same fashion as using terms of observation, go out of your way to make sure the reader knows your review is your opinion. You cannot sue someone for defamation just because their opinion offends you. Be careful when trying to claim that something is a fact, you usually don't need to. Opinion can be just as strong when paired with observation.
- Never, EVER Lie or Pad your Review: This is where you get onto shaky ground that truly could land you in a courthouse. No matter how angry a business or person makes you, never conjure blatant lies about them to vent your anger and damage their reputation. In a world where resume's are regularly padded with exaggeration, pulling accusations out of thin air to make yourself sound more credible is just wrong. It crosses the line of abusing your power to decimate an enemy with the written word. We're kind of like Spider-Man, writers... with our great power comes great responsibility. Don't abuse it.
- If you can Lodge a Complaint with the Store, Do it: While store owners will claim that you are obligated to lodge a complaint with them before you write a bad review, you are not. If you feel unwelcome in the store or have whatever reason to not want to file a formal complaint, you do not have to... However, if you do see an opportunity to file a complaint before you write your review, sometimes that can actually help see the issues you were concerned about resolved. While in an ideal world, store owners should look online and use bad reviews the same way they would a complaint box, many only see business being driven away from their store and they freak out. If the owner or manager seems reasonable, or if they have a higher company supervising, try to file a formal complaint. However, you have no obligation to do so if you feel unwelcome or worry that your complaint could result in a verbal sword-fight.
In summary, if you write reviews, at some point in your career, someone will probably try to bully you with threats of libel. Understand your rights, the laws protecting those rights, and also the position of the person you're reviewing... When you threaten someone's little darlings, arrows are sure to fly.
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