BAD CONSUMER REVIEWS ONLINE: STRATEGIES FOR REMOVAL

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1 BAD CONSUMER REVIEWS ONLINE: STRATEGIES FOR REMOVAL By: Karl Kronenberger Marketing professionals often struggle to make the best decision regarding negative content about their business s brand on Yelp and other popular review websites. Negative comments on these sites are sometimes legitimate consumer reviews, which are constitutionally protected speech. However, Web posters cross the line if they: Post false and defamatory content; Post content with ulterior, nefarious motives; Are competitors but pretend to be consumers and post fake reviews; Mix legitimate content with inflammatory allegations to try to harm a business. A business should attempt to contain the potential damage and if possible get the harmful content removed from the Internet. However, businesses face a balancing act and must weigh the costs of litigation and perhaps additional exposure (aka the Streisand Effect ) against the loss of revenue and damage to their brand as a result of the negative posting. Determining how to respond to negative content involves a four-step process, each step of which is addressed below. 1

2 Step One: Analyze the Harmful Content One crucial question is whether the content contains false statements of fact that harm the business or whether the statements are simply the constitutionally protected opinion of the poster. Every state has defamation laws that provide grounds for a lawsuit if a person makes false and defamatory statements of fact about another person or a business. However, consumers opinions or consumers truthful comments about their personal experiences with a product or service are protected speech under the First Amendment. In addition to the fact/opinion analysis, a business should also check the posting for the presence of logos, marketing materials, or other text or graphical content owned by the business. Their appearance may constitute a technical The Four Steps in Determining How to Respond Analyze the Harmful Content Consider Contacting the Website Hosting the Negative Content infringement by the poster of the business s copyrights or trademarks Assess the Personality of the Poster Decide Between Online Reputation Management or Legal Action If the posting discloses confidential information about the business, it was likely published by a former employee. Every state has a trade secrets law, and powerful legal remedies are available if trade secrets have been disclosed. Further, most businesses insert confidentiality requirements into employment agreements, and these contractual provisions can be enforced after employment is terminated. Thus, identifying potential confidential information is critical. Step Two: Assess the Personality of the Poster After determining what legal issues are at stake, the business must assess the person who posted the negative content. Does the poster seem to have a vendetta or an ulterior motive? Does the person seem motivated by strong principles that overshadow the facts of the dispute? If so, the business must be careful about poking the bear and escalating a moderately bad problem with a minimal effect on sales into a serious problem with a significant effect on sales. 2

3 In deciding whether to make contact with the poster, businesses should weigh potential damage against potential risk. If a negative comment is not causing discernible harm and the poster seems somewhat unpredictable, the business may want to avoid direct contact with the poster. However, if the current harm is significant, reaching out to the poster may be worthwhile. If a consumer is merely dissatisfied with a product s performance, the business could offer a refund or replacement product. However, in cases where the nature of the product or the consumer complaint leaves the business little to offer the consumer, that discrepancy should factor into a decision about the complaint. If a business decides to go ahead and make contact with the consumer, it needs to remember that anything said may very well get posted on the Internet immediately. Step Three: Consider Contacting the Website Hosting the Negative Content If the risks of contacting the consumer directly are too high, a business should consider contacting the website that hosts the harmful content. Yelp and some other sites have clear guidelines for reviewers, and businesses may contact the website and ask that a posting be removed if it violates the site s internal guidelines. On Yelp, anyone can flag a posting and state all the legal reasons why the posting should be removed. The arguments that can be made are numerous and include reasons such as referencing third-party opinions and posting something that could be construed as promoting another business. On Yelp, a posting may be removed if it violates the site s internal guidelines After examining the negative review with these content guidelines in mind, the business should draft the argument to be included in its flag of the review. On Yelp, for example, the character limit requires that postings be brief, but the flag should still methodically reference each content guideline that the review violates and explain why. This process is highly effective for reviews that clearly violate the Yelp content and review guidelines. Based on this firm s experience, Yelp takes action on these flags and removes content that violates its terms and content guidelines. 3

4 Here are Yelp s content guidelines: Inappropriate content: Colorful language and imagery is fine, but there s no need for threats, harassment, lewdness, hate speech, and other displays of bigotry. Conflicts of interest: Your contributions should be unbiased and objective. For example, you shouldn t write reviews of your own business or employer, your friends or relatives business, your peers or competitors in your industry, or businesses in your networking group. Business owners should not ask customers to write reviews. Promotional content: Unless you re using your Business Owners Account to add content to your business s profile page, we generally frown upon promotional content. Let s keep the site useful for consumers and not overrun with commercial noise from every user. Relevance: Make sure your contributions are relevant and appropriate to the forum. For example, reviews aren t the place for rants about a business s employment practices, political ideologies, extraordinary circumstances, or other matters that don t address the core of the consumer experience. Privacy: Don t publicize other people s private information. Please don t post closeup photos of other people without their permission, and don t post other people s full names unless you re referring to service providers who are commonly identified by their full names. Intellectual property: Don t swipe content from other sites or users. 4

5 Yelp also offers these review guidelines, on the same page as the content guidelines: Personal experience: We want to hear about your firsthand consumer experience, not what you heard from your co-worker or significant other. Try to tell your own story without resorting to broad generalizations and conclusory allegations. (This personal experience guideline is especially important because negative reviews often include references to negative comments by third parties. Also, the Yelp terms of use prohibit writing fake or defamatory reviews.) Accuracy: Make sure your review is factually correct. Feel free to air your opinions, but don t exaggerate or misrepresent your experience. We don t take sides when it comes to factual disputes, so we expect you to stand behind your review. Review updates: Review updates should reflect a new experience or interaction with the business. Don t tell the same old story you ve already told. If you d like to add new insight to an old experience, just edit your review instead of creating a new update. The policies of other review websites vary, and some claim they never remove any content, such as RipOffReport.com. In these cases, businesses should still review the terms and conditions, and abuse policies, of the website and contact the site before getting a lawyer involved. Even though websites that host consumer reviews are immune from defamation liability under Section 230 of the Federal Communications Decency Act, the wording of the statute and its legislative history demonstrate that Congress wanted to encourage websites to self-police and remove unlawful content posted by third parties. In fact, the statute protects websites that remove content, and a business can state this in a letter or an asking the website to remove a post. Step Four: Decide Between Online Reputation Management or Legal Action If the website hosting the negative content will not delete it, a business must consider whether to consult an attorney or continue to engage in so-called reputation management. Reputation management can be defined as influencing and/or controlling an individual s or business s reputation on the Internet, with the goal of moving negative content off of the first page of Internet search engine results. Some examples of ethical tactics used in reputation management include publishing original content, obtaining backlinks using keywords that 5

6 contain a business s brand, submitting press releases to authoritative websites, and securing mentions (and backlinks) of the business on third-party sites highly favored by Google. If reputation management techniques are not effective, and if the business thinks the review is unlawful because it is defamatory or violates a private agreement between the business and the reviewer, the business should contact a law firm experienced in these matters. If the negative content contains copyrighted materials, quick pre-litigation action may be able to get the content removed using copyright laws. If there are false and defamatory statements or statements that violate confidentiality agreements or trade secret laws, litigation may be an option. Even if a website claims it never takes postings down, a business may be able to get Google to remove the link to the offending content from its search engine results. For example, if a business obtains a judgment against the person who made the posting, that judgment may be served on Google, resulting in Google removing the link to the content from its search index. A business may be able to get Google to remove the link. Summary Even though negative content about a business can result in significant financial losses, businesses facing negative reviews and other disparaging content should methodically analyze the facts and their legal options, starting with contacting the reviewer and ending, as a final option, with potential legal action. KARL KRONENBERGER is a partner with Kronenberger Rosenfeld, LLP, a San Francisco-based Internet, technology and media law firm. Mr. Kronenberger can be reached at karl@krinternetlaw.com or (415)

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