Negative Online Reviews and Legal Threats (Opinion)
Originally posted on thisisreno.com:
A This Is Reno reader recently sent in this inquiry:
I had eaten at a restaurant with my family and received very bad service. I decided to post a negative review on Yelp. Since then I received a letter from an attorney representing the business owner demanding that I remove my Yelp review or else I would be sued for defamation. My question is, can I get sued for this and is this even right that they are trying to scare me into changing my review? Thank you for taking the time to read this and would appreciate your feedback.
In order to properly answer our reader’s question we need to provide the legal definitions of defamation, libel, and defamatory. Nevada recognizes both libel (written) and slander (verbal), however for the sake of time, I will focus on libel law since it is the only one that applies to this particular fact pattern.
The legal definition of defamation (from Black’s Legal Dictionary) is the act of harming the reputation of another by making a false statement to a third person. Another legal definition is a false written or oral statement that damages another’s reputation. Libel, again defined by Blacks’ Dictionary, is a defamatory statement expressed in a fixed medium, especially writing but also a picture, sign or electronic broadcast. Finally, defamatory is, tending to harm a person’s reputation, usually by subjecting the person to public contempt, disgrace, or ridicule, or by adversely affecting the person’s business.
In order to prove defamation in Nevada you must establish 4 elements:
That the defendant made false statements of “fact” about you;
That the defendant made an unprivileged publication of the statement(s) to a third party;
That the defendant acted negligently, recklessly or intentionally; and
That as a result of the statements, your reputation was damaged.
Libel is defined under NRS 200.510:
NRS 200.510 defines libel as the following: Libel is a malicious defamation expressed by printing, writing, signs, pictures or the like, tending to blacken the memory of the dead, or to impeach the honesty, integrity, virtue, or reputation, or to publish the natural defects of a living person or persons, or community of persons, and thereby expose them to public hatred, contempt or ridicule.
As an aside, under N.R.S 200.510, libel can be charged as a crime amounting to a Gross Misdemeanor. The standard of proof is extremely high and Nevada Prosecutors do not usually pursue libel cases unless they are very serious or high profile. Thus most cases are litigated in civil lawsuits brought by the aggrieved party.
Nevada Tort of Business Disparagement:
A tort is a civil wrongdoing in a legal context. It can be used as the basis of a lawsuit and the remedy is often monetary or financial compensation. In Nevada, a tort of business disparagement is closely related to defamation. In order to succeed in a business claim for disparagement in Nevada the Plaintiff must prove; a false and disparaging statement was made, unprivileged publication of that statement by the defendant, malice (occurs when a person who makes a claim despite either knowing the claim is false or recklessly disregarding the chance that the statement is false) and damages.
Some special considerations also apply to business disparagement torts in Nevada, a Plaintiff must also show that the Defendant published a disparaging statement with the intent to cause harm to the Plaintiff’s monetary interest, or that the Defendant published a disparaging remark knowing its falsity or with reckless disregard for its truth. Additionally the Plaintiff must also prove that the Defendant’s disparaging remarks resulted in “actual economic” loss to the Plaintiff in order to succeed in the lawsuit.
Consumer Protections: Consumer Review Fairness Act 2016
The Consumer Review Fairness Act (CRFA) protects people’s ability to share their honest opinions about a business’s products, services, or conduct, in any forum, including social media.
The Consumer Review Fairness Act was passed in response to reports that some businesses try to prevent people from giving honest reviews about products or services they received. Some companies put contract provisions in place, including in their online terms and conditions, that allowed them to sue or penalize consumers for posting negative reviews.
The law protects a broad variety of honest consumer assessments, including online reviews, social media posts, uploaded photos, videos, etc. It doesn’t just cover product reviews. The law also applies to consumer evaluations of a company’s customer service.
The Consumer Review Fairness Act makes it illegal for companies to include standardized provisions that threaten or penalize people for posting honest reviews. For example, in an online transaction, it would be illegal for a company to include a provision in its terms and conditions that prohibits or punishes negative reviews by customers. (The law doesn’t apply to employment contracts or agreements with independent contractors, however.)
The Act makes it illegal for a company to use a contract provision that bars or restricts the ability of a person who is a party to that contract to review a company’s products, services, or conduct, imposes a penalty or fee against someone who gives a review, or requires people to give up their intellectual property rights in the content of their reviews.
The law says it’s OK to prohibit or remove a review that:
contains confidential or private information – for example, a person’s financial, medical, or personnel file information or a company’s trade secrets;
is libelous, harassing, abusive, obscene, vulgar, sexually explicit, or is inappropriate with respect to race, gender, sexuality, ethnicity, or other intrinsic characteristic;
is unrelated to the company’s products or services; or is clearly false or misleading.
However, it’s unlikely that a consumer’s assessment or opinion with which you disagree meets the “clearly false or misleading” standard.
Congress gave enforcement authority to the Federal Trade Commission and the state Attorneys General. The law specifies that a violation of the CRFA will be treated the same as violating an FTC rule defining an unfair or deceptive act or practice. This means that a company could be subject to financial penalties, as well as a federal court order.
Generally speaking, here are some guidelines on posting fair and acceptable Yelp reviews:
Offer opinions, not allegations. Generally speaking, opinion is protected by the First Amendment. You can say you thought a restaurant’s service was slow or the food tasted terrible; however, if you make a specific allegation, such as commentary about the sanitation of the location, you could be sued if the statement isn’t true and you know, or should have known, it’s false.
Your truth may be another’s personal attack. Truth is protection from defamation lawsuits, but your version of the “truth” may differ from a company or service provider. So be careful about the way you write your reviews. Use factual statements of the service or product in an analytical tone that indicates a fair assessment of your concerns.
Skip the name-calling. Tone down the rhetoric and don’t go on a long rant or vent your emotions. The goal of your review should be to help others make an informed decision not to punish the business or service provider. Consider setting aside your review’s first draft for a couple of days, then review your draft in a better frame of mind before posting.
Nevada Anti-SLAPP Laws NRS (NRS 41.653-670):
Nevada has adopted strong laws protecting people from lawsuits that seek to attack people based upon their lawful public speech. These types of lawsuits are dubbed “SLAPP” suits, an acronym for Strategic Litigation Against Public Participation. Laws designed to thwart these anti-speech lawsuits are called “anti-SLAPP” statutes. The term denotes “a meritless lawsuit that a plaintiff initiates to chill a defendant’s freedom of speech and right to petition under the First Amendment.” Not every defamation lawsuit is a SLAPP suit, but many actions based on false online reviews may fall under the purview of an anti-SLAPP statute. If a defendant succeeds in bringing an anti-SLAPP motion, there are significant consequences. The court must award the successful movant his or her reasonable costs and attorneys’ fees, and potentially up to an additional $10,000.
In the last 3 years, the Nevada Supreme Court issued multiple decisions related to Nevada’s anti-SLAPP law and how the law should be applied in specific cases.
The Nevada Supreme Court has explained: “The hallmark of a SLAPP lawsuit is that it is filed to obtain a financial advantage over one’s adversary by increasing litigation costs until the adversary’s case is weakened or abandoned.” Under Nevada’s anti-SLAPP statute, if a defendant believes a lawsuit against him is a SLAPP action, he may file a motion to dismiss the case.
For a dramatic rendition of how Nevada’s anti-SLAPP law should be applied research Pope v. Fellhauer (No. 74428 – NV March 21, 2019, unpublished). A case that involved a distinctly unneighborly dispute between three cul-de-sac neighbors. The Nevada Supreme Court was unanimous in its Pope v. Fellhauer decision for the litigants who had sued for defamation. This is significant because it shows a clear boundary as to when Nevada courts will view certain speech as not protected and not subject to anti-SLAPP dismissal. Individuals cannot hide behind anti-SLAPP laws when they engage in public mud-slinging, name-calling, or unfounded allegations of a criminal nature. I highly recommend reading the full case.
You should always consult with an attorney of your own. In most cases, that is the best way to access the legal process. This column is meant to educate, not represent.
Henry Sotelo is a practicing attorney in Northern Nevada. He has been a licensed attorney in Nevada since 1987, practicing mostly in the area of Criminal Law. Sotelo has been teaching the law to people in Northern Nevada for 17 years at Truckee Meadows Community College as a full-time College Instructor. Sotelo currently is serving as one of the City of Reno Legal Defenders doing criminal law defense and serving on two of Reno Municipal Court’s Specialty Courts: The DUI Therapeutic Specialty Court and the CAMO-RENO Veterans Court. Sotelo is currently serving as a City of Reno Administrative Hearing Officer.
Additionally, Sotelo serves on the City of Reno Human Rights Commission and the Washoe County Behavioral Health Board. Sotelo donates legal hours to the Domestic Violence Resource Center on a monthly basis.
Rachael Chavez is a graduate of the University of Nevada with a Bachelor of English as well as a graduate of Truckee Meadows Community College with an AA in Applied Science, Paralegal Studies. Rachael has been a paralegal for 15 years and currently works for The Barber Law Group.