Let’s go over the nuts and bolts of writing a non-defamatory–but critical–online review.
Online business reviews are a hot topic these days, both for marketers and legal teams. Because of this, a lot of lawyers have dedicated a lot of ink to the aftermaths of online reputation attacks.
But not much has been penned about the inverse: How to write a critical review without fear of litigation.
Tip #1: Don’t Troll
Don’t become a troll writer and poster.
The fake review business is booming. Partly because people have developed ingenious methods to create false reviews that bear convincing markings—like a verified purchase badge on Amazon.com—which enhance the reviews’ authenticity and increase their the overall effectiveness.
But, just as there are ways to make fake reviews look legit, there are also ways to track down the people who post them.
And as the years pass, more technologically savvy judges are taking the bench. Since these new crop of judges have a better grasp on how the “Internet works” than previous judges, who had limited interaction with the Web in their lifespans, more of them are willing to issue certain types of court orders, compelling ISPs and websites to hand over identifying information in service of a claim.
So, it stands to reason that if you don’t want to risk being sued for defamation, don’t agree to write and post fake reviews.
Tip #2: Don’t Overindulge and Then Post
Refrain from “posting-while-pissed.”
Here’s a hard truth: alcohol and other substances lower inhibitions. They also encourage exaggerations. Put one and one together, and then mix in a perturbed consumer, in front of a computer, after a bad day at the office? The result can be an explosive rant. And sometimes that rant crosses the legal line.
Now, please don’t read this wrong. Although brash, it's fine to litter a post with expletives or say a service “s*cks” and warn people against it.
But it is not ok to lie about people, professionals or businesses. It’s not a matter of free speech, it’s a matter of unfair and deceptive marketing and defamation—and in some cases criminal accusations.
Tip #3: Don’t Depend in “IMO”
Don’t try to use the “In my Opinion” (a.k.a., “IMO”) trick.
Millions of people mistakenly believe that prefacing any statement with “in my opinion” or “IMO” will magically shield them from the law’s go-go gadget arm.
News flash: it won’t.
If you make a materially false statement of fact, that causes the subject legitimate harm, it probably won’t matter if the statement has an IMO in front of it. Even with the qualifier, a judge may not view the statement as “pure opinion.”
Now, this is not to say that opinions are defamatory under United States law. That is not the case—pure opinions are perfectly acceptable forms of speech. But slapping an “in my opinion” tag on an otherwise defamatory statement is not impenetrable defamation armor.
Tip #4: Be Honest
At the beginning and end of the day, the best way to avoid a legitimate defamation claim is by not lying.
Because remember: it’s not defamation if it’s true. Reporters and bloggers should also make a concerted effort to engage in proper due diligence. Check sources like your livelihood depends on it—as it may. Even if you misreport (i.e., publish inaccurate information), if you can prove that you engaged in research and fact checking, a court may not be unable to find negligence on your part, thus rendering the claim moot.
It’s a wild world out there on the Web. Lots of potholes, trap-doors and temptations can lead to a courtroom. To avoid them: don’t lie, don’t post inebriated, don’t try to IMO your way out of it and don’t write fake reviews.
If you take Ron Burgundy’s advice and keep it classy, you should be able to avoid a civil online defamation lawsuit.
(And if not, get in touch with Kelly Warner’s Internet libel division.)