For many dealers, the campaign to overcome a bad review that a dealer thinks is based on misinformation begins when the review gets posted. “We’ll get it removed or we’ll sue them,” they will say. That is not easy, cost effective, or a recipe for success.
Demanding Deletion of the Review. When a business objects to a review as containing false information, the host site may or may not investigate and remove it. More likely, in a practice many find objectionable, a site will offer the complaining business the option to become a paying member or advertiser entitled to have positive reviews and advertisements displayed more prominently on the site. “Reputation repair” companies outside the site may claim to “clean up” a business’ online reputation – for a fee. A dealer not willing to submit to such tactics will often be unsuccessful and ask its attorney to take legal action.
Suing. Can a business file a successful legal action when the information provided by a user, and posted online, is false? Short answer: the sites are largely immune from lawsuits for comments posted by their users, and it’s an expensive, uphill battle to find and sue the user.
You can bring a civil lawsuit for slander or libel against a person who “communicates,” or “publishes,” a false statement that harms the reputation of your business. However, the federal Communications Decency Act (“CDA”) immunizes online service and content providers like DealerRater.com, Cars.com, My Dealer Report.com, and Yelp.com from civil lawsuits for defamation or libel if they only publish, and do not alter, the actual content of third party user “reviews.” The CDA states that these online service providers are not to be considered “publishers” or “speakers” of the content independently created or developed by their third-party users, unless they created or developed part of that content. The CDA also protects any subjective “editorial” activity, including any decisions relating to how or whether to publish or exclude any material that third parties seek to post online. The CDA gives these sites the discretion to keep or delete user posts. It makes no difference that the target business claims they are defamatory or libelous and that they are false. Courts have found providers are immunized from suits for defamation or similar torts, even when the provider arguably exercised its “editorial” publishing functions in bad faith, had actual knowledge of the statements’ falsity, or deliberately manipulated the HTML code for paying customers to make certain reviews more visible in online search results.
If the site is probably immune from a civil suit for libel or defamation, what about the potential liability of the original poster for a review including false information? While the target business may have a solid claim for defamation if the information posted on the review is actually false (and not just opinion), it may be difficult to learn the user’s identity. The majority of these consumer review sites allow users to conceal their identities with fictitious user names. Most consumer review sites have confidentiality policies and will refuse to reveal identifying information of users without a court order. Obtaining the identity of a user through the courts generally requires proof that the information is necessary to a viable legal claim, and courts in different states use at least ten slightly different “unmasking” tests. The tests seek to balance the users’ Constitutional First Amendment right to free expression and anonymity of protected speech against the rights of those who have a potentially viable cause of action for defamation. For example, in Virginia, the procedure to enforce a subpoena for records regarding the identity of an otherwise anonymous internet poster is governed by statute: Va. Code § 8.01-407.1. A plaintiff must show: (1) notice of the subpoena to the user via the internet service provider; (2) communications made by the user are or may be tortious or illegal; (3) other reasonable efforts to identify the user have proven fruitless; (4) the identity of the user is important to the claim or defense; (5) no motion challenging the viability of the lawsuit is pending; and (6) the entity to whom the subpoena is addressed likely has responsive information. Other states use similar tests that make discovery of the identity of a defamatory user difficult.
Because of these hurdles, dealing with false negative reviews on a one-by-one basis is not a solid strategy. A host site may or may not respond to requests to remove a negative review based on false information, and legal threats may not be very threatening. The best strategy for dealing with occasional negative reviews with false information is to recognize that they may be inevitable and that long term, continuous efforts to encourage satisfied customers to post reviews is the best plan.
Many good reviews will dilute the impact of a negative one, and they will raise the dealer’s overall rating. We don’t pretend this is easy. As dealers know from years of dealing with factory CSI questionnaires, it is hard to get satisfied customers to respond even when they are just filling in boxes that they are satisfied. How does a dealer get satisfied customers to post online reviews? It is hard. It takes a focused and ongoing effort by dealership personnel with a job function to encourage positive reviews.
Manage the process carefully. At least one recent lawsuit against an outside reputation management company charged it with posting phony reviews. One well known web host recently removed all reviews for users it felt it had reviews of “suspicious” origin. The solution is a sustained effort to encourage as many legitimate, favorable reviews as possible.