negative reviews and threats of lawsuits: let's not give in to corporate bullying

There's a new bully in town, and he's not going after fat kids in the school cafeteria. He's a corporate bully, and he's gunning for you, his dissatisfied customer.

An increasing number of companies are threatening lawsuits against customers who post negative online reviews about their products or services. At least one company has actually sued a former customer for defamation, based on negative reviews - and won.

This is a chilling development for anyone who cares about free speech, a free internet, and consumer advocacy. But it may not be as dire as it sounds.

A slightly more level playing field

We are bombarded with advertising at every turn. Everywhere we look, companies are claiming that their products will make us beautiful, cooler, more connected. That we'll look smarter, live longer, enjoy our lives more... if only we buy their products. Our world is filled with false advertising, if not by explicit claim, then certainly by implicit suggestion.

If these claims turn out to be untrue, there's little we can do about it.

In the past, when we complained about a company, our complaints reached very few ears. We could write a letter to their corporate headquarters, and we could tell our own contacts, but for an ordinary person with no media access, it ended there.

The internet has changed all that. Now consumers have the opportunity to create a slightly more level playing field. If we have a bad experience with a company, we can warn many more people away from their products and services.

Not only has the internet given us the means to spread the word, but internet culture encourages us to share information with others. When a product falls apart, when a contractor does shoddy work, when a restaurant offers consistently terrible service, we feel something bordering on a responsibility to warn others away from a similar experience.

(Is it a level playing field, even now? My post about bad customer service from Heys Luggage (here, plus two follow-ups) is Google-able if you're searching. But Heys' own advertising on billboards, in magazines, and online is visible by hundreds of thousands of people every day.)

The opportunity to share information online has been incredibly empowering for consumers. So perhaps it's not surprising that many companies are pushing back. Through letters threatening lawsuits, they are trying to frighten consumers away from the culture of information-sharing, and trying to create a culture of self-censorship. They are corporate bullies, and their ranks appear to be growing. I found numerous stories, most with sensational headlines designed to fuel the fear, warning people to watch what they say or they'll be sued.

A letter is not a lawsuit

Many of the news stories I've seen put the onus on the consumer to avoid potential threats. The Toronto Star's consumer reporter Ellen Roseman offers tips for consumers posting reviews, such as sticking to facts and avoiding inflammatory language. Good advice, for complaints and almost everything else. But stories like these don't address the basic inequity at play.

A consumer posts an online review that a company finds potentially damaging. The company refers the complaint to its attorney, who then writes a standard "cease and desist" letter. The letter demands the consumer remove the offending review from the internet and threatens a lawsuit. But - and this is the important bit for consumers to know - the letter doesn't mean there are solid grounds for a lawsuit. It doesn't mean that the company would necessarily win a lawsuit, or even that they would invest the resources in a legal proceeding in the first place. The letter is the equivalent of shaking your fist and saying, "Take that back, or else!" It looks official, what with the letterhead and legalese and all, but it has no teeth. They may use the word demand, but it's actually more like a request. (The cease and desist letter is also a necessary precursor to a potential future lawsuit.)

Sending a letter is low-impact for the company. It costs perhaps an hour of some lawyer's time. But for the person in receipt of the letter, it can be frightening. Even the possibility of a lawsuit is enough to get most people to retract their reviews. And so, even though the review was factual and there is little chance of being hurt by a lawsuit, the consumer deletes the review.

Now the company's bad behaviour is not exposed, and all it cost was a letter.
Nevertheless, even the threat of litigation is a powerful option for contractors. When a Toronto couple posted a 2,000-word negative review about their $400 home improvement project, their contractor threatened litigation unless the review was removed. Intimidated, the couple revised their review to a mere 30 mild words.
In this case, it sounds like the consumers might have been a little over the top. Was it really necessary to post 2,000 words? Would a factual and not-heated 50 words have avoided the threat of litigation? Perhaps. But the threat of litigation was effective. The consumers were bullied, and the review was diluted.

As a customer-service person, I find it a bit mind-boggling that a company would choose this route, rather than practice a bit of damage-control. A legal spokesperson for Yelp - which was involved in an actual lawsuit - said:
Litigation is not a good substitute for customer service. Businesses that try to sue their customers into silence rarely prevail, end up wasting their own time and money, and usually bring additional, unwanted attention to the original criticism.
In one case, a company threatened a lawsuit against a consumer who posted a negative review... then Amazon dropped the company from their website. Then there was the crazy restaurateur in Ottawa, whose online bullying made international news.* OK, it was only The Daily Mail. But still.

Dietz v. Perez

The one documented instance where a contractor followed through on the lawsuit threat - where a customer was actually sued - was far from typical. Following the reports as the story developed, I could tell that there was a lot of bad blood between the two parties. The contractor and the homeowner apparently knew each other before the work was done; the consumer claims her home was damaged and her jewelry was stolen; the contractor was claiming $750,000 in damages. The fact that the case even went to trial speaks of two parties that have dug in their heels. Most consumer lawsuits are settled out of court.

But to the dismay of free-speech and consumer advocates, the consumer was found guilty of defamation, although no damages were awarded. And the court ruled that the offending review would remain online, unaltered.

So, that happened. The threat of a lawsuit may actually turn into a lawsuit.

Does that mean if you write a factual negative review, you will be sued? No, it doesn't.

This is an important piece to remember. Follow good behaviour guidelines. Stick to the facts. Avoid sweeping generalizations. Don't get personal. (Ellen Roseman's guidelines are very good.) But if you do receive a letter from a company, take a deep breath. Read the letter carefully. Anyone can threaten anything. It doesn't mean they have grounds for an actual lawsuit, or that they'll choose to invest the resources in one, even if they do.

Let's not be bullied

To be sure, the consumer is not always right. There are people with an axe to grind, there are lies and exaggerations. There are trolls. So if you feel your business has been unfairly maligned, what recourse do you have? TripAdvisor offers restaurant and resort management the opportunity to respond to negative reviews. Smart management will apologize, thank the customer, and pledge better future service. Not-so-smart management gets into arguments on the TripAdvisor site.

Online reviews are potentially powerful tools. We have a responsibility to use them wisely. But let's not be afraid to use them at all.

* An Ottawa restaurant owner was so furious - and, it would seem, so unbalanced - that she sought to disparage the customer's reputation with the customer's employer. She sent "sexually suggestive e-mails" to the woman's workplace, and created an explicit dating profile in her name. In this case, the customer sued, and the restaurant owner was found guilty of libel. As far as I can tell, the customer posted one bad review, and the restaurant owner hounded her for two and a half years. In other words, a crackpot troll.

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