Civil Litigation

Options available for businesses dealing with defamatory reviews

By AdvocateDaily.com Staff

False reviews on Google can seriously affect the hard-earned reputations and bottom lines of some businesses — but there are strategies companies can use when faced with this situation, Toronto litigator and mediator Howard Winkler and Eryn Pond write in The Lawyer’s Daily.

As Winkler, principal and founder of Winkler Dispute Resolution, and Pond, a lawyer with the firm, explain, some reviewers use fake names and/or post reviews that are false and defamatory. Sometimes the reviews are posted by competitors or disgruntled employees.

In addition, they say, Google may be unco-operative in removing these reviews, as it takes the position that it merely hosts third-party content and is not its creator or moderator.

“Businesses might discover that Google will only remove reviews where a court has found that material is illegal and/or should be removed. This is of little use to small- and medium-sized businesses that can’t afford the cost of litigation.”

However, they say, the Supreme Court of South Australia (Full Court) did recently affirm its liability as a secondary publisher after notification of defamatory Google search snippets and hyperlinks.

“If this decision is widely adopted, the company will have to reconsider its ‘hands-off’ approach," they write.

For businesses looking for an effective non-litigious strategy dealing with false and defamatory Google reviews, Winkler and Pond say it may be worthwhile to send a carefully drafted letter to the reviewer — if their contact information is known — that outlines the words complained of, requests the immediate removal of the post and advises that legal proceedings could be commenced against them.

“The reviewer might volunteer to remove the false and defamatory review and the matter may end,” they write.

Google also provides an online process where it can be alerted by businesses to false and defamatory reviews.

“When reporting to Google, a business or its legal counsel should demand that the review be removed immediately, and put Google on formal notice of the false and defamatory statements. In order to preserve a right to sue Google, businesses and their counsel must be careful to comply with any statutory obligations to provide a Notice of Libel. Regrettably, dealing with Google in this way has mixed results, but it is worth a try as a first measure,” say Winkler and Pond.

Also, they say, if a company takes ownership of its Google business listing, it can, among other things, respond directly to any false and defamatory reviews.

“But be careful here. By taking ownership of the business listing, businesses must accept Google’s terms of use, which include choice of forum and law provisions, limitations of liability and indemnity provisions. These provisions, however, may not apply to causes of action that arise outside of the specific terms-of-use provisions,” they write.

Given the prevalence of online business reviews, Winkler and Pond say it is critical that companies encourage satisfied customers to post positive reviews.

"The posting of positive Google reviews might altogether diminish the impact of false and defamatory reviews and also highlight their inauthenticity. At the very least, it provides readers with a more balanced picture," they write.

If these routes fail, Winkler and Pond say another option is to sue the reviewer.

“This involves many steps and will be expensive. If a business is successful in obtaining an Ontario judgment against a reviewer, Google will likely remove the review.”

If the identity of the Google reviewer is unknown, legal counsel may bring a pre-action application for a Norwich Order compelling Google to disclose the reviewer’s name, email address, Internet protocol address and any other identifying information so that a defamation claim may be pursued, they say.

Once the identity of the individual is disclosed, legal counsel may succeed in persuading the reviewer to remove the post and settle the matter with minimal further cost, or, if that fails, a claim can be pursued against them.

In terms of Google’s liability, Winkler and Pond say only deliberate acts can lead to liability as a publisher.

“Google will in the first instance likely be shielded from liability, since it plays only a passive instrumental role in facilitating its business review content,” they write.

However, they add, this will not likely be the case where Google has notice of the false and defamatory statements and fails to remove them within a reasonable time. The Supreme Court of South Australia recently held that once Google received notification of false and defamatory statements, it was liable as a secondary publisher.

It is notable, write Winkler and Pond, that in this case, the court found that Google’s facilitation of the defamatory web pages is both substantial and proximate.

“There can be no doubt that Google, as the ‘host’— and through the placement of business review content in a prominent screen position on every Google business search result — facilitates the publication of Google business review content in a substantial and proximate manner,” they say.

As Winkler and Pond note, there is a strong argument, on established principles, that Google will be liable as a publisher of its business reviews where it has received notification of the false and defamatory reviews and has failed to remove them within a reasonable amount of time. This differs greatly from the situation in the United States, where internet service providers are immune from liability even after notice of defamatory content.

“If Canadian courts follow Australia’s lead, Google, as a co-publisher after notification, will either have to defend the review as would the original poster, or remove the review in order to avoid the cost and exposure of litigation.

“The hope is that with time, Google will become more responsive and proactive with the voluntary removal of demonstrably fake, false and defamatory business reviews,” Winkler and Pond write.

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