Can I Get Sued for a Negative Online Review?

Online reviews can make or break a business’s reputation. Everyone from your family doctor to the neighborhood takeout joint asks you to rate your experience on social media. When you didn’t like your experience, it might feel right in the moment to take the company to task. However, it’s always wise to stop and think before you hit “submit.” The First Amendment broadly protects the expression of opinions, but carelessly posting a negative review can bring legal trouble if what you say crosses the line from protected free speech into defamation. 

If you’re unsure whether your review is protected by the First Amendment, reach out to a talk to a civil rights lawyer to review your case.

The First Amendment Protects Opinions–But Be Sure You Can Back Up Factual Claims

“Determining the line between protected expressions of opinion and defamation is very factually intensive,” says Mariann Wang, who handles civil rights cases at Hecker Wang in New York City. “Avoid threats of violence or deeply derogatory commentary,” even if you’ve got your facts straight. Never attack someone’s race, ethnicity, gender, disability, sexual orientation, or other protected characteristics.

Wang says firing off a particularly scathing response — even under a screen name — doesn’t mean you’ll fly under the radar. “If a company has enough time and resources, they can hire a lawyer or even sue the internet service provider to track down anonymous reviewers,” she says. “You can be held to account for anything you write that is particularly nasty or without factual basis, opening you up to defamation and civil claims or, if you incite violence, prosecution.”

Understanding Online Review Sites

There are many ways to leave your feedback online. You can post negative or positive reviews for items you buy on Amazon. This helps other people know what to expect if they are looking at the product. 

There are third-party review sites for restaurants, small businesses, hotels, and other services. These review sites include Yelp!, Google Reviews, and TripAdvisor. Some businesses  offer incentives to get your feedback and help their online reputation. These companies may celebrate good reviews but fight any negative ones, even if they are true.

Protections for Customer Reviews Under the Consumer Review Fairness Act

“The Consumer Review Fairness Act (CRFA) is a federal law that protects a reviewer’s ability to share honest opinions about a business’s products or services on online review platforms,” says Terese Arenth, who focuses on law involving media, marketing, and advertising at Moritt Hock & Hamroff in Garden City.

“[The CRFA] was enacted in 2016 in response to reports that businesses were trying to prevent people from giving honest reviews about their products and services. makes it illegal for businesses to have non-disparagement clauses in their contracts that allow them to use the threat of a lawsuit or to otherwise penalize a party to the contract for giving a negative review about the business, its products or services.”

There are some caveats. “Businesses can still prohibit or remove a review that contains confidential information, is unrelated to the company’s products or services, or is clearly false and misleading,” says Arenth. That’s different, she points out, from “just disagreeing with a consumer’s opinion.”
The Federal Trade Commission (FTC) enforces the CRFA. Violating the CRFA could mean financial penalties and court-ordered action against the company. You can report unfair or deceptive business practices and violations of the CRFA to the FTC at ReportFraud.ftc.gov.

Companies May Try to Threaten Your Speech With a SLAPP

A SLAPP (Strategic Lawsuit Against Public Participation) is a lawsuit brought by a company to silence and intimidate people who criticize its actions or policies. Most states have anti-SLAPP statutes. 

“Negative reviews may be protected by anti-SLAPP legislation, particularly if the reviews are deemed a matter of public interest,” says Helen Setton, an attorney at NYC’s Nesenoff & Miltenberg with experience in defamation and civil rights cases. “[However], if a defendant in a SLAPP suit succeeds on their motion to dismiss the case, the plaintiff must pay for the defendant’s attorneys’ fees.” 

Setton recalls a recent case where a local plastic surgeon sued a patient for leaving unfavorable reviews on online forums: “The patient proved that the review qualified as an exercise of her constitutional right to free speech and was a matter of legitimate public concern and interest, so she was entitled to seek damages and attorney fees against the surgeon under the anti-SLAPP law.”

New York expanded its anti-SLAPP statutes in 2020. The updated language protects consumers’ opinions of public interest, says Setton. If a company sues someone for an honest, albeit negative, review, the business may be on the hook for legal expenses.

What Companies Must Prove for Defamation

For a business to prove defamation, it must prove to the court that you made a false statement that caused damage to the business’s reputation. “Since falsity is a necessary element of defamation, only a fact can be proven false; pure opinion isn’t actionable. Also, truth is a complete defense to defamation,” says Arenth.

“The plaintiff must show that the defendant acted with actual malice, [defined as] proof that the publisher knew the statement was false, or probably false, or acted with reckless disregard of the truth or falsity,” notes Setton. “Approaching a review from a place of personal animus — meaning you just don’t like the business owner — can get you into trouble.”

Content Guidelines May Give Companies More Leeway to Remove Content

If they could, most businesses would probably take down all negative reviews. Sometimes they can. Most social media platforms have terms of service and content guidelines that prohibit offensive, harassing, or derogatory comments.

“These guidelines give businesses a little bit of a hook, where they may be able to seek removal or takedown of a review if it’s in breach of the platform’s guidelines,” says Arenth. “Otherwise, to be perfectly frank, getting something taken down can be difficult.”

Seek Experienced Legal Help

If a business is violating your free speech rights by threatening legal action for a review you posted online, reach out to a civil rights attorney.