Anne-Marie Mizzy
In today’s world, people have become increasingly reliant on online reviews to determine if a company is worth their business or not. With the click of a button, people can help determine the success of your business by posting positive or negative reviews.
However, there can be a point at which negative online reviews can go too far, causing severe harm to you or your company’s reputation. This point may be known as defamation.
Defamation occurs when something is said or written about a company or individual that is false and causes harm to their reputation. An example of defamation could be someone calling your company corrupt. It is further broken into two categories: libel and slander. Slander refers to oral communication whereas libel refers to non-transitionary forms such as online reviews, broadcasts, and Facebook posts.
If there is an online review or string of online reviews where someone is making false accusations about your company or an individual, there is the possibility of taking it to court. In Grant v Torstar Corp, 2009 SCC 61, the Supreme Court stated that for a plaintiff to establish that defamation has occurred the plaintiff must show that the statement made:
- a) was defamatory in the sense that it lowers the plaintiff's reputation in the eyes of the reasonable person;
- b) was in fact referring to the plaintiff; and
- c) was published by communication to at least one person other than the plaintiff.
If a plaintiff can prove that the statement made meets these criteria on a balance of probabilities, then defamation will be established. However, there are several defenses available to the respondent such as:
- a) the defence of truth or justification which is where the defendant tries to prove that the defamatory statement made was true in substance;
- b) the defence of fair comment where a defendant tries to prove that the defamatory statement made was an expression of opinion on a matter of public interest; and
- c) the defence of qualified privilege which is when a person is acting under some legal, moral, or social duty in stating what he or she believes to be true about another person to a listener who has a corresponding duty or interest in receiving the communication, such as a complaint to a regulatory body.
Going to court, though, can be expensive and time consuming. As well, it may not be easy to track down who made the statement, as online reviews can be posted anonymously. Additionally, going to court may not repair the harm to your reputation.
There are several things one can do before pursuing a defamation case, such as having the defamatory statement removed as quickly as possible. Depending on where the statement is posted there may be options available to you to have it removed or modified. With Google business reviews one can flag a review as inappropriate and Google can remove it if it violates their policies. Facebook may remove any statements that are hateful, threatening, unlawful, misleading or malicious.
Another option is to disprove the defamatory statement with a well thought out response. Providing your side of the story allows other online users to see the company responds to its reviews and acknowledges concerns raised by customers.
Responding to a defamatory statement, however, may fuel the dispute further, so think about if it is worth your time or if responding would bring more attention to a statement that would otherwise be forgotten about.
One of the quickest ways to have a defamatory statement dealt with is to have a cease-and-desist letter sent to all relevant parties by a lawyer. Most websites do not want to get into a lengthy battle in court, so those involved will usually remove the content. A well written cease-and-desist letter can put the issue to a quick and inexpensive end if the parties abide by it.
In the online world it is common for an individual or company to be exposed to negative reviews and comments, which can cause serious harm to an individual’s or company’s reputation. If you or your company are faced with harmful comments or reviews, document the evidence and reach out to legal counsel to decide your best course of action.
Denese Espeut-Post is an Okanagan-based lawyer and owns Avery Law Office. Her primary areas of practice include wine and business law. This article was written by Anne-Marie Mizzi. www.averylawoffice.ca
