As the old saying goes, “There is no such thing as bad publicity.” But in the internet era, bad online reviews can spell doom for restaurant owners.
Getting defensive about bad and/or poorly reasoned feedback can be a bad idea. Amy’s Baking Company, for example, became widely known for their epic Facebook meltdown, fighting back against customers’ negative feedback with profanity-laced retorts. So it’s easy to make a bad situation worse.
But on the other hand, if a restaurant hasn’t done anything wrong and there are negative tweets or posts out there does internet law offer any legal recourse?
Respect free speech
Before a restaurant takes any legal steps to eliminate bad online reviews, they have to understand that libel and slander are lumped together under the term “defamation.” “A person is liable to another for telling lies that injure others,” says Michael Kozlowski, attorney with Wentzel Law in Chicago.
Defamation cases are difficult for business owners to bring, especially in the online review context where patrons have every right to share with a community what they perceive as a bad experience.
“The entire online review space is designed to allow consumers to express their opinion. They will almost never form the basis of a valid defamation action,” says Kozlowski. “The courts do try to objectively differentiate between opinion and fact. So, if you’re starting a factual review with the phrase, ‘It is my opinion…,’ this effort won’t necessarily insulate you from defamation liability.”
“Statements that most people would think are libelous such as, ‘Mr. Smith is a lying crook!’ are typically considered ‘opinion,’ not fact, and won’t support a claim for libel,” explains Mark Chatow, attorney with Chatow Law in Newport Beach, California. “First Amendment rights strongly protect our rights to state our opinions publically, regardless of whether stating that opinion may harm someone.”
Find the good in the bad
Instead of taking the feedback personally, perhaps restaurant owners should objectively consider what’s being said. Research shows that in most cases the bad rating is accurate.
“It should prompt the restaurant owner to engage the patron by respecting their insights to start looking at ways to avoid the problem from happening again,” says Nicholas Webb, customer experience expert and author of What Customers Crave. “This sounds painfully simple, but most bad reviews are precipitous of bad experiences, and unless the information that a patron is posting is inaccurate, they have every right to share their bad experience with the community of patrons.”
Reverse the review
One of the best measures of recourse against bad reviews is to respond quickly and kindly, without getting heated or insulting the person who posted the review (no matter how out of line they might be). “We are so sorry you weren’t happy with your dining experience. We are going to do XYZ to make it right.”
Chatow suggests that the best remedy is often to reach out and attempt to resolve the situation amicably. “If someone had a bad meal or experience, an offer to come back at no charge can often turn a bad review into a positive one,” he notes.
If being nice doesn’t get you anywhere, try to win the support of the website hosting the bad review. “A little-known secret to getting negative reviews and comments removed from social media is to see if the offending remarks violate that platform’s terms of service (TOS),” says Chatow. “On Yelp, for example, it’s against the TOS for an employee to post about a business, or for someone to post a secondhand review about someone else’s experience.”
Keep in mind that a potentially defamatory web post does not automatically make the hosting site liable. If the posting complies with the site’s TOS, you can’t successfully sue the site. “If you know who made the post, you can sue them for libel directly,” explains Chatow. “If you don’t know who made the post, you’d have to name the platform in a suit and attempt to get the name of the poster through a court order.”
The urge to fight
For some restaurant owners, the idea of allowing a potentially explosive review to sit online and gain eyeballs is unthinkable. For those who can’t—or won’t—let bygones be bygones, there are certainly legal options to entertain.
“When you see a bad review—one that is truly defamatory—proceed to immediately (within 24 hours) have your attorney send the commentator a cease-and-desist letter. By scaring them—alleging only valid claims, of course—the hope is to get the review down ASAP,” advises Andrew R. Shedlock, associate attorney with Kutak Rock LLP in Minneapolis, Minnesota.
If the reviewer calls the restaurant owner’s bluff and this move backfires, the next option is to have an attorney file for a temporary restraining order (TRO). “The TRO is a formal legal suit, to which the commentator has to respond, that would, after the legal process is over, make the person remove the offensive comment,” says Shedlock.
In the end, according to Chatow, there’s a pretty established course of action for a restaurant—or any other—business owner who has been (or at least feels like they’ve been) wronged on Yelp: 1) Identify the specific portion of the TOS the negative review violates; 2) Explain clearly why the language in the review violates one or more TOS provisions; and 3) Be polite and respectful.
Basically, as Chatow puts it, “While it’s extremely frustrating to find a negative review on your Yelp page, taking that frustration out on Yelp won’t help get the review removed.”
