Defamation or Something Else? Handling Bad Reviews

Photo by: Jason Rosewell

Here’s the scenario: You execute a gorgeous event for your client. And while no event is perfect, you are pleased with your performance. But a week or so after the wedding, you get an email from the bride stating a list of reasons she is unhappy with your work. She demands a refund, or she “will have no choice but to share her experience with others.”

Hold up—is she threatening to write bad reviews unless you refund her?!

Unfortunately, this isn’t uncommon. In an age when anyone, anywhere can leave their thoughts for all to see, many creative small business owners feel trapped by threats of “bad reviews” if they don’t give a customer exactly what they want—or sometimes more. For a small business, one-star reviews from an angry customer can seem like a nuclear bomb on an otherwise perfect scorecard. So what’s a small business owner to do—and when can the law step in?

First, evaluate: is this defamation?

Clients often come to me ready to file a defamation suit over an online review. But before we even discuss the cost and time-suck of litigation, we have to determine if defamation is even on the table.

Defamation is a fairly difficult case to prove thanks to free speech protections, and not every critical comment will qualify as defamatory. While each state varies, usually a business must show that the statement is patently false, and that the statement isn’t an expression of that customer’s opinion. Reviewers expressing their opinions in a tactless way—including using less-than-tasteful language—tend not to run afoul of defamation law.

But then there’s more to prove. To win money, a business must show that defamatory statement’s effect on their business—usually as lost profits. Another option, getting an injunction (a forced takedown ordered by a court), is difficult as well, because a requirement of an injunction is that there is no other alternative (e.g. money) that would compensate the business.

So what can you do if defamation isn’t an option?

Consider alternatives.

Stock up on good reviewsAsk every client for a review. Getting a bunch of good reviews up front will help ensure that one negative review doesn’t make your average rating plummet. Just don’t ask for fake reviews to “pad” yourself, which is usually in violation of terms of service.

No, you can’t count on “gag clauses.” I’ve seen clients try to avoid the issue altogether by drafting “gag causes”—where a customer or client agrees that they won’t leave a negative review. However, most states won’t enforce this type of gag clause as it violates the principle of free speech.

Apologize, but don’t admit. A heartfelt apology can go a long way. However, don’t necessarily agree that you screwed up, because it could cause issues if a lawyer has to get involved. A good example of an apology statement is something like, “We are so sorry that this was your experience. Our goal is to always exceed expectations and make every client feel like they’re our number one priority.” Answer tactfully, and never write anything you wouldn’t want shown on the evening news.

Work with the platform. Many review platforms have a grievance process for untruthful or overly aggressive reviews. Work with the platform to try and remove the offending posts by offering documentation of the correspondence. (Tip: get it all in writing!)

Negotiate a settlement. I know what you’re thinking. “Why would I refund this person when they are just trying to blackmail me into giving them a refund? My contract says no refunds. That’s unfair!” But stop and think about it for a moment. If you close this chapter, you’ll stop losing sleep over it and never have to worry about this nightmare client again. And while it’s absolutely unfair to refund any of your hard-earned fee, sometimes being a business owner means making tough choices.

If you’re utilizing a settlement, make sure to include confidentiality, nondisclosure, and non-disparagement clauses. Essentially, you’ll say, “we will refund you $X, and you will 1) never tell anyone we refunded you, 2) never tell anyone the terms of this settlement, and 3) not go out and leave bad reviews about us anywhere, nor encourage others to do so.” This will get them to “go away” while obligating them to refrain from leaving a bad review.

If you are working on a settlement, please get an attorney involved. There are many potential loopholes and traps that can bite you if drafted incorrectly!

And remember: this is not the end of the world. If you do good work and serve clients well, one bad review will be a minor bump in the road. Onward and upward!

 

 

 

Caroline Fox

Caroline is a small business and trademark attorney in Virginia. She’s worked with Wedding and Event professionals for 5 years, and has traveled around the world to speak on legal issues in the creative industry. She runs her own law firm and founded the Engaged Legal Collective as a way to provide affordable legal education to the Wedding and Event world.

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