As businesses struggle to stay afloat amid the COVID-19 pandemic, online reviews shared on websites and social media have become increasingly important. Unfortunately, online public discourse is often dominated by trolls, harassers, and other bad actors. In some cases, businesses can be unfairly targeted with abusive, fake, and inaccurate online reviews.  It is vital for businesses to differentiate between a negative customer review and one generated by a troll or other bad actor.  A business’s response to negative online reviews is tantamount to its survival.

So what can businesses do if they are the subject of negative online reviews?

Focus on the Positive

Overwhelmingly positive reviews will generally drown out a few bad ones. But, it’s important to understand your legal obligations. Businesses should avoid review “astroturfing,” which involves preparing or disseminating a fake positive review that a reasonable consumer would believe to be a neutral, third-party testimonial. Instead, businesses should offer numerous ways for their customers to quickly and easily provide feedback, i.e. a comment card, online form, or website link on a receipt.

Ultimately, providing a quality product or service along with excellent customer service is the most effective way to generate positive reviews. Similarly, providing customers with an effective means to resolve disputes can often help turn an unhappy customer into a satisfied one.

Do not Engage a Troll

Remember to “never feed a troll.” In many cases, trolls are seeking attention; by engaging with them, you will often make the situation worse. If the troll is posting on social media, it is often possible to block them from posting on your account. If the conduct violates the platform’s terms of service, you can also report them. The same applies to fake online reviews. Sites like Amazon, Facebook, and Yelp have procedures in place to report reviews.

Understand Your Legal Obligations

Make sure that your response does not result in unintended liability. The Consumer Review Fairness Act makes it illegal for businesses to include standardized contract provisions, including in their online terms and conditions, that threaten or penalize people for posting honest reviews. The statute was enacted in response to concerns that some businesses were trying to prevent consumers from giving honest reviews about products or services they received.

That means you can’t seek to prevent all negative reviews by including non-disparagement provisions in your consumer form contracts. The Consumer Review Fairness Act expressly prohibits a contract provision that:

• Bars or restricts the ability of a person who is a party to that contract to review a company’s products, services, or conduct;
• Imposes a penalty or fee against someone who gives a review; or
• Requires people to give up their intellectual property rights in the content of their reviews.

The Federal Trade Commission (FTC) is empowered to penalize violators under its authority to prevent deceptive trade practices and unfair competition. On the state level, attorneys general are also authorized to bring actions under the law.

It is important to note that the Consumer Fairness Review Act contains exceptions that allow businesses to protect themselves from certain types of negative reviews. Under the statute, it is permissible to prohibit or remove a review that:

• Contains confidential or private information – for example, a person’s financial, medical, or personnel file information or a company’s trade secrets;
• Is libelous, harassing, abusive, obscene, vulgar, sexually explicit, or is inappropriate with respect to race, gender, sexuality, ethnicity, or other intrinsic characteristic;
• Is unrelated to the company’s products or services; or
• Is clearly false or misleading.

Because many of the items above require a judgement call, it is advisable to consult an attorney to determine whether the statute applies. As highlighted by the FTC, it is unlikely that a consumer’s assessment or opinion with which you disagree meets the “clearly false or misleading” standard.

Key Takeaway

With the growing popularity of social media and websites like Yelp!, customers have numerous public platforms to provide feedback about your business. When the opinions are not so positive, it can be tempting to try to squelch them. However, companies must be careful when managing negative online criticism.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Maryam Meseha, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.