Are online reviews leaving you open to a lawsuit?

Reviews are a great way of adding user-generated content to any website, but what happens when your reviewers turn nasty and leave very critical comments? Not only does it reflect negatively on your own site, but here in Australia there can be legal ramifications.

The laws I am talking about are regarding libel, the written form of slander. It prohibits a writer from damaging the reputation of someone else, known as 'defamation', and the laws are designed to temper the power to falsely sway public opinion that an unscrupulous member of the press or other influential writer might have.

Neither freedom of speech nor freedom of the press are constitutionally guaranteed in Australia in the way they are in US. Instead, there are several acts under which civil or even criminal action action may be brought, with statutes in some jurisdictions providing for fines and even imprisonment for serious offences.

Most defamation cases are civil proceedings, often brought by politicians and corporations who consider someone in the media to have defamed them by publishing information critical of their activities.

Fair Comment

For defendants, there are several legal defences available but the most common for reviewers is that of 'fair comment' or honest opinion. The defence of fair comment is available if the comment or opinion is based on statements of fact which are true or commonly known and if it relates to a matter of public interest.

This protects most reviewers, even those that write negatively, if they express their opinion carefully and lay down a bed of facts before presenting their opinions.

However, there have been two landmark cases in Australia that deal with restaurant reviewers and their publishers being successfully sued for large sums after writing negative reviews. In 1984 Leo Schofield was ordered to pay $100,000 of damages to a restaurant he reviewed, then only last year Sydney Morning Herald restaurant critic Matthew Evans was found guilty on appeal for defaming Sydney restaurant Coco Roco. In these cases juries or judges decided that the opinions being expressed went well beyond true facts or are not opinions but statements of fact which the writer can't prove to be true.

Website owners can be held liable (in theory)

The disturbing thing for website owners to note is that the publisher is held equally liable for defamation. In theory this means any review on your website that is defamatory could lead to you being sued as well as the writer, and if the writer is anonymous then you'll be the only defendant. While this is yet to be tested fully for internet publishing in Australia I will assume that any small to medium business running a standard review website would not want to take on the challenge of testing the law. It's much easier to simply avoid publishing anything defamatory.

Edit mercilessly

You are responsible as the publisher so you need to read and carefully edit the content of your site, including reviews or comments. The people who write these reviews are usually members of the general public who have not had the training of professional journalists nor access to the editors and legal department present in most print media, and so they cannot be trusted to have any knowledge of the laws to which they are bound.

Also, the anonymity of the internet means that some people write 'revenge reviews' in which they use excessive language and make wild claims that quite clearly aim to damage the reputation of the business in question, in an angry attempt to seek retribution for a bad experience that the reviewer has had, or some other personal reason. These revenge reviews should almost always be deleted or at least heavily edited as they are the most likely to lead to legal action. Besides, they provide very little real value to readers and their presence tends to attract others of the same ilk.

Have a publishing policy in place

You should have terms and conditions that outline your publishing policy so that readers, reviewers and the reviewed are all aware of their expectations and rights. If a review or comment on your site doesn't fit your guidelines, edit or remove it.

On our restaurant review website Meet Me There, we read every review and edit or delete those that we think may be considered defamatory. These are the things we watch out for:

• Personal attacks on staff, especially if they are mentioned by name
• Strong opinions being expressed without a basis of fact
• Swearing and other signs of anger in the reviewer
• Lack of balance in the review

While these criteria may draw a review to our attention, even a very negative review can stay if it seems like opinion that is balanced and factual.

Let people know when they're edited

Let a reviewer know when their addition has been edited or deleted and include a link to your publishing policy. You'll find most people are fine when they understand that it's not you who makes the rules, it's the law. Also, they'll often leave another review that might express a similar sentiment in a safer way.

Deal with complaints

We have a policy on Meet Me There that if a restaurant complains we re-read the review in question and see if the complaint is valid. If the review could be construed as defamatory, we will remove it. Otherwise it stays, and we offer the complainants the following solutions:

1. They can get their regular customers (or friends, family etc) to log on and write positive reviews. Readers respect the weight of numbers.
2. They can even write a reply 'review' themselves in response to the offending review, stating their case as owners of the business.
3. We can remove all reviews and make their business listing unable to receive any more, good or bad. We usually use this if a restaurant has a problem with a disgruntled customer as it is a solution that allows restaurants to remove any reviews they are worried about but it leaves our site with the integrity of being impartial.

Remain independant to keep your reputation

Ultimately, how much risk you are willing to take with your reviews is up to you. Some publishers are very careful to avoid lawsuits and so remove anything negative. However, this path can leave your readership questioning your independence, and could ultimately lead to your site losing reputation and readership.

Be aware, and beware

Hopefully, if you do your research, edit carefully and listen to complaints when valid, you won't have any problems.

Here's some other resources you might want to look into:

• ABC defamation guide - http://www.abc.net.au/corp/pubs/legal/lawbook/ch01.htm
• Defamation Laws and the Internet - http://www.efa.org.au/Issues/Censor/defamation.html#abclr0201
• Press Law in Australia by Australia Press Council - http://www.presscouncil.org.au/pcsite/fop/auspres.html
• Meet Me There, Australia Restaurant Review site - http://www.meetmethere.com.au

Publishing has become incredibly easy on the internet with people able to express their opinions to a world-wide audience using personal blogs or any number of review sites. While the laws in Australia are yet to be tested in regards to publisher liability online, if you are running a review site in this country it is best to be aware of the relevant laws and follow them where possible. Besides, no-one wants to be in a position of actually harming the reputation of another business, especially if its one with which you have had no personal dealings.