The employment attorneys at Nardone Limited regularly assist our clients with labor and employment issues, such as Department of Labor (“DOL”) compliance, as well as guidance on preventing and responding to discrimination and harassment charges filed with the Equal Employment Opportunity Commission (“EEOC”) and the Ohio Civil Rights Commission (“OCRC”). Further, Nardone Limited frequently advises businesses about their options to address various controversies and disputes, which has included advice on options for businesses to address false online customer or patient reviews. Our employment attorneys also regularly update clients on relevant issues, news, and changes in the law as it relates to labor and employment issues that may impact our clients. One area of concern that is increasingly affecting businesses is the question of how to address negative third-party social media posts, content, or reviews, which can sometimes contain false and misleading statements.
Indeed, with the ever-growing presence of websites and social media applications for customer reviews, the information age has provided consumers with many options to widely broadcast their views on all types of businesses. And unfortunately, some bad actors have, and will continue to, use online review platforms to post false and malicious reviews of businesses and their staff members. But, to be clear, businesses are not required to sit by idly and allow false reviews to remain posted and wrongly taint the public’s view of your business. In that vein, this blog post serves to provide businesses with an overview of when negative reviews cross over the line into being legally actionable and to provide an overview of businesses’ options to address those reviews.
Legal Standard Governing Whether Businesses Can Force Removal of Negative Online Reviews
In considering available options to address and potentially force removal of an online review, the issue is whether the reviews are sufficiently improper to grant legal grounds to force the customer to remove the reviews. Generally, there will be grounds to remove a review if the review amounts to defamation under the law. Thus, the first key consideration on whether a negative review could be a candidate for a court-imposed take-down order is whether the review contains a demonstrably false statement of fact. If the review in question contains a provably false statement, the business should consider whether the review would meet the remaining elements of defamation, which are as follows under Ohio law:
- a false and defamatory statement of fact;
- about the plaintiff;
- published without privilege to third parties;
- with fault of at least negligence on the part of the defendant; and
- which was either defamatory per se or caused special harm to the plaintiff.
See Davis v. Johnson, 5th Dist.App. Richland No. 07 CA 40, 2007-Ohio-6567. Based on the elements above, the major remaining question after establishing a false statement is whether the statement is sufficiently damaging to be considered defamatory. But notably, Ohio law relieves claimants of the requirement to prove that certain statements are damaging, when those statements are per se defamatory.
Specifically, a statement is defamatory per se if it reflects upon one’s character in a manner that would cause him or her to be ridiculed, hated, or if the statements injure one in their trade or profession. See Swoope v. Osagie, 2016-Ohio-8046, 76 N.E.3d 686 (8th Dist.) (statements that home health nurse neglected patient and engaged in unprofessional behavior constituted defamation per se, because false statements were aimed at fitness of the subject to perform their profession). Thus, based on the doctrine of defamation per se, many false statements in reviews would be legally presumed to be damaging under Ohio law. As a result, many service-based businesses would face a lessened burden in seeking to force a court-ordered removal of false reviews regarding their services.
Takeaways for Businesses on Addressing Negative Reviews
We have encountered many businesses who have been victimized by blatantly false online reviews. Fortunately, as detailed in the example above, the law does provide mechanisms to address and remove false and malicious reviews. If your business has faced false and malicious online statements about your services, you should consider your options to force removal of the reviews—rather than simply allowing the reviews to permanently stain your company’s good name.
Contact Nardone Limited
If you need advice or representation regarding a false review, like those referenced above, contact one of our attorneys. The employment attorneys at Nardone Limited in Columbus, Ohio, counsel closely-held businesses on the full-spectrum of employment law issues, including internal employment law matters, like enforcement of employment agreements and employee restrictive covenants, and external business disputes with vendors, competitors, or other third-parties. Please feel free to contact Nardone Limited if you would like more information or consultation regarding any type of employment law issue or any dispute that is affecting your business.