Friday, May 30, 2014

Defamation and Internet Reviews

The balance between free speech and defamation has frequently been a tricky one with free speech understandably given significant lenience. However, as times have changed and the power of the Internet as a commercial tool continues to grow the emergence of social critiquing websites have become important enough that a positive majority opinion can result in millions in additional revenue and a negative majority opinion can result in millions of lost dollars for authors as well as consumer and service businesses.

Unfortunately the anonymity provided by these websites and the general simplistic nature of their review system has created an environment where the “public” evaluation of services and products can be easily manipulated by political and/or competitive elements. Sadly still there are frequent instances when these websites do not behave as reasonable and rational stewards when issues of defamation arise continuously differing to 1st Amendment protection for their users failing to even ask the question of whether or not an act of defamation has even taken place, an obvious abdication of their responsibility.

Defamation occurs when an individual(s) make false statements about another individual or group that harms its reputation. There are typically three elements to supporting a defamation charge: the statement must be false, cause harm psychologically, socially or financially and be made negligently and/or deliberately (i.e. the individual did not take time to determine the truthfulness of the statement or flat out lied). Also defamation is commonly divided between written statements (libel) and spoken statements (slander). With respect to the Internet almost all defamation cases are libel due to written statements on message boards or review websites and because almost all products reviewed cannot be viewed as “public entities or officials” proving malice is not necessary to prove defamation. Finally with the commercial nature of these types of product review statements neither type of privilege, absolute or qualified, can be applied to avoid defamation charges.

The most common defense against defamation charges, and only real defense with regards to reviewing a product, is that the statement rendered is simply an opinion rather than a statement of fact. Frequently opinions, due to their personal and somewhat subjective nature, are not viewed as falsifiable. However, the Supreme Court has ruled that the “opinion defense” has certain conditions and cannot be treated as a third universal privilege. Other common defenses for defamation where individuals believed in statement accuracy due to a secondary source provider (i.e. newspaper or television report) or emotional/satiric utterance are not applicable to reviews because there is no secondary source provider and the review is considered a statement that is supposed to be believed.

Beyond opinion the only other reasonable defense for libel in a product review environment is if the reviewed product is not reasonably capable of further damage to its reputation. Obviously if the reputation of an entity has “bottomed out” in the eyes of the public then no further negative statements regarding that entity, true or not, can damage the reputation of that entity. However, for this defense to work the accused individual must demonstrate that the review did not create a “chain-reaction” that caused the reputation to bottom out due to the “pile-on” nature of the Internet.

So if there is no opinion privilege what defines a review that is negative and legal versus one that is negative and libel? Largely the deciding factor is whether or not the review contained information that a reasonable analysis could disprove. Basically the more detailed an opinion the less likely an individual is able to make a successful “opinion” defense against a libel charge. Of course this characterization is an interesting element because the most valuable reviews are those that are thoroughly detailed.

Reviewing in general, but especially online reviews, typically creates a reverse bell curve in the respondent spread that then creates an intermediate based mean. This characteristic occurs because most people do not take the time to review products they view as average (i.e. 2 – 3.5 stars). Instead most non-paid reviewers have to feel strongly about what they are reviewing, which commonly will result in 1, 4 or 5 star reviews. Therefore, for a number of products these reviewers tend to somewhat neutralize each other resulting in a large number of products receiving an average 2.5-3.5 star ranking (out of 5). With this typical result it is important that reviewers be expected to provide sufficient reasoning for why their experience with the reviewed product/service was positive or negative for the general extreme nature of these reviews can produce significant movement for products that lack a large number of reviews.

Unfortunately a number of reviewers do not provide sufficient depth, reasoning and logic to their reviews instead substituting emotion and personal political/philosophical beliefs, which are subjective and uncharacteristic to all potential future users. In addition this reasoning is marred by a lack of consistency in the rationalization. The lack of a consistent format in the review process can also lead to confusion and inaccuracy when determining why an individual enjoyed or did not enjoy a particular experience. This confusion and inaccuracy can then result in libel suits. Realistically this problem should be solved by all websites that conduct structured product reviews having a universal format. The following format is an example of what could be used in the future:

User Name:


Ranking the Experience (out of 5 stars in half star increments):

Reason 1 for the Above Ranking

Reason 2 for the Above Ranking

Additional Comments:

While it would be preferable for individuals to use their real names when reviewing items/services, it is not required because the important element is the content of the review not the simple star measure. If the generally used star system is retained then it should include the ability to evaluate with half star increments because there are a number of times when an experience is not bad enough to warrant 2-stars, but not quality enough to earn 3-stars. Without the ability to award a 2.5-star ranking the review is inherently inaccurate.

In all types of reviews the rationality for why an experience produces a certain ranking is paramount. There should be at least two major rationalizations to why an individual evaluated the experience his/her particular way. These reasons need to be clearly identified and transparent instead of potentially hiding in a large wall of text. Initially some may argue that contemplating at least two significant reasons why the product/experience was good or bad is too much work. This reasoning is foolish because if one cannot met this requirement then why is that individual taking the time to write a review in the first place because clearly the product/experience was not memorable or did not have a significant impact.

Also these reasons need to be included for the review to be accepted by the particular website. Basically these reviews would be encoded as required fields. If additional commentary is desired a non-required space would be available after the two principle rationality sections. This additional commentary section is largely reserved for individuals that had a significantly positive or negative experience.

This new review format would create significant transparency and clarity behind the rationality leading to the ranking produced by the reviewer. In addition this new format actually demands the reviewer apply some effort to the review of the product eliminating the “drive by” review of a single sentence stating that the product is “awesome” or “sucks” thereby eliminating poor quality reviews, either positive or negative, from consideration for the average ranking. This elimination is important because not all reviews provide equal value, yet in the simplistic “average score” system used by review websites they are treated equally. Changing the format of the review process should not be difficult for these review websites. Reviews using the old method could remain in the database, but would need to be isolated into a separate category where a viewer could select to view either reviews with the old system or reviews with the new system.

It is also important to note that defamation is a legitimate challenge to the 1st Amendment. There are some individuals who seem to believe that attacking any negative comment on a review website is a violation of the 1st Amendment and is somehow inherently bad business. The common statement by these individuals to that effect is something along the lines of:

“How does company A expect to get more customers when they are suing review website A over some bad reviews. Clearly company A cannot take criticism, so they lack flexibility and cannot cater to their potential customer base. Instead of adapting their only response is to sue. I would never do business with company A.”

Of course this statement is inherently flawed because it assumes all negative comments as valid, truthful and constructive criticism. Clearly any rational person who has ever viewed the comments that certain products receive on these review websites understands that this assumption is frequently not valid. Basically these individuals need to understand that there is a difference between a justified negative review that uses facts and evidence to support its stance and an unjustified negative review that embellishes and lies to “support” its stance. All parties should herald the above changes to the review process because it makes defining and supporting a defamation charge easier by eliminating the ambiguity that sometimes leads to fair negative reviews drawing legal attacks from individuals/groups.

Overall one of the biggest problems in the relationship between professional review websites and the businesses/products that are reviewed on them is that the review websites largely view themselves as only a platform to host the reviews with no responsibility for the content of those reviews. It is this attitude that leads to the “surprise” when they receive numerous complaints from individuals and companies for libel reviews. Changing the review system to demand more clear and transparent rationality from reviewers would be a significant step in better controlling the content of a review while no stripping the ability of reviewers to make a positive or negative review on a whole. This change should also limit the tension between these review websites and product developers/companies changing the certainty and validity among the number of complaints and potential libel inquiries and lawsuits. In the end something needs to change in the way these review websites handle their roles in modern business otherwise the merry-go-round of complaint/lawsuit – denial – complaint/lawsuit will continue, simply with continuously increasing stakes.

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