Earlier this year someone posted a false review of my law practice on both Yelp and Google+. The exact text was posted on both sites. Sometime later a client of mine informed me there was a fake review of me online (I appreciate that she knew it was fake). Since then I have been researching the issue of online reviews and sites posting them.
I support the 1st amendment and understand the value of anonymity in certain cases. However, when an anonymous reviewer writes something that is easily proven false, Google and Yelp shouldn’t stand on the 1st amendment and refuse to delete the review. Meanwhile, anonymous trouble-makers know most folks don’t have the time, money or expertise to pursue a defamation lawsuit against. In fact, a recent study found 16% of Yelp restaurant reviews are fake.
Perhaps you’re thinking “Hey you’re a lawyer, the review’s probably correct.” It is not. I can address legitimate concerns of an unhappy client, but not an imaginary one. The name they used is not a former client. The photo is from an old National Geographic article. The things they state about me are categorically false. The most likely culprit is a drug-abusing former neighbor of mine, who I once helped. As they say: no good deed goes unpunished.
Here is the Yelp fake review:
Here is the Google+ fake review, using a different name and photo:
In order to prove a claim for defamation in California, person must prove the following elements by a preponderance of the evidence. The statement must be:
2) A Statement of Fact;
4) Of and Concerning me;
6) Causing harm to my reputation, and;
7) Damages – Damages are presumed and therefore do not need to be proved if the statement is slanderous on its face or if it is libelous.
The Problem With Yelp
In the course of my research I have discovered a whole world of anonymous and hit-piece reviewing on the internet. There have been class action suits filed against publishers as well as defamation suits. Businesses have fought back against fake, and in some cases real, reviews. Competitors attack each other. Clients with legitimate gripes write reviews that get deleted or “filtered.” It’s a mess out there and the value of legitimate reviews is severely diluted by the fake ones. One study found up to 5% of reviews online are “fake.” I suspect it is higher. Yelp in particular is a frequent target for criticism: this is because Yelp is far more concerned about Yelp’s bottom line ($$) than publishing honest reviews by real people. Yelp has put many honest small businesses out of business. Here’s a link to an article discussing Yelp’s “extortion” (their word) of advertising dollars from small business owners in exchange for hiding or removing negative reviews. See also Yelp and the Business Of Extortion.
A problem is the existence of anti-SLAPP legislation, making it nearly impossible to sue the publisher (such as Yelp or Google+) for the defamation. Both companies will remove the reviews if provided with a court order stating that they are libelous. However, there are several, sometimes difficult steps that must happen first. A lawsuit must be filed. Then subpoenas must issue for information, first from the publisher, and secondly from the internet service provider identified in the first subpoena. Both of those steps can involve additional litigation. If successful, the information obtained will lead to the person who wrote the review, in most cases. Once that information is received the case proceeds as a typical civil matter, with the plaintiff usually seeking special and punitive damages.
What a hassle.
Is There A Solution?
I propose a system where reviewer accounts on Yelp and similar sites are more voluntarily carefully vetted to ensure that a real person, with a real email address (and who can be sued for defamation) are the only ones writing reviews. Sadly, perhaps the only way to achieve this in Yelp’s case would be for them to suffer devastating penalties and fees after successful lawsuits against them.
Over-the-top reviews by new accounts, either pro or con, could get filtered and listed separately. Under this system, all 1 and 5 star reviews would be separated from the rest. They should be unavailable for search engines and not appear in results. Persons interested in viewing them can click on a link to see them. And when a business or person contacts a posting site with verifiable facts proving any part of a review to be false, the review will be immediately removed.
Also, businesses should be able to “opt out” of a listing on review sites. Yes they won’t benefit from the good reviews… or be damaged by the bad or fake reviews.
This would solve much of the problem. The rest will have to be handled in the courts.
JUNE 4, 2014 UPDATE: Today I noticed both the fake Yelp account and the fake Google accounts had been deleted. I have no idea why although I have sent letters and emails and published this article. Or perhaps the person who created the false persona decided “enough was enough.” Nevertheless, this is still a hot topic and will continue to vex business owners and professionals as long as ratings sites exist.
UPDATED: June 4, 2014