In today’s Internet age, online reviews can have a significant influence on a business’ reputation. Many businesses highlight and build their reputations on their positive reviews and ratings. But, have you considered how you will deal with negative reviews – particularly reviews that are false and may be defamatory?
Many websites have policies for removing reviews that are inappropriate. For example, reviews that are off-topic, fake or were written by someone with a conflict of interest are often removed. However, if the business owner at issue and the reviewer disagree about the facts, many websites will not remove the review.
What are your options as a business owner if you are faced with a negative review that is defamatory?
Online reviewers are increasingly the target of defamation lawsuits brought by businesses in Canada. To successfully sue someone for defaming your business, you have to meet each component of a three-part test: 1) the review referred to your business; 2) it was published to a third party; and 3) it was defamatory, i.e. it would tend to lower your business’ reputation in the community, in the eyes of reasonable people. Even if you meet the requirements of this test, there are several defences available to a defendant. For example, if the defendant can show that the review was true, or was a fair comment on the services she received, this may provide a complete defence.
Some websites recommend that you, as the business owner, publicly respond to each review. Also, reaching out to the reviewer directly to see if there is a way to resolve the issue is a good start. If these approaches do not resolve the issue and you believe the review is defamatory, you must act quickly, as Ontario’s Libel and Slander Act has specific provisions and timelines. For instance, a notice of action is required to pursue a defamation action, and that notice must be sent to the reviewer within six weeks following the date that you learned of the alleged defamatory review. If you subsequently decide to bring an action for defamation, it must be commenced within three months from the date you learned of the alleged defamatory review.
Potential defamation litigants should also be aware of another tool available to defendants: Ontario’s anti-SLAPP (Strategic Lawsuits Against Public Participation) legislation. Effective as of the fall of 2015, this legislation allows the defendant in a lawsuit (including defamation suits) to bring a motion at any time after the lawsuit has been commenced to have the action dismissed for, essentially, having no merit.
Ontario’s anti-SLAPP legislation states that its purpose is, among other things, to encourage people to express themselves on matters of public interest. If a defendant brings such a motion, he must show that his statement – in this case, his online review – relates to a matter of public interest. Public interest has been defined broadly by the Supreme Court of Canada, and can “rang[e] from politics to restaurant and book reviews” (Grant v Torstar, 2009 SCC 61 at para 105).
If the defendant establishes that the review relates to a matter of public interest, then the plaintiff must show that there are grounds to believe, first, that the proceeding has substantial merit, and, second, that the defendant has no valid defence. Third, the plaintiff must show that the harm it has suffered (or will likely suffer) as a result of the online reviewer’s expression is sufficiently serious that the public interest in permitting the lawsuit to continue outweighs the public interest in protecting the review. This last element involves a balancing test. Overall, this three-part test has a high threshold, especially given that the plaintiff has to demonstrate that the defendant has no valid defences. Nevertheless, there are cases of plaintiffs successfully resisting anti-SLAPP motions, allowing them to continue with their defamation claims.
Damages for defamation vary based on the circumstances, but general damages are often presumed and do not need to be proved. Online reviews – the good, the bad and the ugly – are here to stay, and it is important to consider your approach when a negative review of your business is posted for the world to see. Consulting an experienced litigator can help you understand your rights and your options for taking legal action, as well as the risks involved.
By Julie Mouris
Julie Mouris is an associate with Conway Baxter Wilson LLP, a law firm practising exclusively civil litigation and advocacy. Conway Baxter Wilson LLP also provides its clients with advice on litigation avoidance strategies. Julie is developing a bilingual civil litigation practice with an emphasis on commercial law, defamation law and public lawyer.
This article originally appeared in Ottawa Business Journal on April 2, 2018.