Nowadays, everyone is a food critic. Consequential opinions that were once reserved for the "professionals" from the Food Section at The New York Times are now possible for any person with a cellphone and a grudge. The conveniences of modern smartphones permit us to not only instantaneously inform everyone how exceptional our mundane day-to-day activities are via Twitter and Facebook, but also to send out pictures of the food we eat, the service we encounter and, often times, how disappointed we are with our overall dining experience via online consumer review websites like Trip Advisor and Yelp.
Not surprisingly, one of the most popular targets for these consumer-based online reviews is the restaurant industry. While positive online reviews can many times increase business and revenue for restaurants, negative online reviews can have the very opposite effect. Consequently, a restaurant may face a scenario where its bottom line is being adversely affected by online reviews that may or may not be factual. Many times, a restaurant, like any other business, must decide whether it should pursue formal legal avenues to delete or deter such online reviews from increasing in size and scope.
Before engaging in that expensive and time-consuming legal process, here are some factors to consider:
Is the Online Review Factual?
The truth will serve as a legal defense to a claim for defamation and most other legal claims capable of being asserted in response to an online review. Before contacting an attorney and paying a considerable retainer to initiate a lawsuit, you should first perform the necessary due diligence to ascertain whether the online review has any legitimacy.
Talk to your host or hostess to determine if he or she was possibly rude to any patrons upon their arrival. Speak with your waiters to clarify if they may have inadvertently forgotten a table of guests. Confer with your staff to establish if anyone was denied a table for no justifiable reason.
While it can be easy to discount negative reviews as "sour grapes," sometimes such reviews actually expose the ugly truth and may actually serve to address a lingering problem in the way your restaurant operates.
Is the Online Review an Opinion?
There are significant protections in this country to protect the freedom of speech. Generally, a claim for defamation will require that the individual publishing the online review state, as a “fact,” something that is indisputably untrue as opposed to a mere opinion that could differ based on the viewpoint of the individual guest.
For instance, an online review stating your restaurant's food quality is not commiserate with the prices being charged will likely be held to constitute an opinion not subject to a lawsuit. However, if the review instead falsely declares that your restaurant misrepresents certain food products or frequently makes fraudulent charges on consumers' credits cards, it likely constitutes a statement of fact that would subject the publisher to a lawsuit.
Since a claim for defamation will require not only that the online review consist of an untrue statement of fact, but that the person publishing the review acted with negligence or even malice, such as reckless disregard for the truth, in publishing the review, it is very important to consider whether the offending statement can in any way be deemed to be an opinion as opposed to a statement of fact.
Can the Person Publishing the Online Review be Identified?
If the person publishing the online review can be identified, a possible remedy is to have legal counsel send him or her a "cease and desist" letter explaining that the review is fraudulent, actively causing your restaurant damages, and provide a date certain on which the offending review should be removed. Many times, it is also beneficial to reply to the online review with this same information so the publisher can receive notice of your intentions and, thus, has the opportunity to remove or retract the review before legal proceedings are commenced.
However, most often, the anonymity that provides an individual comfort in publishing an online review is the same anonymity that will protect him or her from being identified.
If you believe that the online review published is not an opinion, but can be proven to be false and has affirmatively caused your restaurant damages in some way— for instance, you obtain information indicating that “but for” the offending online review, consumers would have patronized your restaurant—it may be worthwhile to consider hiring the services of an attorney to pursue a legal claim.
Engage in a Cost/Benefit Analysis
Hiring an attorney to pursue damages in connection with a negative online review can be expensive. You must determine if the benefits in seeking to remove the offending review or to seek damages about the offending review are outweighed by the potential costs.
It is important to note that, more likely than not, your claim will be against the individual actually publishing the online review, as opposed to the website on which that review appears. If the identity of the publisher cannot be ascertained from the face of the review, it will be necessary to file a "John Doe" lawsuit and serve subpoenas on the website that hosted the review in an effort to track down his or her identity.
Many times, and after significant time and expense have already been incurred, the individual identified either cannot be affirmatively located or simply does not have the financial wherewithal to satisfy a meaningful judgment. You are then left in the unenviable position of incurring significant time and expense only to be left in virtually the same position you were at from the start.
While not a formal legal option, you can also simply track your restaurant's online reviews and respond to them in a meaningful yet non-argumentative way. While many consumers rely on such reviews to decide where to spend their money, most consumers appreciate that online reviews are not always accurate and can result from the sheer resentment a consumer experiences when simply not getting their (possibly unreasonable) way.
A simple apology or even acknowledgement of the publisher’s concerns and an explanation of any changes or means you have or will implement to address those concerns can many times be more effective procedurally and financially then seeking formal legal redress.