Defamation is the legal term for an untruthful statement for which someone can sue. Within Defamation are the subcategories of “Slander,” spoken untruthful statements, and “Libel,” written untruthful statements.
In America, leaving a positive or negative review of a business is fundamental to our economy. Good reviews help good businesses grow and bad reviews warn customers away from bad businesses who provide poor services or mistreat their customers.
However, in recent years, bad businesses have attempted to suppress the public’s reviews and criticisms by suing negative reviewers for libel. So how can you safely leave a negative review?
WHAT IS DEFAMATION, LIBEL, & SLANDER?
Legally, libel is the “false and malicious defamation of another, expressed in print, writing, pictures, or signs, tending to injure the reputation of the person and exposing him to public hatred, contempt, or ridicule.” O.C.G.A. § 51-5-1.
To make a valid claim for libel, an individual normally has to prove that they have been injured economically. Critically, however, the law carves out several types of statements for which injury is presumed, and it is not necessary for the person or business suing you to prove damages with regards to those types of statements. These “per se” defamatory statements include, “[m]aking charges against another in reference to his trade, office, or profession, calculated to injure him therein.” O.C.G.A. § 51-5-4 (a) (1), (3). As a result, making a complaint about a business is a particularly risky act as damages may be presumed.
The Supreme Court of Georgia has found that accusing a business of a mistake or failure on a single occasion is not per se defamation and that the statement has to accuse the business of generally being unprofessional and unfit to do business to be per se defamation. Cottrell v. Smith, 299 Ga. 517, 523 (2016). However, this can be a risky line to walk.
DEFENSES
There are several defenses to defamation. We will not list all the possible defenses, but two of the best defenses to defamation are truth and opinion.
Truth:
Truth is a complete defense to alleged libel or slander. O.C.GA. § 51–5–6. However, proving the truth can be legally expensive and sometimes practically difficult if the complained of conduct was not well documented.
Opinion:
A defamation action will lie only for a false statement of fact. This is because a statement that reflects an opinion or subjective assessment, as to which reasonable minds could differ, cannot be proved false. As a result, a plaintiff who claims that a published opinion defamed him will generally be unable to carry his burden of proving the essential element of falsity. Cottrell, 299 Ga. at 523.
Still, opinion is not a perfect defense as an opinion can constitute actionable defamation if the opinion can reasonably be interpreted, according to the context of the entire writing in which the opinion appears, to state or imply defamatory facts. Id. Thus, if an opinion suggests a fact that might be false, then that opinion could be actionable.
WHAT TO DO?
Truth is a complete defense, but the debate as to what the truth is can be a long and expensive battle. As a result, it is preferable to express opinions that are short and do not reference facts. For example, it would generally be safe to state: “I was dissatisfied with my experience.” Alternatively, it would likely also be safe to just leave a one-star review without a comment. However, defamation is fact specific; so even these could be actionable in the right circumstances.
Ultimately, the purpose of leaving a bad review is to warn future customers of your bad experience so that they do not also suffer. Leaving a one-star review will have the exact same impact as leaving a long-detailed review as most customers will simply look at the one-star rating without ever reading a specific review. It might not be as satisfying to leave a short opinion review, but it is safer and will have the same impact.
CAN I GET SUED FOR TELLING THE TRUTH?
As stated above, the truth is a complete defense. However, telling the truth or only telling your opinion are defenses at law, but they might not stop the business from still suing you. There is an unfortunate pattern where some businesses will sue customers for defamation even when the businesses know the customer is telling the truth. Businesses know that the cost of defending a lawsuit will be more expensive than the customer is willing to pay to keep the truth out there. As a result, no matter how truthful you are, there is always a risk that you may be sued.
If you are sued for defamation, then it is important to seek professional legal advice as this is a fact sensitive part of the law and your case will be different from anyone else’s.
Because defamation is fact specific, nothing in this article is intended as, nor should it be construed as, legal advice for your situation. Nor does this article create a potential or actual attorney-client relationship.