Corporate Law Article

Defamation by Blog & the First Amendment

By: Clark, Campbell, Lancaster & Munson, P.A.

Q: As a business owner, what recourse do I have against negative online reviews and scathing blog posts?

A: It has long been the case that business owners could seek and obtain monetary judgments against those whose lies about the business caused damage to the company. But the popularity of online business review sites as a guide for selecting restaurants and other services has opened the door for very public, published defamation that requires, for a remedy, something more than monetary relief. Specifically, if a dishonest, damaging review remains published or the author can continue to publish even after the money judgment is obtained, the reviews are likely to cause more damage in the future.

Earlier this year, a Florida appeals court dealt with online defamation in the context of a commercial landlord-tenant relationship. A former retail store tenant blogged about the landlord being “the most immoral human-being in the world” and “tak[ing] bread from [a] little Jewish special needs child to support their luxury lifestyle.” The blogger further warned that doing business with the landlord would jeopardize “your business, your investment, [and] your ideas.” The landlord sued for defamation, interference with business relationships, and even stalking. When considering whether the landlord could obtain a preliminary court order to stop further defamatory blogging, the court gave heavy deference to First Amendment rights and declined to prohibit further blog entries even if clearly defamatory.

This result does not mean that takedowns of blogs and dishonest reviews are impossible. The court indicated that, if the business can show that the reviews “are having a deleterious effect” on current business, court orders to take down and prevent further publication could be appropriate. A landlord or other businessperson looking to go beyond a money judgment and, in fact, stifle a blogger’s posts must carefully navigate the First Amendment and make the appropriate showings that he is suffering actual, ongoing, but difficult to calculate losses. A customer simply indicating some concern about the review, but not specifically indicating that he is walking away from the business because of the review, is not enough.

The July 17 edition of “The Law” will address potential pitfalls in mergers and acquisitions.

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