Everyone is a potential restaurant critic thanks to the rise of smartphones. Consequential opinions that were once reserved for the “professionals” at the Atlanta Journal-Constitution are now possible for any person with a grudge and cellphone. The conveniences of modern smartphones permit us to send out pictures of the food we eat, the waiter service we encounter and, often times, how disappointed we are with our overall dining experience via online consumer review websites like Kudzu and Yelp.
Undeniably, 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 and/or deter such online reviews from increasing in size and scope.
Before engaging in an expensive and time-consuming legal process, here are some factors to consider:
Is the online review factual?
As defined in Georgia, “libel is a 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.” Under Georgia law, the truth will always 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). That is because a statement that reflects an opinion, as to which reasonable minds could differ, cannot be proved false.
As a result, a restaurant owner who claims that a published opinion defamed his/her business will generally be unable to carry the applicable burden of proving the essential element of falsity. Still, an opinion can constitute actionable defamation if it can reasonably be interpreted, according to the context of the entire writing in which the opinion appears, to state or imply defamatory facts about a restaurant that are capable of being proved false.
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/hostess to determine if he/she was possibly rude to any patrons upon check-in. Speak with your wait staff to clarify if they may have inadvertently forgotten a table of guests. Confer with your employees 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 criticisms 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 Georgia 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 consists of an untrue statement of fact, but also that the person publishing the review acted with negligence or even malice (i.e., reckless disregard for the truth) in publishing the review, it is very important to consider whether the offending statement(s) can in any way be deemed an opinion as opposed to a statement of fact.
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 and/or to seek damages in connection with that 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 authoring 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 (and, usually, it is the security of an anonymous review that permits the publisher to be so brazen in their comments), 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 the author’s 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 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 restaurant savvy consumers appreciate that online reviews are not always accurate and can result from the sheer resentment a consumer experiences when simply not getting his or her (possibly unreasonable) way.
A simple apology (or even acknowledgement) of the publisher’s concerns, and an explanation of any changes and/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.
Joseph C. Sullivan is a partner at Taylor English Duma LLP (Atlanta), who counsels restaurants and other hospitality businesses in litigation matters. He may be reached at (678) 336-7284 or by email at firstname.lastname@example.org.