Lawsuits filed by businesses against those who post negative online reviews are increasingly gaining attention and heightening the concern of customers who may have legitimate gripes about the services or products that were purchased.

A contractor sued a client for $750,000.00 in defamation charges after she posted negative reviews on Yelp and Angie’s List. A plastic surgeon sued three former patients after the women posted negative reviews about the results of their breast surgeries. A wedding services vendor threatened to sue a bride for $350,000.00 after the bride posted negative reviews about the vendor’s services. An Oregon hotel filed a lawsuit requesting the identity of an anonymous poster who submitted a negative review about the hotel on TripAdvisor.com. The lawsuit also indicates that the poster was never a guest at the hotel.

Rather than split hairs over the nuances of defamation law, when posting an online review that may be less than favorable, consider the following:

Is the statement harmful to the business that made the product or provided the service? If so, can you provide proof that the statements you are making are truthful and/or that the statements are pure opinion? You should be able to prove that the statements you are making are true and/or that the statements you are making are your opinion (an opinion cannot be proven true or false). However, not all statements of opinion are protected. Opinions that are based on false, underlying facts that are directly stated or implied are not protected. For example, “In my opinion, this [name brand] cell phone is a fake” may not be protected as opinion because a reader of the review may read into the statement that you are relying on facts to make the statement, and if the implied facts turn out to be false, the statement is defamatory. Also, making statements based on information from a third-party and not from your first-hand experience is risky. Any statement that involves accusing someone of a crime, such as stealing an item from your home while performing a home repair, should be reported to the police as opposed to posting it online. Be careful with statements implicating contractual breaches because these are generally arguable and subject to varying interpretations. Some states include allegations of racism or sexual orientation as a crime, and thus, comments that implicate these matters may subject the poster to more serious charges. Note that the site itself, such as Amazon, TripAdvisor, etc., is almost always protected from liability by federal law (the Communications Decency Act).

Before posting a negative online review, consider contacting the vendor directly in an attempt to resolve the problem amicably. Business owners usually appreciate knowing when there is a problem and being provided the opportunity to fix it. Posting a review about a shortcoming you encountered and how the business addressed the issue to bring the problem to resolution is a win-win for everyone. If the business refuses to correct the problem and you want to warn others, keep the review factual. Or, if you provide an opinion, base it on facts that are true and refrain from name-calling.