Litigation Law Newsletter, Volume 2, Number 5: Bad Reviews - Defamation or Not?

With social media, the number of defamation cases has increased. What is defamation? In a nutshell, it means that someone has written something about you that jeopardizes your reputation. Take the following example: “The restaurant at “X” is terrible, and I encountered food poisoning last time I was there”.

Suppose the owner of the restaurant sees that comment posted online and wants to remove it immediately. Is that legally possible?

The starting point is to break that sentence down. There are two allegations in that statement. One is that the “restaurant is terrible”. The other is that the individual “suffered food poisoning while eating at the restaurant”.

The Food Poisoning Allegation

From the restaurant’s perspective, it first needs to determine whether or not the individual who posted the statement did, in fact, suffer food poisoning. At law, there is a defence called “justification”. Effectively, this means if the individual did, in fact, suffer food poisoning while eating at the restaurant, the statement is “true” and does not need to be removed. Put another way, although the statement is defamatory, the statement is legally justifiable because the individual is stating the truth. In contrast, if the individual did not suffer food poisoning while eating at the restaurant, the statement is false, and since the statement injures the restaurant’s reputation, the restaurant has legal grounds to force the statement to be removed.

Moreover, in defamation cases, the restaurant does not need to prove that it suffered damages as a result of the statement (i.e., fewer people have attended the restaurant because of the posted statement). Damages in defamation only requires the restaurant to prove that the statement lowers its reputation in the eyes of an objective person.

The Allegation that the Restaurant is Terrible

This allegation is subject to a different legal test than the justification test above. Why? The answer is because the allegation that the restaurant is ‘terrible’ is not capable of truth or falsehood. The statement is an opinion about the individual’s experience while eating at the restaurant. Therefore, while still a statement, statements incapable of truth or falsehood and merely opinions fall into another category and are frequently permissible. Using the example above, as long as the individual critiquing the restaurant did so without any malice (an ulterior motive designed to injure the restaurant because, for example, the individual who posted the statement doesn’t like the owner), the opinion should remain. Why? Courts go to great lengths to protect ‘freedom of expression’. While there is a delicate balancing act between enforcing defamation claims and the right to express oneself freely, the example of the restaurant being terrible is an expression worthy of protection. On balance, the right to express this opinion is more important than protecting the restaurant’s reputation.

Conclusion

Proving/defending defamation is complicated and fact-specific. It is best to consult a lawyer if you are considering initiating a claim, or defending a claim, involving defamation.