CBA Record October 2018

Y O U N G L A W Y E R S J O U R N A L

submitting its complaint to the platform, waiting for a response and repeating the process. Such an endless fight could take the business owner away from building goodwill with prospective and existing customers. (b) Positive Response. This strategy may sound foolish but a business’ proactive engagement over a review can diffuse the situation. Businesses are often recom- mended by these online review platforms to reach out to the individual and to dis- cuss the dissatisfaction with the goods and services offered. According to Yelp’s Data Science team, “Yelp users are 33% more likely to upgrade their review if [a business] respond[s] with a personalized message within 24 hours.” Airbnb is resistant to the removal of reviews and, instead, gives each party the opportunity to respond to a negative review. When the reaction has spread beyond a simple response by the business owner, a defamed party should consider retaining a public relations firm. Internet communities are prepared to publicly shame businesses in the name of social justice so prevention of this rising tide may require an immedi- ate, professional reaction. In certain circumstances, a positive response can lead to the continued busi- ness of the reviewer because the reviewer simply wished to be heard. The reviewer could even revise its original review to dem- onstrate his or her appreciation from the business owner’s proactive and thoughtful reaction to the review. The nagging concern held by business owners with reaching out is the continued existence of a false review. Even if the owner adequately addressed and resolved the reviewer’s dissatisfaction, the review could still remain on the business’ profile. Prospective customers can still see the false review and can decide to not purchase the business owner’s goods and services based on this false review. Sometimes, despite positive responses and efforts to build goodwill, a defamatory review can act as an

regardless of the frequency of inquiry into its company’s social media.

about an employee by his coworkers and management within a legitimate business context or to a prospective employer. Larson v. Decatur Memorial Hosp., 236 Ill. App. 3d 796, 799 (4th Dist. 1992); see also 745 ILCS 46/10. In our example, it is dif- ficult to imagine how an employee of Fake Corp. would receive a qualified privilege for its published Yelp review. (c) Anti-SLAPP. Illinois’ Citizen Participa- tion Act, 735 ILCS 110/1, protects online reviewers from retaliatory lawsuits brought without merit, known as “SLAPPS.” SLAPPS are seen as curbing an individual’s attempt to participate in government through exercise of his or her First Amend- ment rights. Online reviewers can cloud their defamatory statements with a call for government regulations or interven- tion, which may receive protection under Illinois’ Anti-SLAPP laws. The reviewer of Fake Corp. may call for government regulation of FlimsyWood and any lawsuit by Fake Corp. against reviewer could be prohibited under Illinois law. (d) Statute of Limitations. Defamatory statements are only actionable for one year after the date of publication. 735 ILCS 5/13-201. Illinois courts dispute whether the discovery rule generally applies for a claim for defamation, meaning the time to bring such a claim does not begin until the defamed party discovers or should have discovered the defamation. But the courts found the rule only applicable where “the publication is hidden or inherently undiscoverable, or inherently unknow- able.” Peal v. Lee, 403 Ill. App. 3d 197, 206 (1st Dist. 2010). In our fictional situation, the time for Fake Corp. to file suit will likely start on the posting of the defamatory statement on its Yelp page, RESOURCES FOR NEW LAWYERS The CBA offers many resources and programs to help new lawyers. Go to www.chicagobar.org to learn more.

Question 3: How should the business address the defamatory review?

(a) Removal of Review. For each online review website, the platform’s terms and conditions should outline a policy govern- ing impermissible content and the process by which a business can seek its removal. Often, these terms and conditions will not expressly prohibit “defamatory” reviews but will call the removal of “illegal” con- tent. Under Yelp’s “Review Guidelines”, Yelp expects a review of a business to be “factually correct” and to not “exaggerate or misrepresent” the reviewer’s experience. These websites will provide contact information to report a violation of the terms and conditions. After reporting this violation, the business is beholden to the online review platform to determine whether and when to remove an online review. The platform could reach out to the reviewer for its position on the review or simply remove the post. The disadvantage of removing the review is the occurrence of the so-called “Streisand Effect,” a phenomenon where an individual’s attempt to remove con- tent from public view in effect causes the information to become more widely spread across the Internet. The reviewer could be offended by the removal of its review which shines more of a light on the situation. Other reviewers and exist- ing consumers may add credence to the recently removed defamatory statement. The business could now have to deal with one hundred negative reviews, as opposed to the one defamatory review. Also, by removing an online review, the reviewer could begin a game of “whack a mole.” The reviewer, who now received attention from the business owner, could create a new user account and repeat the same defamatory review on the same plat- form or on another one. Then, the busi- ness could be stuck in an endless cycle of

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