In today’s digital world, diners have become self-proclaimed food photographers and food critics. Armed with social media accounts and mobile apps, they flock to restaurants and describe their experiences in illustrated detail for the entire world to see. Information flows quickly over the internet, and when the user experience is a positive one, the restaurant reaps the benefits. In fact, a slight improvement with online restaurant ratings can increase a restaurant’s business during peak hours by 19 percent. It’s a no-brainer that a strong online presence is a worthy asset.
But, when the user’s experience is a negative one, the repercussions for any restaurant can be troublesome. And in some cases, restaurants are unable to recover from the online criticism and are forced to shut their doors.
Founded in 2004, Yelp is a (if not the) dominant review platform in the United States. Users can rate restaurants and other businesses on a scale of one to five stars. Along with a rating, users can leave written reviews about their experiences. These crowdsourced reviews are highly regarded by restaurant patrons. In fact, a restaurant’s Yelp rating can have a serious and sometimes fatal impact on an establishment. A Harvard Business School study has revealed that restaurants with lower Yelp ratings have a higher probability of closing.
With stakes this high, restaurants quite literally cannot afford to push online reviews to the back burner. But as the California Supreme Court just ruled in Hassell v. Bird, a review website cannot be forced to remove a review posted online even where that review is defamatory.
Although this case involved a law firm and its former client, the lesson is an important one for the restaurant industry. Here, a lawyer and law firm found themselves in a difficult situation, with a handful of negative (and defamatory) reviews online and publicly available. They filed a lawsuit against the individual who posted these reviews and obtained a court order requiring removal by both the former client andYelp.
Yelp objected and filed a motion to set aside and vacate the judgment. When the court denied Yelp’s request, Yelp appealed that denial first to the Court of Appeal and then to the California Supreme Court. In a long-awaited decision, the California Supreme Court issued a plurality opinion that reversed the Court of Appeal’s affirmance of the superior court order and instead determined that Yelp was protected against this sort of “removal order” by Section 230, a federal law that provides immunity “from ‘any’ claim arising out of content originating from a third party, regardless of the theory underlying the cause of action.”
What does that even mean?
All websites and online platforms (including Yelp and other online review sties) displaying “user-generated content,” including Yelp and other are protected by Section 230 immunity; these review sites cannot be forced to remove reviews, even where those reviews are determined to be false.
So what then?
Because online review sites and internet platforms may still voluntarily comply with takedown requests, this ruling does not mean that the removal of defamatory information from a website is impossible, but it may be challenging. Here are a few good rules to live by:
Take Online Reviews Seriously
Restaurants should treat digital complaints from customers the same way they treat complaining customers who are seated in the dining room. Ignoring a negative online review is hardly ever the smart option. If a customer flagged down a manager and complained about how his/her steak is cooked, he’d get another one, right? Think about an online review in much the same way. Address the complaint by taking it seriously and try to resolve it. Even if the review is not removed, other potential patrons who see the review will see the restaurant’s response and should appreciate the effort.
Distinguish Opinion from Lies
Just because a restaurant considers a review to be “negative” does not mean the review is “false.” Even if a review is scathing, a patron is free to express his/her opinion; that is not something that is actionable. But that situation is much different from the one where a patron posts a false review. Be mindful of the difference between “negative” and “defamatory,” and if you discover defamatory reviews about your restaurant, consult an attorney.
Ask First ... Maybe
As the California Supreme Court recently clarified, even where a review has been determined to be false and defamatory, the business being reviewed cannot force the review site to remove it. But asking sometimes helps. In some cases, asking the reviewer to delete the defamatory content works; in other cases that effort proves futile. And in some cases, asking a reviewer to remove or delete information has the opposite result. This is known as the “Streisand Effect,” where an attempt to censor information has the unintended and opposite effect of causing the information to be disseminated more widely, usually facilitated by the internet.
A restaurant may also succeed by asking the online review site to comply. Although a court order forcing the website to remove defamatory information is not an option, in many cases review sites (or other social media platforms) voluntarily comply. Sometimes the user-generated content posted on a website or platform violates the website or platform’s guidelines or policies. As an example, Yelp’s guidelines state that “Colorful language and imagery is fine, but there's no need for threats, harassment, lewdness, hate speech, and other displays of bigotry.”
The best policy is to have a policy: be proactive, not reactive. Restaurants should be sure to implement policies and procedures aimed at avoiding a digital crisis and prepared to manage a crisis if one does occur. Be certain that your restaurant managers and representatives meet online reviews with the same care and customer service as in-person complaints. Considering how quickly information travels over the internet and via social media, being prepared can be the difference between opening up and closing down.
DISCLAIMER: The information contained in this article does not constitute legal advice. No attorney-client relationship has been or will be formed by reading this article. For legal advice, contact a lawyer at K&L Gates or an attorney actively practicing in your jurisdiction.
Michael Anderson and Jeremy Magruder, Learning from the Crowd: Regression Discontinuity Estimates of the Effects of an Online Review Database, The Economic Journal, Vol. 122, Issue 563 (September 2012), https://onlinelibrary.wiley.com/doi/10.1111/j.1468-0297.2012.02512.x(The study shows a slight half-star improvement in ratings can increase a restaurant's business during peak dining hours by 19 percent.).
Dara Lee Luca and Michael Luca. Survival of the Fittest: The Impact of the Minimum Wage on Firm Exit(pdf) Harvard Business School Working Paper, No. 17-088, April 2017. (Revised March 2018).
2018 WL 3213933 (Cal. Sup. Ct. July 2, 2018), http://www.courts.ca.gov/opinions/documents/S235968.PDF(“Opinion”).
This federal law is known as “Section 230” of Title 47 of the United States Code (47 U.S.C. § 230) and was passed as part of the Communication Decency Act of 1996, which was enacted as Title V of the Telecommunications Act of 1996 (Pub.L. No. 104-104, 110 Stat. 56).
Content and/or information provided by third-party users.
Dawn hassell has filed a lawsuit against me over this review i posted on yelp! she has tried to threaten, bully, intimidate, harras me into removing the review!
Opinion, 7 n. 5 (spacing and typos in original).