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Can An Online Reviewer Be Sued For Defamation For Posting A Negative Review?

As online review sites such as Yelp continue to grow in popularity, many users may wonder if a negative post can subject the user to a defamation lawsuit. This issue was recently addressed by the United States District Court for the District of Massachusetts in CrossFit v. Mustapha.

In the CrossFit case, the Plaintiff CrossFit, Inc. filed a civil action against the Defendant Donny Mustapha, d/b/a Chelmsford Sports Club for trademark infringement. The Defendant Mustapha, counterclaimed against CrossFit and additional parties alleging defamation among other claims. Mustapha alleged that several employees of CrossFit gave the Chelmsford Sports Club a one-star review without ever using the facilities at the club. It was alleged that one individual posted a comment in which he said, "I left this gym because it was triple charging my members," and "went as far as to forge my name on a lease." CrossFit filed a motion to dismiss Mustapha's claims for failing to state a claim upon which relief could be granted.

In its Motion to Dismiss, CrossFit claimed that these statements by these individuals were all opinions and not factual and therefore, could not be the subject of a defamation action. Mustapha contended that the online reviews and ratings were not merely opinion, but were factual statements because these individuals have never used the club's services.

The Court agreed with CrossFit with regard to the statements of opinion. The Court held that "under the First Amendment, opinions are constitutionally protected and cannot form the basis of a defamation claim." This was still the case even though the Court determined that it was clear from the written content of the allegedly defamatory reviews that the reviewers had not based their reviews on their actual personal experiences at the Chelmsford Sports Club.

However, the Court held differently with respect to the individual who stated, "I left this gym because it was triple charging my members," and "went as far as to forge my name on a lease." The Court held that these statements could form the basis for a defamation case because these statements could be proven true or false, and therefore were not a statement of opinion. The Court then permitted Mustpha's claim for defamation against the individual to proceed with respect to these statements.

The CrossFit case is a good lesson for online reviewers of when reviews can be the subject of a lawsuit for defamation. The First Amendment of the Constitution protects any statement of opinion, and therefore, a reviewer cannot be sued for defamation for posting a review based on opinion. The exception to this rule is if the review implies the allegation of defamatory facts as the basis for the opinion. Notably, in cases where a party can prove an orchestrated campaign of online reviews including negative reviews, courts have held that the particular statements at issue that are not opinion or hyperbole can form the basis for a defamation action.

It is always best practices for any online reviewer, in order to avoid an action for defamation, to evaluate whether a statement qualifies as opinion or hyperbole, consider all the words used, give weight to cautionary terms used and consider all the circumstances surrounding the statement prior to publishing.

Contact Attorney Mucci, an experienced litigator, if you or your business have been the victims of defamatory reviews or if you are sued for defamation.

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