Recently the world learned about the case of, Liu, a Taiwanese blogger who was arrested and given a 30-day suspended sentence for giving a restaurant a bad review.
Liu’s case has drawn so much attention because of how outrageous it seems. To be arrested and convicted criminally for giving a restaurant a bad review seems insane, especially in the U.S. and other nations that put a high value on free speech.
But while Liu’s case may be an extreme one, bad reviews are actually fraught with legal peril. To be clear, many of the legal problems that are associated with negative reviews also hold true for positive ones but companies and individuals tend to be far more angry and far more litigious about people saying bad things rather than good ones.
So, if you’re looking to write a negative review, here are a few things to watch out for as they could be levers that your target might use against you and your site in an attempt to silence you, justly or unjustly.
Looking at Defamation
As Mr. Liu found out, defamation is a common angle of attack used by those unhappy with a negative review and a routine way to shut down sites that criticize.
We’ve talked a great deal about defamation over the course of this column including how legal trolls like to shop for friendly jurisdictions and how you are protected from defamation taking place in your comments.
Defamation is a common false legal threat that bloggers face and much of that threatening comes from negative reviews. As such, when writing a review that bashes a company, service or product you need to make sure that you are comfortably within the boundaries of defamation law.
On that front, the advice is surprisingly simple. Limit your criticisms of the subject of your review to one of two things:
- Facts: Facts are protected speech and can never be defamatory. Tell the details of your experience and focus on the things that are provably true. This includes both the facts about your your experience with the subject and the subject itself. However, this means also being fair and presenting all of the relevant facts, including those that might work against your opinion.
- Opinion: Stick to your opinion on the subject. Your personal feelings and opinions are protected as well, so long as they aren’t presented as being factual.
Under no circumstances should you make guesses about the subject that you can’t prove, especially if those guesses put it in a negative light. Even jokes or satire can go awry if your subject feels that others might take it seriously.
In short, focus your review on facts that you can prove and feelings you have. Don’t let your imagination run wild and, perhaps accidentally, start inserting opinion as fact or making claims that are untrue or could be misconstrued.
The Copyright Problem
If you’re reviewing a copyrighted work such as a book, movie, album, game, application, etc. you will probably want to use at least as small portion of that work as part of your review. Whether it’s a quote to make a point, a screen grab or a short clip.
Likewise, if you’re reviewing a service or a product, you’ll likely have other copyrighted material you may want to integrate in such as shots of the product, marketing copy and other material that the creator of the subject has provided.
The problem is that some copyright holders, though not many, can be very selective with their enforcement and a use of their work that was not considered an infringement in a positive review or even a neutral one might suddenly incur their wrath when it’s used as part of a negative one.
Generally, reviews have a high level of protection when it comes to fair use as commentary and criticism are two of the most protected uses of copyrighted material. One usually has to use an outlandish amount of a copyrighted work in a genuine review for it to be considered an unfair use.
That being said, it’s worth taking a few minutes to familiarize yourself with fair use and then understand how it works.
In particular, pay attention to the fact it is a defense against a claim of copyright infringement and not a right. It can’t and won’t shield you from a malicious lawsuit though it may protect you from being liable.
Once you understand that, in your review, your best bet is to use only the amount of copyrighted material that you need to make your point. Generally, the less material you use and the more original thought you add, the better off you are.
A Few Words on Disclosure
Finally, in addition to the above problems, it’s also worth noting that, in 2009, the FTC published guidelines that govern how blogs and other celebrity endorsements should disclose any financial or other relationship they have with the companies and products they are promoting.
While it’s unlikely you would find trouble giving a bad review to a company that you have a business relationship with, but you need to think about all of your potential conflicts of interest including any competitors you have a relationship with.
For example, if you did a paid review for a competitor or consulted with them in the past, not only might your readers consider that a conflict you should disclose, but legally it could be an issue as well.
Admittedly, this is a gray area at this time, the FTC guidelines don’t cover this behavior explicitly, only paid endorsements, but it is easy to see how the law could apply, especially if your negative review of one product/company/etc. can be seen as an endorsement for its competitor that you have a relationship with.
All in all, this is just another legal area to watch and be careful with moving forward.
All in all, a negative review doesn’t drastically increase your risk of doing something that is legally or ethically unsound, however, it doesn’t mean that others might be more motivated to take action against you, legitimately or otherwise.
That’s why, when you’re writing a negative review, it’s worth taking your time to make sure you’re within the bounds of the law before hitting publish.
The good news is that most companies don’t get overly litigious against negative reviews as it tends to actually make things worse for them. While some, such as the PR people behind Duke Nukem Forever, might take other action, at least it doesn’t involve legal trouble.
Still, you should always make sure your legal house is in order
Have a question about the law and freelance writing? Either leave a comment below or contact me directly if you wish to keep the information private (However, please mention that it is a suggestion for The Blog Herald. This column will be determined largely by your suggestions and questions so let me know what you want to know about.
I am not an attorney and nothing in this article should be taken as legal advice.