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Negative Online Reviews and the Chilling Effect--is Anti-SLAPP Legislation Protecting Consumers?

negative reviews libellous

Consumers are in an interesting position in today's market: they have so much influence, and yet, when they voice their feedback they are repressed.

There are countless consumer awareness forums, groups, tools, and platforms that help consumers make wise buying decisions based on honest consumer feedback. However, honesty is only appreciated by a fraction of the population—especially when it crosses corporate or business interests.

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Consumer connection in the marketplace

There have been serious issues between citizens, consumers, and corporate entities. Individuals who share unsavoury information about large companies have been penalized with tremendous “defamation” law suits.

Unfortunately, little is done in Canada to protect civilians from these harsh corporate power-plays. Even less legislation is in place to protect consumers who share small business service feedback online

Why isn't more being done to protect consumers on a corporate and a local level?

Free speech is thwarted when individuals are afraid of what large and small business can do to them. The lacking Canadian legislation makes the marketplace less free for consumers—and that is a bad thing.

The best that homeowners can do in the meantime is learn how to publicly participate in the marketplace in a mindful and conservative manner.

SLAPP Lawsuits

A Strategic Litigation Against Public Participation (SLAPP) lawsuit is an attempt to eliminate free speech. Companies will leverage legal threats and costly litigation to scare off, stifle, or silence consumers, individuals, and activists from speaking up or speaking against a corporation or business.

accusation

SLAPP lawsuits operate on a corporate level. Corporations can sue individual consumers/citizens for millions of dollars, which is why these law suits are large a threat to public participation.

These are smoke and mirror lawsuits that claim unjustified damages or harm. Large damage claims are used to scare the public out of standing up against the company. The company will maintain their claims without backing down in hopes that the individual removes or redacts their statements.

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SLAPP law suits are not made in good will. They are filed with the intention to punish or intimidate the public; although, this isn't stated in the claim.

Are SLAPPs the Same a Libel Lawsuits?

SLAPP lawsuits may claim defamation, slander, or libel, but not all defamation law suits are SLAPP law suits.

A true libel or defamation law suit is based on intentionally false communication about another individual or business. Sometimes these suits are legitimate and this defamation could wrongfully damage one's reputation.

slander

The difference between defamation and SLAPPs is that SLAPPs don't have legitimate damages that can be proven in a court of law. A true defamation suit can be proven in most cases.

Defamation cases can be legitimate. They can also be illegitimate. For example, a business owner may believe that they have a defamation case when they are just upset about a factually justified negative review.

Bringing this case to a court of law may not go very far.

However, a legitimate defamation case may go far in a court of law and award damages to the plaintiff. For example, a contractor’s client may have written a review that included statements that accuse the contractor of being a thief, fraud, extortionist and/or criminal. However, the client has no valid proof to show that these damaging statements are true. If the contractor cannot get their client to remove these false claims and prove that these claims damaged their reputation, then they are entitled to file a law suit as a last resort.

Unfortunately, the fact that SLAPP suits do not pertain to smaller defamation cases doesn't mean that defamation law suits aren't used to chill' public participation. Nevertheless, this doesn't mean that defamation law suits aren't used to ‘chill' public participation. Individuals can still sue for defamation as a way to silence the public and protect their own reputation.

Anti-SLAPP Legislation vs. Defamation Legislation

Canada lacks sufficient anti-SLAPP legislation across the provinces and territories. Quebec and Ontario residents are the only people who are currently protected by anti-SLAPP legislation.

Anti-SLAPP legislation will review corporate defamation cases within 60 days of them being filed. A panel can classify the case as a SLAPP and dismiss it, or allow it the case to go through to a civil court of law or discovery if it appears to be legitimate.

These efforts help protect the public from the crippling legal fees and stress that come alongside SLAPP cases.

justice

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Unfortunately, there is no anti-defamation legislation in Canada. This is partially fair because there are legitimate defamation cases that ought to be heard.

When it comes to libel law suits in Canada, the claimant needs to prove that:

  1. a false statement was made about them to a third party
  2. there is a permanent record of this
  3. the material is defamatory
  4. the material refers to the claimant
  5. the material is published on a third party directed towards others

If the claimant can prove the points above, then their action will succeed—unless there is a defense.

But, if the defendant can prove that their communication was true and in the public interest, then the defendant could win the case.

The issue at stake is that SLAPP suits can be halted in their tracks but regular defamation cases cannot.

This means that the defendant must go through the motions of a defamation suit—even if it's unjust.

negative review

Thus, a phony defamation suit can cost the defendant in legal fees, time, energy, and stress even if it's a front to chill the defendant. Unless the defendant stands down, they will be in for a legal ride, which isn't fair.

There is some anti-SLAPP legislation in place to protect consumers from getting involved in SLAPP (false defamation) cases. However, there is no anti-defamation legislation in place to protect consumers from the same thing that happens on a smaller scale, like a negative online review for a local business, for example.

Unfortunately, consumers can still be silenced by companies and individuals who don't like hearing their feedback on public platforms.

Defamation and 'Chilling' in the Home Renovation Industry

Defamation cases can happen as a result from reviews posted on any online review platform. Consumers are not protected from getting served and dealing with law suits. And at the end of the day, some contractors do not appreciate constructive or negative feedback on public forums.

One reason may be that contractors feel especially threatened by negative reviews. Another may be that some people simply don't like negative feedback. Another reason may be because they strongly believe that they have a sound defamation case (which could very well be true!).

Search for contractors based on TrustScore and client reviews. TrustedPros is the only review platform that works hard to authenticate the reviews posted online!

argument

Whatever their reason, some contractors may threaten to sue a client and may actually follow through with it.

Homeowners who write contractor performance reviews on sites like TrustedPros.ca do so to help others from making costly mistakes. A homeowner may write an emotionally charged negative review; however, they do this to share their experiences for the benefit of public interest even if it comes off the wrong way to a business owner.

The troubling news is that this lack of consumer protection does not incentivize public participation in Canada. This could be one reason why some homeowners are unwilling to provide valuable feedback on online forums. We polled We polled a small sample of our users and found that:

  • 12 homeowners have been asked by their contractors to remove their negative reviews.
  • 8 homeowners report that they have been harassed by a contractor after writing a negative review.
  • 30 homeowners have reported that they do not wish to write a negative review in fear of being harassed by a contractor who has performed poor quality work for them.
  • Some homeowners report that they are not willing to write a negative review online because of a security or safety threat.

how to write good feedback

At the end of the day, it's always the consumer's choice to write about their business experiences online. However, the marketplace is not a fair one until consumers feel safe enough to share their experiences about it.

The Canadian Defamation law is not a consumer-positive one until consumers feel safe enough to write honest reviews about their transactions and experiences online.

Consumers who wish to write performance reviews online should always be mindful of what they write. Homeowners should learn more about how to avoid getting into a libel law suit for starters. They should always keep records of the incidents, and they should stick to reporting on facts rather than a person's character. This evidence will go very far in a court of law. There are 10 golden rules for writing negative online reviews that will help consumers avoid getting tangled in a libel law suit.

how to write a negative review and avoid libel

  1. Keep your review true. Always be honest. Do not sensationalize or lie about your experience. This could end up harming you in the long run.
  2. Leave character comments out. Avoid speaking about an employee or business owner's personality. This can be difficult to prove and doesn't necessarily represent their product or service.
  3. Don't critique them as a person. Speaking badly about a employee's or business owner's appearance or image will reflect badly on you. It can put you at risk for a libel law suit. This information is irrelevant when considering the company's service. It is based on personal preference.
  4. Use real examples. Always back up your review with hard examples that demonstrate a company's performance. This will help potential clients understand if the company's services will suitable for their needs.
  5. Lose your emotion. Writing an emotionally-charged review will make you vulnerable to saying the wrong thing, which could lead to a libel lawsuit.
  6. Keep all evidence. Always hold on to important renovation documents for five to ten years after the renovation has been completed. They will back up any claims that you make about a contractor's services—even years down the line.
  7. Don't be vindictive. Write your review in good faith. Your feedback can help a company improve. Vindictive comments can be taken with a vengeance!
  8. Be helpful. Always write with the intention to help rather than harm. This will help you avoid being accused on libel if you never intended to say something harmful to begin with.
  9. Avoid humor. Although funny, written sarcasm or humor can be easily misunderstood. A business owner may take a sarcastic comment as a one made in malice.
  10. Be mindful. Your feedback can leave lasting results. Be sure that you can stand behind your comments. They can improve or damage a person's business and livelihood.

How to move forward with libel lawsuits in the home renovation industry

Contractors who feel like they have a legitimate and evidenced-based libel case should surely take their case to court if they have no other option.

However, contractors who think that they can use a law suit as a sure-fire way to get out of a legitimate negative review are mistaken.

stop posting bad reviews

There is no certainty that the law suit will turn out in a contractor's favour. This is especially true if the contractor claims that the review is libellous without any supporting evidence. In addition to that, a small claims case could go on for months with multiple sessions. This could cost hundreds or thousands of dollars. So, if a contractor thinks that a law suit is an easy way to silence their unhappy client then they should think again.

TrustedPros does not recommend silencing clientele because:

  1. This may not end in a review removal
  2. This does not help manage one's reputation
  3. This does not mend client relationships
  4. This could negatively affect one's TrustScore

The best way to manage a true, negative review is to contact the author and ask them to keep the review factual or write a rebuttal. One study shows that 95% of customers will return to a business if unhappy reviews are resolved quickly.

Summary

There will be consistent issues with SLAPP law suits and unjust defamation claims across the country until Canadian law makers look at defamation law more holistically.

Although it is difficult to juggle protecting reputations and freedom of speech, much is lost when consumers cannot speak up about their experiences in the marketplace.

Some key measures that could help improve the consumer marketplace environment may include disallowing companies to write non-disparagement clauses into contracts and extending non-SLAPP legislation to more groups (outside of corporate scale) and provinces.

Of course, consumers should always be sure that their public criticisms are fair and mindful of others. A company review could affect a business owners' livelihood well into the future.

Posted by: Nicole Silver
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