Social Media: Online Business Reviews and Free Speech Law

Whether or not you've taken the plunge into social media, your business is likely being mentioned online. One source of customer comments are review sites, but those evaluations are just the tip of the iceberg (as they saw on the Titanic).

Millions of blogs, helps desks, user groups, and retail sites have comment areas. Wherever your customers go, they may mention your business in a positive or negative vein. Nothing disappears from the Internet, so it certainly behooves you to know when and where you and your business are mentioned.

You might think that negative comments can be erased. Alas, not in the world of new media. Everyone has an opinion, and the law says they have a right to voice their thoughts. You might think that sites that host comments would have some accountability, but they cannot be held responsible for comments posted by users.

Section 230 of the 1996 Communication Decency Act protects providers of "interactive computer services" (who publish information provided by others) from suits seeking to make them responsible for the speech of their users.

Groups such as the Electronic Frontier Foundation actively support litigation to preserve First Amendment rights in computing and telecommunications technology.

As far as people posting comments, they are covered too. SLAPP (short for Strategic Lawsuit Against Public Participation) lawsuits can be filed as retaliation for criticizing a person or business in a public forum. Rarely do SLAPP lawsuits end up in court or win if prosecuted.

The purpose of this legal action is to intimidate the critic with the fear of litigation and the cost of defending such an action. However, if you lose a SLAPP lawsuit, it may cost you a bundle and you may be responsible for the opposition’s legal costs as well as your own.

To defend First Amendment rights, 28 states have enacted anti-SLAPP legislation. For example, in California, you have the right to file a motion to strike a complaint filed against you based on an "act in furtherance of [your] right of petition or free speech under the United States or California Constitution in connection with a public issue."

If you win your motion against a SLAPP and believe that you can show that the plaintiff filed the lawsuit to harass or silence you, rather than to resolve a legitimate legal claim, you might consider filing an anti-SLAPP suit against your opponent. Keep in mind that anti-SLAPP laws do not cover harassing, defamation, or threatening statements.

The best defense against damage to your business reputation is to find online comments as soon as they are posted. A negative comment can’t be erased, but you do have the opportunity to reach out to the customer and make things right before the comments spiral out of control.

A negative comment will not disappear from the web, but it can be outweighed by many more positive comments. Here’s where the value of a social media community comes in. After you have a relationship with your online community, happy customers and those who believe in you and your business can be encouraged to help out and post positive missives.

Don't get bogged down in the negatives. When customers say good things about you, their comments are worthy of praise. Smart businesses actively seek out positive commenters as well and thank them, privately and publically if is appropriate.

Learning about your customers (commenters) can be as simple as a Google search. Finding them on social media and giving them a public “thank you” on Twitter or Facebook is perceived as a pleasant surprise.

Fish where the fish are — find your customers where they spend time on the web and interact with them. By doing so, you’ve positioned your business to build a loyal community.

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