The technological advances of the last several years have made online shopping a way of life. At the heart of this new activity is the ability to broadcast consumer complaints. Sites like Yelp!, Angie’s List, and Amazon have turned the average consumer into an aficionado, giving nearly anyone the ability to publish opinions to a massive audience.
As a result, online shopping has added a new feature to the shopping experience: lawsuits against opinionated consumers.
How Can Sellers Sue?
One word: defamation. Defamation, specifically libel, is the communication to a third party of a false statement that damages or harms the reputation of another. The old saying about “words never hurting” is not true in the legal world.
Nonetheless, hearing about sellers initiating defamation lawsuits over bad reviews sounds outrageous, and has caused many to ask, “Why aren’t the websites hosting the comments liable?” and “What about the First Amendment?”
Well, the websites aren’t liable because federal law (specifically 47 U.S.C § 230) protects the websites from being sued for providing a medium through which defamatory statements may be published. The idea is to hold the author liable and not the website. Additionally, the First Amendment doesn’t protect speech that is defamatory. That itself sounds ironic, because the text of the First Amendment quite literally says that “no law” shall abridge free speech.
Should Shoppers Stop Reviewing?
Absolutely not. The First Amendment doesn’t protect speech that is defamatory, but even that comes with a caveat: truth is an absolute defense. So, if your review states the truth or states an unvarifyable opinion, then you won’t lose a libel suit.
Moreover, we have a pretty strong love for free speech in this country. So strong, in fact, that many states have drafted laws that protect individuals who are being sued simply for speaking their mind. An anti-SLAPP motion typically allows the defendant to collect attorney’s fees and costs for defending against a lawsuit they never should have had to answer for in the first place.
Although receiving a cease and desist letter for posting a review would be disconcerting and terrifying, to say the least, shoppers should take solace that the truth will protect them. At the same time, businesses should think twice before threatening consumers. Consider: one of the companies who recently threatened to sue a reviewer lost their Amazon seller account as a result of the ordeal.