Can reviews be considered libel or slander?

A fair critique of a restaurant, movie, TV show, or theater play is generally not defamatory, even though the comments or criticism may be disparaging and may cause a loss of business or reputation. Reviews are reasonably understood to be simply one person’s opinion.

One key to defending against defamation in modern times is in the word fair. If a reviewer has been fair in their observations, they are usually excused from liability. If a reviewer is merely expressing an honest opinion, then they are almost always protected by the First Amendment. Defamation also has to be some real form of communication, involving a third party. The allegedly harmful result of this communication may be varied: shame, ridicule, or a concrete harm, such as lost earnings or employment.

The damages that are required to be shown for recovery may also depend on whether the defamation was libel or slander. In cases of slander, which is spoken defamation, the party claiming that they were defamed will have to show actual injury, which could be economic damages or damages to their reputation. Libel, however, where the defamatory language is written, provides in many cases that damages are presumed.

If a reviewer sticks to expression of their opinion, they have a strong defense. It is when a writer starts invading privacy, or making allegations of fact that are demonstrably false, that a writer veers dangerously into defamation territory. Still, not all opinion is safe from a defamation action. Some opinions are meant to mask wildly false or recklessly harmful accusations. Thus, courts typically use a three-part test for defamation, and include the totality of the circumstances in making the final determination.

Case Studies: Reviews and Defamation

Case Study 1: Fair Restaurant Critique

John, a food enthusiast, visits a local restaurant and writes a review highlighting his experience. He expresses his opinion about the food quality, service, and ambiance, providing both positive and negative feedback.

While the restaurant owner may not agree with all the comments, John’s review is considered a fair critique and falls within the realm of protected opinion. This case study demonstrates that reviews, even if critical, can generally be considered an expression of personal opinion rather than defamatory statements.

Case Study 2: Unsubstantiated Allegations

Mary, a disgruntled customer, writes a scathing online review about a company, making false allegations of fraudulent practices without any evidence to support her claims.

The review goes beyond expressing a personal opinion and presents defamatory statements that could harm the company’s reputation. In this case, the company may have grounds to pursue a defamation claim against Mary for making false and damaging statements.

Case Study 3: Presumed Damages from Libel

David, an aspiring author, publishes a book review that criticizes a well-known novelist’s latest work. In his review, David makes negative assertions about the author’s writing skills and accuses the author of plagiarism.

Since the review is written and falls under the category of libel, damages may be presumed, meaning the author does not need to prove actual harm to their reputation. The novelist may consider taking legal action against David for making false and damaging statements.

The Internet is likely to provoke many future changes in what is allowed (or tolerated) in various forms of electronic speech. Stay on top of legal news, as the landscape for internet reviews is likely to change faster than you realize.