No one can blame you for getting angry at a bad review. You put a lot of effort into your business, so it can feel personal if someone doesn’t like it. That goes double when the reviewer doesn't have the grit to sign their name to the takedown.
Negative reviews may be part of the business landscape, but that doesn't mean you can't fight back. For starters, bizHive has plenty of suggestions for handling negative opinions.
But when reviewers present false statements as facts and hide behind the anonymity of the Internet, it might be time for heavier artillery. Let's see what you can do to protect your reputation from undeserved hits.
What Is a John Doe Lawsuit?
- An anonymous online reviewer defames an individual.
- The individual files a suit without naming a defendant.
The court designates the defendant as "John Doe" or "Jane Doe," and the lawsuit proceeds.
“The benefit of filing a John Doe lawsuit is that once the lawsuit is filed, you have the assistance of the subpoena power of the court,” says Clark.
He notes that with a subpoena, your lawyer can potentially obtain information from the website host, including account details and IP addresses. Each new piece of information can lead you closer to the identity of the reviewer.
Pro tip: You don't get to look forever.
“If you burn through several subpoenas and come up empty-handed, the court may decide you’ve had your bite at the apple, so to speak,” says Clark. “It may say you have to either name somebody based on the information or dismiss the lawsuit.”
Potential Roadblocks When You File a John Doe Defamation Lawsuit
Don't be surprised if website hosts balk at disclosing the identities of anonymous reviewers.
“Their position is you should be able to post anonymously without fear of being sued,” says Clark. “Having said that, their only real defense is that you have not stated a strong case for defamation based on the plain facts of the post.”
Clark points out that just because someone expresses a negative opinion of your business doesn’t necessarily mean you should file a defamation lawsuit. If the post is simply the reviewer’s opinion and doesn’t have a derogatory or demeaning connotation, it probably doesn’t meet the standard for defamation.
In that case, a court could rule that you are not entitled to a subpoena.
Pro tip: According to Clark, most states follow the single publication rule, which means the clock for filing a defamation claim starts ticking from the date of the first post. Others may view and share it, but the court only considers the initial publication when determining the statute of limitations.
If you’re not vigilant about monitoring online reviews, you may waive your right to do something about it, Clark notes. Learn some tips for keeping track of reviews in "Make a Better Impression on 88% of Your Potential Clients."
Is a John Doe Lawsuit Worth It?
Before you decide to file a John Doe lawsuit, you may want to evaluate…
- The content of the review. Defamation is a false statement that is derogatory and causes reputational harm. Before you file, make sure the review rises to that level so you don't waste time or money.
- Your state’s statute of limitations. In most states, your right to file a defamation lawsuit ends a year after the initial publication. That may make a John Doe suit attractive because you don’t need to know who wrote the review to move forward.
- The cost. Clark estimates that the minimum you might spend on a John Does suit is probably $5,000. To actually get to the identity of the reviewer? Between $15,000 and $20,000.
“It’s a challenging procedure that takes time and can be costly,” Clarks says of John Doe lawsuits. “But it may be the only alternative for the business owner who has been defamed and is repeatedly being defamed because the post remains active.”
Pro tip: Lawsuits are a gamble in the best of circumstances, but when your suit targets an unknown defendant, your odds of success may diminish significantly. Think carefully, and consult a lawyer who has experience with defamation lawsuits. Their objectivity may benefit your business.
Keep in mind that there's no small business insurance policy that can fund a lawsuit you initiate. Liability policies are designed to protect you from lawsuits that name you as a defendant. Learn more about that here: "Small Business Brings $65k Lawsuit over Negative Online Review."
About Mark Clark
A graduate of Kenyon College and Michigan State University College of Law, Mark Clark’s current practice areas include Internet law, copyright and trademark law issues and litigation, as well as trade secret, non-compete, and maritime litigation. Most recently, Clark has successfully litigated claims on behalf of trademark holders under the Anti-Cybersquatting Protection Act and employers and employees in non-compete and trade secret litigation, defamation litigation, and online defamation cases.