In this article I wrote about writing negative reviews of lousy products.
Several readers replied with some interesting questions and experiences.
I’m not the only one who does this.
One reader told me the following situation he found himself in:
I once wrote a bad review for a popular brain supplement. I included links to studies, Better Business Bureau, class action suits, poor customer reviews, news items from reputable sources, links to scientific studies supporting why this particular supplement could not work, etc. But I was harassed by this company’s legal team. When one of their lawyers called me at 10 pm on a Friday night threatening me, I decided it was time to take it down. So my question is… how do you avoid getting sued?
Getting sued sucks.
You can’t avoid getting sued. Any party can sue any party. If you get served a lawsuit, the best thing you can do is hire a lawyer which costs money.
Even if you win it costs you a ton of money. Tens of thousands. Maybe more. Likely more.
And you get nothing out of it in this situation. It’s not like you win a huge damages award. You merely avoid paying out damages.
The company suing you to get rid of a negative review has a lot to gain so it’s worth their time and money to bully publishers.
This particular Fat Stacks reader did the financially prudent thing. Unless you’re making hundreds of thousands per month, you don’t have the resources to trot off and defend a defamation claim.
Even if you have business insurance, do you want to make a claim for something you can avoid? If you make too many claims, your premiums go up and/or you can’t renew your policy. That’s a heavy price to pay for principle.
What about freedom of speech and all of that?
Libel vs. freedom of speech and the press is a legal issue courts struggle with. You never really know how it’s going to end up.
I know almost nothing about defamation law.
All I know about defamation law (libel and slander) is that truth is a defense. If what you write or say is true, you’re fine.
This means your negative review MUST be true in every respect.
I believe (based on some Google searches – but please consult your own lawyer) that in Canada and the USA, the party suing for defamation must prove the content is defamatory… as in must prove it’s not true.
In other words, the publisher getting sued does not need to prove truth.
My negative reviews are true. I have no reason to make stuff up. I merely write about my experience. If the company sued me, they’d have to prove what I say about its product is not true (I believe this is the case but I have not consulted a lawyer).
Product type can make a difference
The Fat Stacks reader’s situation above is particularly difficult because it’s a review of a supplement. That’s hard to prove that it doesn’t work (or work). There’s a lot of material for a lawyer to go to town on you.
This is why I avoid health topics entirely and have for years.
In my case, my negative review was about some physical product that promised to do such and such.
It didn’t do such and such. I can prove it. I doubt the company could prove that I was untrue.
What would I do if this company threatens to sue me?
I don’t know. I do love a good lawsuit. I do have funds to defend. The question is whether I want to use that money to defend. I don’t have unlimited money. In fact, such a lawsuit would probably hurt me and my family financially. That review will never make enough money to pay my lawyer’s fees. I’d be spending a lot of money on principle.
The first thing I would do is consult a defamation lawyer.
Depending on their advice, I’d decide what to do. If the lawyer said it could be dismissed quickly, I’d throw some money at it.
If that didn’t work and it looked like the lawsuit would cost piles of money, I’d probably capitulate. It would suck having to do so, but it’s not like I have a hundred million in the bank where I can throw a few hundred thousand down the drain.
There may be all kinds of new laws surrounding online reviews. Think of all the negative reviews on Amazon, Google My Business pages, etc. I suspect many companies have tried getting rid of those reviews via legal channels. I have no idea whether any have been successful and I don’t know the nuances of this legal area, but it’s definitely an area that is probably quickly evolving in the courts.
Another reader’s experience
Another reader had a very good point. He emailed me the following:
…but a lot of these affiliate contracts have non-disparagement clauses. So once you’re signed up, you can’t write a bad review anyway. Not sure what the legal situation would be, other than getting booted out as an affiliate. (Assuming, as you say, the bad review is honest!)But it then opens a new can of worms – if I’m tied to a non-disparagement clause in an affiliate contract, and therefore write a glowing (and yet dishonest) review, which I profit from financially, isn’t that fraud?! Lol.Best to do as you do, buy the product, review it and THEN think about affiliating – if the product’s any good. I actually had to turn my nose up at one affiliate previously, where I’d actually bought the product, and was happy with it. But wow! The terms in their affiliate contract were basically asking for editorial control of my website. They can take a hike!
This email brings up a very good point.
Many affiliate contracts forbid you from writing negatively about the company in any way.
It gets murkier. What if you love some of a company’s products but one is a real stinker?
I would publish the negative review. If the company booted me out of the affiliate program, so be it. I’d probably make that public as well, which looks even worse.
Or, you could play it safe and not review the stinker product.
I think many companies would not boot you out of an affiliate program, especially high-profile companies. Take my smartwatch website for example. The companies that sell smartwatches are huge brands.
There are companies where I love some of their watches but don’t like others. It’s bound to happen.
I doubt these companies want it to be known they attempt to control review content with threats.
But a lot of companies such as supplement brands, info product brands, etc. will do almost anything to get rid of bad reviews. They’re a different breed. Not esteemed or well known, but well funded with a team a lawyers.
Each situation is different.
At the end of the day:
- Be truthful in your reviews. Don’t overstate. Be prepared to support your findings. If you don’t own the product or have never used it, that could be a problem.
- Sometimes we have to make difficult decisions in this business (as in any business).
- If you get legal threats, consult a lawyer immediately – preferably a lawyer who does a lot of work in defamation law.
Jon runs the place around here. He pontificates about launching and growing online publishing businesses, aka blogs that make a few bucks. His pride and joy is the email newsletter he publishes.
In all seriousness, Jon is the founder and owner of a digital media company that publishes a variety of web properties visited and beloved by millions of readers monthly. Fatstacks is where he shares a glimpse into his digital publishing business.