New York reportedly is cracking down on fake online reviews.
It’s about time. Others should follow suit.
Let’s say you’re an honest business owner, but your biggest competitor is not. It writes negative reviews about your company and glowing reviews about itself. And it pays others to do the same. Now anyone who visits Yelp or Amazon or eBay thinks your business is terrible and your competitor’s is great. That puts you at a massive disadvantage.
It’s totally unfair. In fact, the law has a name for it: unfair competition. Fake reviews also constitute false advertising, another form of unfair competition. Yet, by many accounts, it is common.
Washington’s anti-SLAPP statute makes fighting back even more difficult. Our statute aimed at punishing Strategic Lawsuits Against Public Participation is supposed to protect the exercise of our First Amendment rights, such as the right to exercise one’s freedom of speech. Unfortunately, it can be applied not only against plaintiffs who sue newspapers or politicians for defamation. It threatens to stop legitimate lawsuits about unfair competition.
The statute, RCW 4.24.525, says if a defendant can show it was sued because of its “public participation and petition,” the plaintiff must show by “clear and convincing evidence” that will win its claim. If it cannot do so, the case will be dismissed, the defendant wins its attorney’s fees, and the court awards it $10k to boot as punishment for the plaintiff’s having tried to stifle the defendant’s constitutionally-protected activity. This all happens within 60 days after the plaintiff filed suit — long before any discovery has changed hands.
How much chance does this give the honest business owner who sues over fake reviews? Not much, and it’s not fair.
It doesn’t take much imagination to envision the honest business owner rightfully suing over the damage it has sustained because of a dishonest competitor’s fake reviews. The dishonest competitor says it’s all sour grapes and speculation, and the plaintiff is just trying to silence free speech. Without the benefit of any discovery, the honest business owner has a real uphill battle at the outset of its case to show not only that it will likely win — but that it can do so with “clear and convincing evidence,” a much more difficult showing than the 50.1% “preponderance of the evidence” standard. The dishonest business owner ends up being the anti-SLAPP statute’s biggest fan.
The honest business owner needs help. Either the legislature needs to carve out a large enough exception from the anti-SLAPP statute to avoid perverse results, or government regulators need to do what New York did and go after those who traffic in fake reviews.
The consuming public and the honest business owner alike depend on reviews being legitimate. Neither can afford to let dishonest businesses continue to benefit from fake reviews.
Michael Atkins
Thanks for your comment, Eric. However, I don’t share your optimism — on this particular issue, at least. I find anti-SLAPP issues creeping into my clients’ issues more and more, and it usually favors the wrongdoer.