Online reviews have a profound effect on businesses. For many locally owned businesses, they can make or break their future. Reviews can affect consumer trust, reputations, and purchasing decisions. In this day and age, consumers often look at online reviews before purchasing an item or service. The numbers are telling:
- More than 99% of American consumers read online reviews before making a purchase.
- Reviews influence 93% of consumers purchasing decisions.
- 84% of consumers place as much trust in online reviews as they do in personal recommendations.
However, there is so much commercial misinformation and deceptive reviews, it is difficult to determine what is real and what is not. As documented by the Washington Post, as many as 30 to 40 percent of online reviews are fabricated or otherwise not genuine. However, the rate of fake reviews can vary widely by type of product and website. The economic fallout from these reviews is tremendous. Fake reviews affected an estimated $152 billion in global sales in 2021 according to Time Magazine. For some, fake reviews can be fatal.
Recognizing the importance of preventing fake reviews, in August 2024, the Federal Trade Commission (FTC) issued a new rule prohibiting businesses from posting fake or misleading reviews. The new rule imposes hefty civil penalties against businesses that violate it. According to FTC Chair Lina M. Khan,
“[b]y strengthening the FTC’s toolkit to fight deceptive advertising, the final rule will protect Americans from getting cheated, put businesses that unlawfully game the system on notice, and promote markets that are fair, honest, and competitive.”
Businesses may also face prosecution in state court for false advertising, defamation, tortious interference with contracts, and other derivative claims. But what is the redress if an individual posts fake reviews against a company? While filing a defamation lawsuit against the individual seems like the obvious solution, these individuals often attempt to shield themselves by framing their statements as “opinions,” which are generally protected under both the Ohio and U.S. Constitutions.
Defamation in Ohio
Defamation is defined as a false statement of fact about a person that injures their “reputation, exposes [them] to public hatred, contempt, ridicule, shame or disgrace; or affects [them] adversely in [their] trade or business.” Defamation claims are usually alleged more specifically as claims for “libel” or “slander, depending on whether the defamatory statement was published in writing (libel) or spoken aloud (slander).
To establish defamation, the plaintiff must show:
- a false statement of fact was made
- the statement was defamatory
- the statement was published
- the plaintiff suffered injury as a proximate result of the publication
- the defendant acted with the requisite degree of fault in publishing the statement.
However, “opinions” are generally protected and immune from defamation claims under the Ohio and U.S. Constitutions.
In Ohio, whether a statement is a protected opinion is determined by the totality of the circumstances, which involves at least four factors: (1) the specific language used; (2) whether the statement is verifiable; (3) the general context of the statement; and (4) the broader context in which the statement appeared.
Amaro v. DeMichael
Recently, Ohio’s fifth appellate district examined numerous negative online reviews that two individuals allegedly posted against a Texas law firm, and whether they could be deemed opinions and thus protected against defamation claims, in Amaro v. DeMichael, 2024-Ohio-3290. Here, Plaintiff R. James Amaro, P.C. alleged defendants Patrick and Ronald DeMichael posted around 100 fake reviews on Amaro’s Google My Business listing between February and June of 2022. Defendants filed a Motion to Dismiss, arguing that the statements in the reviews were constitutionally protected opinions. The trial court agreed, and granted defendants’ Motion on the grounds that the reviews were constitutionally protected statements of opinion.
On appeal, the fifth district grouped the reviews into 5 categories: “Star-Only Reviews,” “Wholly Positive Reviews,” “Poor Communication Reviews,” “No Communication Reviews,” and the “Client Language Reviews,” and determined that approximately 60 reviews were more than mere opinions, as they described fictitious client relationships and purported communication with the firm that could be easily verified as true or false. On review, the fifth district analyzed the statements under the four factors Ohio courts consider determining whether they are protected.
Specific Language Used
The court analyzed the “specific language used” factor by determining whether the words in the reviews would be understood by a reasonable reader as fact or opinion. It focused on whether the language was precise and capable of being verified as true or false. The court found that statements in the “Client Language Reviews” and “No Communication Reviews” were specific and unambiguous, such as claims about failing to follow up or not returning calls—factual assertions that could be proven. In contrast, other reviews like the “Star-Only” and “Poor Communication” reviews were vague and open to interpretation, making them more likely to be seen as non-actionable opinions. Thus, the precise language in the actionable, “Client Language Reviews” and “No Communication Reviews” weighed in favor of allowing the defamation claim to proceed as to those comments.
Whether The Statements Are Verifiable
Next, the court analyzed whether the statements are verifiable, focusing on determining whether the reviews contained objectively provable or disprovable claims. Statements that can be proven true or false are more likely to be considered actionable under defamation law. For the “Star-Only Reviews,” “Wholly Positive Reviews,” and “Poor Communication Reviews,” the court found that the statements were subjective, such as whether communication was “poor” or whether a legal professional was “knowledgeable.” These subjective impressions vary from person to person and are not easily verifiable, which weighed against actionability.
However, for the “No Communication Reviews” and “Client Language Reviews,” the court found that the statements were capable of being objectively proven or disproven. For example, claims about whether a phone call was returned or whether a reviewer was a client of the appellant could be factually verified. Additionally, references to specific client interactions—such as “cases,” “accidents,” or “services”—indicated factual claims about the reviewer’s experiences, making the statements verifiable. Because these statements could be objectively confirmed, this factor weighed in favor of actionability for the “No Communication” and “Client Language Reviews.”
General Context of the Statements
The court then examined the general context of the statements by looking at the broader setting in which the allegedly defamatory reviews were posted. The reviews appeared in an online forum that presents itself as a neutral space for sharing real experiences. Here, the court noted that all of the reviews followed a similar pattern, were posted over a short period, and purported to reflect genuine client experiences. This uniformity, combined with the suggestion that the reviewers had direct interactions with the law firm, would lead a reasonable reader to believe the reviews were based on first-hand knowledge. The court concluded that, given the context, readers were likely to perceive these reviews as factual accounts rather than mere opinions, weighing this factor in favor of actionability for all of the reviews.
Broader Context
Lastly, the court analyzed the broader context, focusing on where the allegedly defamatory statements appeared and how that setting influenced a reader’s perception. Here, the reviews were posted on the law firm’s Google My Business (GMB) page, a platform generally used by clients to share real experiences with businesses. Although online forums often invite casual or opinion-based commentary, the court found that the GMB page, by its nature, signals to readers that the reviews reflect actual client experiences. This setting leads readers to expect factual content, especially when the reviews include specific claims about unreturned phone calls, lack of follow-up, or direct client interactions. Therefore, the court held that the placement of these detailed reviews on the GMB page would lead a reasonable person to view them as factual statements, not opinions.
In its analysis, the court noted the “Star-Only,” “Wholly Positive,” and “Poor Communication Reviews,” lacked specificity and thus leaned toward being interpreted as subjective opinions. In contrast, the “No Communication Reviews” and “Client Language Reviews” detailed, objective language—combined with their appearance on a platform intended for factual client reviews—suggested these were more than just casual remarks. The specificity of the claims, such as those involving unreturned calls or failed follow-ups, gave the reviews a verifiable nature that could influence prospective clients. As a result, the broader context of these reviews weighed in favor of actionability, since they could reasonably be understood as conveying provable facts about the law firm’s services.
Conclusion
The Amaro decision helps shape the legal landscape of defamation claims in Ohio, particularly for businesses. As businesses increasingly contend with the challenges posed by fake reviews, this decision underscores the importance of understanding what constitutes defamation and what is protected. By being aware of what may be actionable, businesses and their counsel can better navigate the complexities of reputation management on the internet.
For additional information regarding the content of this article or how to protect your company from false reviews, please contact Michael R. Cantu (mrc@kjk.com; 216-736-7212) or Robert E. Zulandt, III (rez@kjk.com; 216-736-7259) or an attorney within KJK’s eCommerce practice group.