We work hard for our businesses, and those of you who started your own enterprise are even more deeply concerned about it than others. Which is why criticism of your business can be so frustrating.
Nobody likes to be torn apart in public, especially when a bad review can cost you money. Customers, patients and clients will read online opinions and take them into account when hiring somebody. Your enterprise is no exception.
And it generally seems unfair – and often is. Some people are never satisfied. Some fixate on the problem they had with your business and blow it way out of proportion. Some are right to be angry but can’t let it go. Some are nuts.
But ignore it and move on.
I know this is difficult to do. We always feel better standing up for ourselves. And if we don’t point out the unfairness of a complaint, who will? Nobody.
But, in this age of the internet comment system, we need to adopt a more passive approach. A passive approach feels wrong and is not as emotionally satisfying as standing and defending yourself. Let it go.
Except in very rare and narrow circumstances (discussed below), our best and most productive move will be to ignore the criticism, or take it to heart, but in either case to move on without returning fire. In other words, contrary to American custom, “Don’t just do something. Stand there!”
Many solid reasons support this uncomfortable position.
Your opponent has the right to complain
In the U.S., people have the right to express their opinion. They do not have the right to outright lie about you, and such a clearly provable falsehood may move a negative review into the “actively oppose” category, at least in part because provable defamation gives you a claim to successfully extract retractions and damages from the complainer. But there is no law against being a whiny little toad. There is no law against being a jerk (who isn’t lying). The baseline position in the U.S. is that people can complain if they want. Even if you don’t like it. And overcoming this basic legal assumption makes it hard to threaten grumblers.
When push comes to shove, you can’t win.
If the complaint is an opinion (“Dr. Whanker is a moron”), a whine that oversimplifies matters (“They kept me waiting for more than an hour), or a generalized statement – fair or otherwise (“Everybody says his breath smells terrible”), you have no legal basis to remove it from the general public discussion. If you try, you will lose. If you threaten legal action that you can’t support, you will look impotent and foolish, and you will lose. If you undertake legal action that you can’t win, you lose AND you may pay the complainer’s attorney fees.
Internet hosting companies abide by these rules that protect complainers
Many states have Anti-SLAPP laws that penalize companies for suing to silence critics.
With the rise of the internet, there has been recognition that powerful companies and people who do bad things can silence dissent by suing complainers into poverty. To address this problem, 28 states and the District of Columbia have passed what are known as anti-SLAPP laws – with SLAPP standing for Strategic Lawsuit against Public Participation. These laws are grounded in protecting free-speech rights and often allow a person who has made public complaint the ability to quickly terminate a lawsuit against them and charge the subject of the complaint with paying everyone’s attorney fees and legal costs. These laws raise the stakes for anyone looking to defend a business from troublesome online complaints, tilting the risks further in the favor of a complainer. If you do not have a clearly watertight case of defamation (including a provable and important lie made against you) then you may suffer under one of these laws, cutting your case short and forcing you to pay your adversaries costs and fees. A non-profit advocacy group called the Public Participation Project posts a scorecard rating the strength of each state’s anti-SLAPP protection, while a First Amendment organization called the Reporter’s Committee for Freedom of the Press details how the law works in these cases.
By engaging with the complainer, you are almost always giving her what she wants.
Internet complaints drift away into obscurity. Internet fights are interesting and have a recognizable rhythm that keep people’s attention. If you respond to the complaint, the complainer now knows that she has gotten under your skin. She has your attention, and your attention to her grievance usually energizes her to make more noise against you. Often a lawyer’s response to a complaint will be posted alongside the criticism. Now the complainer can play the victim. There is an internet phenomenon often called the Streisand effect where your attempt to censor embarrassing information or criticism has the unintended consequence of drawing many more people’s attention to the item. I can cite dozens of instances where the attempt to shut someone up online only makes the complaint more interesting and many more people are drawn to the fight than were to the original complaint or problem. In other words, you can make the problem you want solved much worse by making a fuss about it. When you wrestle with a pig, you both get muddy and the pig enjoys it. Don’t give the complainer what she wants. Don’t jump down into her pigpen. Stay above the fray. Better yet, withhold the fray from her entirely.
You save time and money by ignoring the complaints. Keep your powder dry for real problems that you can fix. Don’t throw away resources on what is likely to be a losing cause. You will be even angrier when the complaint still stands and you have spent hours and thousands trying to bring it down. Which leads to what may be the most important reason to simply ignore the criticism . . .
Fighting complainers takes attention and energy away from your business. No enterprise succeeds by looking backward rather than forward. Running your company is a full-time job and dealing with complainers, for the reasons discussed above, is a distraction – not a good use of your attention. Every minute spent planning your revenge or plotting to remove a grievance from the web is a minute not focused on growing a successful business.
But in unusual and isolated instances, I have supported attempts to bring down internet business complaints. The deciding element is whether the company has an underlying claim against the online complainer that will win in court. The two likely reasons that might underlie a potentially successful claim are 1) if the online complainer tells lies that can be easily proven to be both false and impactful on the company, and/or 2) the complainer goes overboard with multiple posts, phone calls, or personal action that will support an allegation of stalking or a similar state law prohibiting obsessive and harmful behavior.
Admittedly, there are times where a protective strategy involves standing up for oneself, online and otherwise. But think hard before you decide to do it. The super-majority of these cases I have seen over the past 30 years would have ended best for the business if the complaint had simply been ignored.
Feeding the trolls only brings them back for more.
Copyright © 2020 Womble Bond Dickinson (US) LLP All Rights Reserved.National Law Review, Volume X, Number 324