Managing Slander
Facing a negative online review is no walk in the park. It hurts your reputation and can scare potential tenants away, even if the review was written in jest. But in response to those messages that truly malign an owner’s image, crossing the line into making false criminal accusations, owners should take charge. And pre-legal steps are just as important before filing any sort of injunction or judgment.
1. Gather information. Who posted the bad review? Determine the identity of the reviewer and see if you can handle the problem off line and in person. You’ll also want to be sure the review wasn’t made by a sour ex-employee, or even a competitor (it happens
more than you might think).
2. Attempt pragmatic solutions. Have you adequately dealt with the problem with proper protocol? A nonthreatening confrontation coupled with effective communication may convince the tenant to take down the review or, at least, update it with information about its resolution.
3. Strategize. Is your tenant in violation of his or her lease in any way? If yes, that violation can be used as leverage. Owners should also think carefully as to whether they want to make the dispute public by filing a lawsuit; it can make for some pretty unflattering press.
4. Promote positive thinking. When using a search engine, most users look only at the first two pages of results. If you’re unable to remove the bad review, encourage your happier tenants to leave their thoughts. With enough positive reviews to drown out the one harmful rating, you can essentially bury it on a later page.
There’s no question that apartment-ratings and -review sites are becoming a more accepted norm in the multifamily industry. Indeed, owners are even encouraging tenants to leave strong reviews on apartment-ratings sites in hopes of driving more leads.
Across other industries, where negative reviews can be a bit more harmful to a small business’s bottom line, companies are fighting back by suing customers for damages when they leave reputation-damaging reviews. And as rating sites become more prolific, apartment owners may find themselves fighting back the same way.
“They do have legal remedy,” says Patrick Pettitt, lead attorney and founder of Hampton, Va.–based Sage Law Practice Group. “They do have legal tools at their disposal.”
Pettitt deals frequently with evictions and consumer law issues affecting property management firms, but the issue of defamation online is slowly propping up center stage. And the questions he receives always lead toward one end: defining the difference between a negative opinion and an actual slanderous, defamatory comment.
Like Pettitt, Christopher Huntley normally deals with leasing, development, and some eviction work as lead attorney at Minneapolis-based Huntley Law. But he has yet to see a multifamily owner filing suit against someone leaving bad reviews. And that’s largely because a profit forgives all sins: The rental market is doing so well now that a bad review or two won’t make much of a dent in demand.
“It’s an interesting perspective,” Huntley says. “But it probably wouldn’t matter too much, quite honestly.”
Owners can sue for defamatory comments, and, in some states, they can get a court injunction to remove the statement from online. But depending on the property, it’s not worth it if doing so incurs high costs, says Huntley.
“What are [the owners] hoping to accomplish?” he says. “You have to weigh everything. Who’s even looking at these websites?”
Before Taking the Plunge …
It’s unclear how many tenants actually rely on online forums. For properties that are fairly minimal in maintenance and operations, prospective tenants are more apt to trust what they see in front of them versus what’s being said on a website.
Nonetheless, some visceral and negative complaints about living conditions or services may toe the defamatory line, provoking a knee-jerk reaction from an owner.
“You end up in a conundrum,” Pettitt says. “It’s not clearly a defamatory statement. And you’re not entirely confident in who the person is behind the posting.”
It’s critical to seek out the identity behind the posting, to remedy the situation before getting lawyers involved, lawyers advise. Some owners will be surprised to find a sour ex-employee posting negative reviews about their building rather than an actual tenant.
Additionally, a court injunction involves heavy overhead prices, so other, nonlegal solutions should be attempted first before litigation even begins, Pettitt says. Attorneys can charge anywhere from $250 to $350 an hour in the Virginia market, for example, and some cases can run about $6,000 to $8,000 to get the lawsuit drafted and in court.
Owners should also consider the timeliness of judges in their state. In Virginia, judges are slow to issue injunctions for online postings, Pettitt says. The case may also get stuck in federal court if the website where the review is posted was formed in a different state. You’ll have a federal judge looking at it, and with the standard for a federal injunction extremely high, it’s hard to get a second look.
Judgments are just as tricky to file. Pettitt says it’s often difficult to get tenants to pay for damages in any case, so suing for such and filing a judgment could be wasteful. And the embarrassment resulting from the press getting its hands on a public suit should be enough for an owner to think twice, even if he or she can afford the time and fees involved in pursuing the legal route.
“Injunctions are rare,” Pettitt says. “While they look good on paper, pragmatism usually forces other approaches.”
When Lawyers (Should) Attack
Damaging allegations aren’t the same as complaints about bad customer service. But when a tenant makes a false criminal accusation, and all other nonlegal routes have been pursued, an owner should begin a suit.
In Pettitt’s latest case, a woman alleged she was sexually assaulted by a specific member of her building’s maintenance team. How did she get the message out? On a ratings site. That’s when the management team sent out formal demand letters and became aggressive.
The team members spent hours reviewing maintenance logs and conducting interviews. They were confident, based on their examination of the logs, that the particular maintenance member was never in the accuser’s apartment. And knowing that the maintenance team worked in groups, the team was also confident that there was no instance of any team member having been alone in the accuser’s unit. Because it was such a damaging allegation, and knowing the tenant’s own personal history, they got her to take down the post and didn’t sue for damages.
The fairly quick process (about 30 days) entailed gathering facts about the case and communicating directly with the resident, who moved out as part of the agreement.
But this won’t always be the case: Not all tenants agree to take down their reviews, and to many consumers, this is a free-speech issue.
In January, a Virginia court reversed a preliminary injunction for a consumer to censor her negative review of a business on Yelp, a ruling that was cheered by many consumer rights organizations. And free-speech groups are also more actively preventing the censorship of slanderous reviews. Removing reviews should be the tenant’s choice, they argue, and not mandated by the courts.
So Pettitt reminds property managers to try their best to deal with resident complaints before moving forward in these types of severe cases. Most harmful reviews originate from a complaint that wasn’t dealt with to the renter’s satisfaction, after all.
If the complaint has been handled efficiently and correctly and you find that you’re dealing with a vindictive tenant, that tenant’s harassment may be sufficient to show that he or she is in violation of the lease. The threat of eviction can then force the issue until the tenant moves out. Meanwhile, solutions can be negotiated in which the tenant voluntarily takes down the review or, at least, removes the most damaging aspect of it.
Pettitt also warns against getting the company behind the website involved too much, as its financial interest in protecting its reputation can cause more problems.
“You suddenly have another well-skilled attorney in the mix who’s going to oppose all your efforts,” he says.
And if the complainer, or the website, won’t voluntarily remove the posting, you can always encourage your tenants to leave positive reviews so that you’re essentially burying the offensive posting.
“Filing a lawsuit is not always your first choice,” Pettitt says. “It is valuable and can be effective. But it is critical that you attempt other, nonlegal solutions first.”