Google is the most-used search engine in the world. As part of its searching services, it provides details about businesses searched, and it gives users a means to read and post business reviews.
Notwithstanding Google’s content policies, some reviewers use fake names and/or post reviews that are false and defamatory. Sometimes these reviews are posted by competitors or disgruntled employees. For some businesses, these false reviews can seriously affect their hard-earned reputations and bottom line.
Taking the position that it merely hosts third-party content and is not a creator or moderator of that content, Google may be unco-operative in removing false and defamatory reviews. Businesses might discover that Google will only remove reviews where a court has found that material is illegal and/or should be removed. This is of little use to small- and medium-sized businesses that can’t afford the cost of litigation.
However, there may be some light at the end of the tunnel. The Supreme Court of South Australia (Full Court) recently affirmed Google’s liability as a secondary publisher after notification of defamatory Google search snippets and hyperlinks. If this decision is widely adopted, the company will have to reconsider its “hands-off” approach.
What, then, are some effective strategies for businesses faced with false and defamatory Google reviews?
First, some non-litigious suggestions
If the reviewer’s contact information is known, it may be worthwhile to send a carefully drafted letter to the reviewer that outlines the words complained of, requests the immediate removal of the post and advises that legal proceedings could be commenced against the reviewer. The reviewer might volunteer to remove the false and defamatory review and the matter may end.
Google provides an online process where it can be alerted by businesses to false and defamatory reviews. When reporting to Google, a business or its legal counsel should demand that the review be removed immediately, and put Google on formal notice of the false and defamatory statements. In order to preserve a right to sue Google, businesses and their counsel must be careful to comply with any statutory obligations to provide a Notice of Libel. Regrettably, dealing with Google in this way has mixed results, but it is worth a try as a first measure.
By taking ownership of the Google business listing, a business may, among other things, respond directly to any false and defamatory reviews. This approach could allow other readers to gauge the authenticity of the false and defamatory reviews and encourage them to disregard it altogether.
Given the prevalence of online business reviews and the vast number of people conducting online searches using Google, it is critical that businesses encourage satisfied customers/clients to post positive reviews. The posting of positive Google reviews might altogether diminish the impact of false and defamatory reviews and also highlight their inauthenticity. At the very least, it provides readers with a more balanced picture.
Take the litigation route
If non-litigious routes fail, another option is to sue the reviewer. This involves many steps and will be expensive. If a business is successful in obtaining an Ontario judgment against a reviewer, Google will likely remove the review.
In cases where the identity of the Google reviewer is unknown, legal counsel may bring a pre-action application for a Norwich Order compelling Google to disclose the reviewer’s name, e-mail address, Internet protocol address and any other identifying information so that a defamation claim may be pursued (see York University v. Bell Canada Enterprises  O.J. No. 3689).
Once the identity of the poster is disclosed, legal counsel may succeed in persuading the reviewer to remove the reviews and settle the matter with minimal further cost. If that fails, a claim can be pursued against the reviewer.
Suing Google as a co-publisher
Only deliberate acts can lead to liability as a publisher. Google will in the first instance likely be shielded from liability, since it plays only a passive instrumental role in facilitating its business review content (see Crookes v. Newton, 2011 SCC 47 and Niemela v. Malamas 2015 BCSC 1024).
This, however, will not likely be the case where Google has notice of the false and defamatory statements and fails to remove them within a reasonable time. The Supreme Court of South Australia, in Google Inc. v. Duffy  SASCFC 130, recently held that once Google received notification of false and defamatory statements, it was liable as a secondary publisher.
It is notable that the court in Duffy found that Google’s facilitation of the defamatory webpages is both substantial and proximate: “Google has republished the Ripoff Reports by abstracting sufficient material to inform the searcher of its contents, by repeating and drawing attention to the defamatory imputation, and by providing instantaneous access to it though the hyperlink.” There can be no doubt that Google, as the “host” — and through the placement of business review content in a prominent screen position on every Google business search result — facilitates the publication of Google business review content in a substantial and proximate manner.
There is a strong argument, on established principles, that Google will be liable as a publisher of its business reviews where it has received notification of the false and defamatory reviews and has failed to remove them within a reasonable amount of time (see Pritchard v. Van Nes 2016 BCSC 686). This differs greatly from the situation in the United States, where Internet service providers are immune from liability even after notice of defamatory content (see Communications Decency Act, 47 U.S.C., s. 230, and Zeran v. America Online, Inc., 129 F.3d 327, 332 (4th Cir. 1997)).
If Canadian courts follow Australia’s lead, Google, as a co-publisher after notification, will either have to defend the review as would the original poster, or remove the review in order to avoid the cost and exposure of litigation. The hope is that with time, Google will become more responsive and proactive with the voluntary removal of demonstrably fake, false and defamatory business reviews.
Howard Winkler, the founder of Winkler Dispute Resolution, is a senior Toronto mediator and litigator with more than 33 years of problem-solving experience. He specializes in defamation law and commercial litigation. Eryn Pond is a lawyer at the firm who specializes in defamation law and has a particular focus on social justice and education law.
Published in The Lawyer’s Daily on October 19, 2017