While the law does protect the right of Ontario consumers to post negative reviews written in “good faith,” commenters do still run the risk of being tied up in expensive litigation, Toronto litigator and mediator Howard Winkler told The Larry Fedoruk Show on Newstalk 610 CKTV.
Winkler, principal and founder of Winkler Dispute Resolution, told listeners that as long as individuals who choose to post a negative review of a person or business are acting in good faith and honestly, the defence known as ‘fair comment’ has always existed in Ontario law and “is something that an individual could rely on if they post a review which is then the subject of litigation.”
However, he added, “the real concern though for consumers, is not so much the risk of being successfully sued, and one has to worry about that if the review is false or it’s unfair, but the risk of getting tied up in expensive litigation.
“So, even if a defence exists, when one posts a review, they have to remember a few things. One, that the review they’re posting is going to, or could have a real impact on the people or business that they’re commenting on. Two, they should be honest, and they should be responsible and hopefully, if they do those things, they’ll keep themselves out of trouble.
“But one of the big risks is just being the defendant in a lawsuit, which requires the retaining of a lawyer or representing yourself in court,” said Winkler.
The problem today, he explained, is the reach of the reviews — which not only create liability for those posting a comment but can generate problems for businesses who may receive a false review.
“Depending upon the nature of the company, it’s not limited to just the small community that the individual may be in, it’s essentially worldwide in scope. And so, the impact of the comment and the review has been magnified as a result of the advancing technologies.”
Although many people post reviews in a knee-jerk fashion without an appreciation of the fact that the comments could be the basis of a lawsuit against them, Winkler suggested that instead, anyone publishing a review should be careful with their choice of language.
“So, for example, this ‘defence of fair comment’ that I mentioned — instead of saying that someone’s business is bad, one could say ‘in my opinion’ or ‘based on my experience.’ So, instead of being categorical in the comment, to the extent that people can express their view in language that makes it clear that it’s their opinion, then they’re going to be less susceptible to action.”
Also, said Winkler, reviewers should “provide some support for the expression of the opinion so that a reader or anyone who’s listening to the comment can judge for themselves whether to accept or reject the opinion or the comment that you’re expressing.”