Can You Get Sued for Leaving a Bad Review?

Image of smartphone with Yelp on screen with overlay text that reads Can You Get Sued for Leaving a Bad Review? Maybe.

The First Amendment and other laws offer protection against a successful lawsuit over a negative review of a business, product or service.

This applies whether you are a professional reviewer writing for a major news organization or simply an individual posting your thoughts online via platforms like Yelp or Amazon.

But that doesn’t mean big companies will simply let you post negative reviews about them. Quite the contrary: They could try to use their power to silence you, particularly if they know you don’t have the resources to endure a prolonged court case. Here’s how the law protects you – and when it doesn’t.

Can you get sued for leaving a bad review? Here's what you need to know

The First Amendment protects critical speech including a bad review

The First Amendment protects the right to express personal opinions, whether that’s for or against a political candidate, criticism of government policy or the quality of service at a local store. It also protects the sharing of factual information even when that information is negative, such as a bad review of a business, product or service.

There are limits to this protection. For instance, some categories of speech are not protected by the First Amendment. Your review cannot be obscene. It cannot contain a true threat against the business owner.

But the most likely way that you will be sued is if your review is defamatory. While each state has its own definition of defamation (also referred to as “libel” when in written form or “slander” when in spoken form), these laws generally allow someone to be sued if they made a false assertion of fact, caused real damage (such as loss of business, not just embarrassment or hurt feelings), or if they made the statement with “actual malice” – that is, a person knew a fact was false or acted in reckless disregard of whether or not it was true.

This means that you are protected if:

  • Your review is factually accurate, even if it’s negative.
  • You used your best efforts to get all the facts right, even if they ended up being wrong.
  • You are simply stating your opinion.

Photo of computer screen showing one-star review criticizing restaurant

Photo of a computer screen showing a one-star review criticizing a restaurant in Portland, Ore.

Posting a restaurant review that says your soup was too salty is likely protected because this is your opinion. Saying a restaurant intentionally oversalts its food to hide the fact that the food is about to spoil is not, if the restaurant can prove that is not true. That’s a false statement, not a negative opinion, and could make you liable for defamation if you made this up because you have a longtime dispute with the chef and simply wanted to post a negative review.

RELATED: Is lying protected by the First Amendment?

Defamation laws apply to everyone, regardless of whether you are a food critic at a major publication or an average consumer posting your thoughts online.

Anti-SLAPP statutes offer additional protection from lawsuits for leaving a bad review

Even if a negative review doesn’t rise to the level of defamation, a business or person may decide to sue with the goal of forcing the negative reviewer to spend money and time to defend themselves or agree to take the negative review down.

These lawsuits are referred to as “SLAPP” suits (“SLAPP” stands for “Strategic Lawsuit Against Public Participation”). Many states have enacted “anti-SLAPP” laws that allow a person who has been frivolously sued to get the lawsuit dismissed quickly – eliminating the time and expense of defending themselves – and to possibly recover the legal expenses they have incurred. Anti-SLAPP laws have proven to be a strong deterrent against frivolous lawsuits, particularly lawsuits brought by business owners who seek to silence criticism.

Section 230 protects websites – and you – from lawsuits for leaving a bad review

Knowing that the First Amendment presents a high barrier to winning a defamation lawsuit against the reviewer, businesses or people who receive negative reviews can turn their attention to the middleman: the website or social media platform where the review was posted. The major corporations that owned these sites could be seen as having “deep pockets,” meaning (1) they had more money to go after in a lawsuit than the private individual who actually posted the review, and (2) they were more likely to make a business-based decision to take the review down to avoid a lawsuit.

Since 1996, however, websites where reviews are posted – including social media platforms – have been protected from lawsuits over bad reviews by a law often identified as Section 230, regardless of the merits or outcome of a lawsuit filed against the person who posted the review.

The Consumer Review Fairness Act and other consumer protection rules around leaving bad reviews

Knowing they weren’t likely to win defamation lawsuits based on true, well-meaning or opinion-based reviews, businesses began to use another tactic: having users contractually agree – often without their knowledge – to not engage in negative reviews.

Companies doing business online would often have language buried deep in their terms of service or purchase orders that prevented negative or disparaging reviews, even if those reviews did not meet the legal definition of defamation – and even if those reviews were entirely true. By agreeing to these terms, an individual would be making a contractual agreement not to say bad things about the company, its services and/or its products. If you did, you could be sued for breach of contract.

Imagine that you went online to a large clothing retailer’s website to buy a white cashmere sweater. You purchase the sweater and as part of the purchase process click a button agreeing to certain “Terms and Conditions of Purchase” that you can read by clicking a separate link. Chances are you never read that link – who reads the fine print, after all – which means you don’t see the paragraph that says:

“Customer agrees that Customer will not at any time make, publish or communicate to any person or entity or in any public forum any defamatory or disparaging remarks, comments, or statements concerning the Company or its businesses, or any of its employees, officers, and existing and prospective customers, suppliers, investors and other associated third parties.”

Your sweater comes with a tiny red dot on it that won’t go away. You go to X and post:

“So mad: My expensive cashmere sweater from Clothing Company came with a red dot. I can’t wear this and won’t be able to return it for a new one in time for the company holiday party!!!”

You can’t be sued for defamation because it’s all true. But the company could threaten to sue you for breach of contract.

That’s no longer a worry thanks to the U.S. Consumer Review Fairness Act (CRFA) of 2016, which helps protect a reviewer’s honest opinions about products, conduct or services.

The law took effect in 2017 and says that companies cannot use form contracts (like click-through agreements) that include provisions that:

  • Prevent customers from reviewing a company’s goods and/or services.
  • Allow the company to penalize a customer for giving a review.
  • Require a customer to give up ownership of copyright to a company when writing a review about the company (which would make it easier for the company to get the review removed from the internet).

The law still allows companies to force an individual, under threat of a breach of contract lawsuit, to remove posts that:

  • Contain confidential or private information about the business or about a person other than the reviewer.
  • Are defamatory because they are clearly false or misleading, or are harassing, abusive, obscene, vulgar, sexually explicit, or disparaging with respect to race, gender, sexuality, and ethnicity.
  • Are unrelated to a company’s products or services.

In addition, the Federal Trade Commission in August 2024 adopted rules allowing the commission to seek civil penalties (fines and such) to punish people or companies that post fake reviews or testimonials, or that threatened “groundless legal action,” physical harm or “false public accusations” against individuals who posted negative reviews.

U.S. Supreme Court Justice Oliver Wendell Holmes once famously said, “The best test of truth is the power of an idea to gain acceptance in a marketplace of ideas.” This is a core value when it comes to the First Amendment. And when it comes to the real marketplaces of goods and services, the First Amendment ensures we all get to freely discuss and determine for ourselves which are truly the best.

Gene Policinski is a senior fellow for the First Amendment at the Freedom Forum. He can be reached at [email protected].

Kevin Goldberg is a First Amendment specialist for Freedom Forum. He can be reached at [email protected].

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