We have all read online reviews for a restaurant to try, a hotel to stay in, a new place to visit. Whether it be Yelp, Trip Advisor, Google or even Facebook, these reviews can be the “make it or break it” in deciding whether to try something new. Nowadays, these reviews are a major factor—potentially the sole factor—in determining which restaurant to go to on the weekend or which hotel to stay at during a vacation or what new experience to try with family and friends. Some of these reviews can be long and passionate. Some even highlight the top “best” reviews and the top “worst” reviews. Some may include photographs, videos or even specific names of employees the customer interacted with. For instance, looking at a restaurant review online could potentially dictate exactly what an individual will order for dinner from a critic’s picture and description. Not only can these reviews heavily influence someone’s decision in trying something new (or not), but they can adversely affect the business of a restaurant, hotel, or other business entity with no opportunity for recourse. Negative online reviews, in particular, can cause people to avoid a certain restaurant or business entirely and even permanently tarnish a business entity’s reputation. One must wonder—when does an online review cross the line into a legally actionable defamation claim on part of the reviewed business?
To successfully prove a defamation claim in New Jersey, the following elements must be met: (1) the assertion of a false and defamatory statement concerning another; (2) the unprivileged publication of that statement to a third party; and (3) fault amounting at least to negligence by the publisher. The last element of fault can be established by showing that the speaker knew the statement to be false and that it defamed the plaintiff, or that the speaker acted with reckless disregard as to its truth or falsity. It must be established that the speaker made a defamatory statement of fact concerning the plaintiff, which fact was false, and which was communicated to a person or persons other than plaintiff.