Negative reviews on official review channels like Google or Yelp or negative postings on social media are a fact of life for many businesses today. We talked with lawyers from Friedman, Framme & Thrush, P.A. to understand what business owners can and should do when faced with a negative public complaint that is impacting their business.
When to send a cease and desist letter
A cease and desist letter is a legal document that is used in many cases to literally tell a party to stop doing whatever they are doing that may be damaging to your business. Situations for using for a cease and desist letter may include:
Read more about protecting your intellectual property here.
Many lawyers will prepare this letter for you for a charge of a few hours of time to understand your issue and to prepare and send the letter. Depending on the lawyer and where your business is based, this can range from $500-$1,000 per letter.
To issue a letter, you must have the full legal name and address of the person you want to stop doing whatever it is that is potentially harming your business. This can be a challenge online when many people use screen names or pseudonyms.
Using this type of letter can be more successful if another business is potentially infringing on your business copyright as typically, basic business information such as an address is public knowledge or can be found on a business website. Similarly, if you have a breach of contract, hopefully you have the contact information of the person you entered into a contract with, and they would be able to receive a cease and desist letter.
Cease and desist letters in and of themselves are not legally enforceable. They are the first step towards potential legal action and can be used as a notice of future legal action. Sometimes these letters can encourage someone into compliance over the fear of being sued. Not everyone responds the same way however, and some people instead may be emboldened and not comply with letter while others may even engage more forcefully in their efforts. If you choose to go this route and send a formal cease and desist, make sure you are prepared to follow through with a legal suit.
What comes after a cease and desist letter?
It is illegal to say verbally (slander or defamation) or to write/print (libel) things about another person or a business that are not true or that could negatively impact their ability to do business. If a cease and desist letter does not stop someone from saying/printing things about you or your business, your next step could be to pursue a court enforceable cease and desist order or a civil suit.
You may have a legal case against someone if you have:
- Documented and proven lost business due to something they said or printed about your business; and
- If that person made false statements.
It is important to note that under the first amendment, people are allowed to share their opinions about you and/or your business whenever they wish. Negative reviews are generally regarded by judges as opinions and as such are not false statements from a legal perspective, they are protected speech under the first amendment. Saying specific false accusations would be illegal. Understanding the fine line difference between opinion and fact in online reviews and social media posts is very challenging to prove in a court of law.
What should you do?
The lawyers we talked to were very careful to say that every situation is different, and every individual and business must way their options carefully when getting legal help for any issue.
Some questions to consider in your situation include:
- Cost to litigate – it can cost thousands of dollars to prepare and execute a suit. Is that cost more or less than the cost of lost business?
- Public benefit – will doing a suit show your business in a better light or a worse light from a publicity perspective?
- Cost to collect – even if you have a solid case and win the case, can you collect damages (i.e., does that person have the money to pay your business)?
- Correct contact information – Do you have the contact information to serve legal paperwork to someone (legal name and address)?
Take all this information into account when presented with a challenging situation online and make the decision that is best for your business. If you decide to move forward, engage with a lawyer that has expertise in the type of issue you need help with such as copyright or defamation.