Hastings Communications and Entertainment Law Journal


Jenna Morton


Online reviews exert a powerful influence of consumers, who rely on the reviews to choose restaurants, barbers, doctors, and many other businesses. Businesses also rely on the reviews as an important form of advertisement. False reviews thus harm both businesses and consumers. Businesses that are harmed by false online reviews can bring a defamation action against the reviewer. However, the current legal standard is unclear as applied to businesses, as it looks to whether an individual is a "public figure." This note weighs the costs and benefits of three possible legal standards for businesses bringing defamation actions: (1) a bright line standard that requires all businesses to prove that a statement was made with actual maliceknowledge or reckless disregard for their falsity, or (2) a retroactive balancing test that weighs all factors to determine whether the business is a "public figure," and (3) the option recommended by this note: a compromise that requires businesses to prove actual malice if they advertise online, but makes recovery easier for small businesses with no online presence.