Freedom of speech on the Internet is still new territory for judicial systems, and courts the world over are responding to conflicts in very different ways.
Last week, a French judge ruled against and fined blogger Caroline Doudet because her scathing restaurant review was too prominent in Google search results and had been hurting the restaurant’s business, Eater reports. Doudet was ordered to change the title of her review so it would be buried under other Google search results.
The decision comes not long after the European Court of Justice’s May ruling that individuals have a “right to be forgotten,” inundating Google with requests from individuals who want webpages removed from Google’s search results.
Businesses suing individuals for defamation in negative reviews is becoming more common, including in the United States. The popularity of sites like Yelp has given consumers the opportunity to air their complaints or praises globally, but has also increased the likelihood of unfairly damaging a business’ reputation.
In Doudet’s case, she was ordered to pay €2,500 ($3,382) in fines and costs for writing a negative review last August of Il Giardino, an Italian restaurant located in Cap-Ferret, France. The headline read (in French): “The Place to Avoid in Cap-Ferret: Il Giardino.”
Doudet criticized the food but also the service and employees, allowing the restaurant’s legal team to claim that the article was “more of an insult” than a critical review. The review has since been removed from her site.
New businesses have formed to deal with individuals and businesses’ online reputations, by flooding search engines with links of flattering information and reviews so the negative links get banished to the third page of Google results, a (costly) option Il Giardino could have taken under a system with less-strict online privacy and defamation laws than France.
But some First Amendment lawyers consider lawsuits against amateur reviewers a fight against public participation and an effort to intimidate critics who will back down when faced with a legal battle.
Still, the right to free speech is appropriately limited by laws against libel and defamation and the courts are currently assessing how to find the balance.
A 2012 ruling by the Virginia Supreme Court may be an appropriate compromise. In the case, a woman was unhappy with her home contractor and wrote reviews on Yelp and Angie’s List explaining his poor work and suggesting that he may have stolen her jewelry. The contractor filed a defamation suit and got a judge to order the woman to re-write her review.
In an important victory for freedom of speech on the Internet, the Virginia Supreme Court reversed the decision against censoring reviews and ruled that possibly defamatory comments cannot be taken offline until they are proven defamatory. Additionally, under federal law websites like Yelp and Angie’s List are shielded from defamation lawsuits, but the writers are rightly and legally responsible for what they write, and lawsuits can be filed against them.
What it means to have privacy and freedom of speech is increasingly unclear when search engine results can be manipulated and unflattering reviews can be removed, while at the same time, everyone is a critic online and data and screen shots can live forever.
The challenge is in the shadows of the Internet; libel laws must be enforced, while freedom of speech must be maintained.
