How to Respond (or Not) to a Bad Review

• Date: 01 April 2024

Published i n Litigation New s Volume 49, Numbe r 3, Spring 2024 . © 2024 by the Ameri can Bar Asso ciation. Rep roduced with pe rmission. A ll rights rese rved. This inf ormation or any p ortion there of

may not be copied o r disseminated i n any form or by any means o r stored in an elec tronic databas e or retrieval system w ithout the expres s written consen t of the American Ba r Association .

How to Respond (or Not)

to a Bad Review

What should you do if you receive a bad online review? According

to 2Civilit y’s Mark Palmer, lawyers should consider ethical and prac-

tical pitfalls in deciding whether and how to respond. Palmer sees

three viable options: (1) Attempt to have the review removed—f‌irst

assess the review for appropriateness and adherence to the web-

site’s terms of service and determine if it was actually directed at

you. If the review is inappropriate or irrelevant, follow the website’s

protocol to f‌lag it for removal. Additionally, you may have success

politely requesting removal directly from the reviewer if they inad-

vertently posted it on the wrong business prof‌ile. (2) Disregard the review—even if you

determine the review is genuine, you may still decide to take no action. When contem-

plating your decision, Palmer advises considering various factors, including the potential

impact of the “Streisand eect,” as discussed in ABA Formal Opinion 496. Stemming

from Barbra Streisand’s lawsuit about a picture of her house, the Streisand eect de-

scribes inadvertently amplifying the visibility of something by trying to conceal or censor

it. (3) Provide a thoughtful response—keep in mind that a response that goes beyond a

simple apology or invitation to privately connect potentially risks disclosing conf‌idential

information in violation of professional conduct rules. Most ethical opinions, including

ABA Formal Opinion 496, prohibit revealing conf‌idential information to defend your rep-

utation or correct a negative reviewer, even in a public forum. Even a general statement

disputing the review’s accuracy may reveal that the lawyer was involved in the matter,

which could itself disclose conf‌idential information. Finally, Palmer cautions lawyers to

remember that “the primary audience for your response may not solely consist of former

clients but also prospective ones.”

Is That Retweet Legal?

In Prepare d Food Photos, Inc . v. Chicken Joe s, the U.S.

District Cour t for the Southern District of N ew York ad-

dressed whethe r a retweet can be copyright infringe ment.

In this case, the p lainti licensed a p hoto database to

grocery stores fo r an annual fee. Chicken Joe’s rep osted

one of the photos to its so cial media page, and the plain -

ti f‌iled suit. Coveri ng the

opinion for Technology &

Marketing Law Blog, Eric

Goldman bel ieved the issue

was already settl ed. Courts

have held both that retwe et-

ing does not infr inge the

original tweet b ecause it

simply creates a lin k to the

Malte Muelle r/fStop via Getty Imag es; Vitalii Kapin us/iStock/Gett y Images Plus via G etty Images

original tweet a nd that embedding images is n ot infringe-

ment. The Sou thern District of N ew York went the other

way, f‌inding that reposti ng on social media is s ucient to

f‌ind willful copyri ght infringeme nt. The court seemed to

focus on the fac ts that the restaura nt failed to appear or

answer and that it s response to the plain ti’s takedown

demand was an “ob scene tirade.” For Chicken Joe’s use

of a single photo from th e database, the court awarded

the plainti $24,0 00 in statutory damages an d its attor-

ney fees and cost s. Goldman ho pes the court would h ave

more carefully s crutinized the claim had Chicken Jo e’s ap-

peared, but h e notes this “crazy” o utcome paves the way

for prof‌itable , high volume, and un meritorious copyright

enforcements i f courts do not pus h back on the legal the-

ory that retweeti ng is copyright infring ement.

SPRING 20 24 • VOL. 49 NO. 3

18 | ABA LITIGATION SECTIO N

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