Food for Thought
When Consumer Reviews Go Too Far: Threats, Lies and Videotape
With the rise of the Internet came the ability to post personal experiences — a way for consumers to warn others about restaurants that didn’t provide a meal that was worth the dollars spent. It started with local websites (in the Houston area, the long-gone B-4-U-Eat was an early resource) but it wasn’t too long before national websites started capitalizing on the trend. These days, Yelp, Facebook, Google and even You Tube all facilitate consumer reviews — and restaurants can thrive or die based on the commentary and ratings.
Then there’s Instagram. It may have started as a photo- and video-sharing platform, but it’s a significant vehicle for opinions, too. In fact, it’s led to the rise of a veritable cottage industry based often not on food knowledge but on the perceived attractiveness of the Instagrammer. These days, social media “stars” work to convince restaurant owners to feed them for free (and even pay a fee) for the privilege of a visit, a short but fawning public post and some good pictures. Welcome to the new social media economy.
In other words, restaurant reviews have been democratized and a great deal of power transferred from newspaper critics to consumers. What could be bad about handing authority from a handful of elites to the masses?
Consumer reviews are inarguably beneficial, giving an overall consensus as to whether a restaurant is worth visiting and what the popular dishes are. The problem is when a consumer review is egotistical, unfair, bullying or just flat-out incorrect — and according to many restaurant owners we interviewed, that’s a frequent situation. In extreme instances, businesses can, in fact, sue online reviewers for defamation. It’s still exceedingly rare — but can and does happen.
Defamation is a legal term which includes both written (libel) and spoken (slander) forms of speech that hurt or diminish someone’s reputation or character. While defamation isn’t a crime, it is a tort (a wrongful act or infringement of a right that leads to civil liability), and is therefore considered a civil wrong rather than a criminal one. In other words, if an online reviewer is sued for defamation, that person won’t see the inside of a jail, but it may cost some money.
In order for a victim of a false review to establish defamation, they have to prove that the statement passes four legal tests: it was published, false, injurious, and unprivileged.
There are many qualifiers for privileged speech, including anything said in a deposition or court proceeding, statements made by government officials, conversations between spouses or with your doctor or lawyer, or statements made by a former employee to a potential employer. So, online restaurant reviews do not qualify as privileged, which makes the road to filing a defamation suit easier for a restaurant owner.
However, if a reviewer can prove that a statement is one of opinion (as opposed to asserting incorrect facts), is true, or if he or she merely retracts it, a lawsuit can be avoided.
In December 2018, a South Carolina restaurant, Buoys on the Boulevard in North Myrtle Beach, sued a customer for libel when she posted a false review. It happened after the restaurant, which had changed ownership in March 2018, refused to honor a coupon issued under the previous owners. The customer claimed she found a worm in her sushi, but the restaurant owners asserted no food was actually made for the customer — and had video to prove it. The customer posted the falsified review even though the restaurant comped drinks and directed her to a different location that would accept the coupon.
Similar lawsuits have been filed in the UK and Israel, as well as by other types of businesses that provide consumer services. In a twist on the fake review scenario, Yelp once sued a San Diego law firm for beefing up its reputation by posting “reviews” from nonexistent clients.
Even acclaimed chefs can get into hot water over their online commentaries. This past Saturday, Cat Cora, the first female “Iron Chef” on Food Network’s “Iron Chef America,” posted harsh written criticism on Instagram of the Michelin-starred Chicago restaurant Alinea. Cora claimed that she had a reservation for the evening that was confirmed via email but that general manager Devin McKinney “nonchalantly said they had made a mistake.” She characterized the interaction as “arrogant” and “disrespectful.”
Unfortunately for Cora, Alinea keeps very detailed notes regarding guests and reservations and has a robust system for keeping those organized. In a detailed article on Medium, co-owner Nick Kokonas refuted Cora’s Instagram post. He claimed that Cora’s assistant had initially requested a reservation for 7 to 7:30 pm on Saturday with Alinea. The restaurant was fully booked so a counter offer was made for 5 pm on Friday in their Gallery room. The reservation was confirmed for the Friday reservation and even paid for by Cora’s assistant.
In addition to claiming that Cora demanded the restaurant roll a table into the kitchen and then made an obscene gesture at McKinney before storming out when refused, Kokonas also stated that Alinea sends at least three emails prior to any reservation to inquire about dietary restrictions or other special arrangements that need to be made for a guest. Cora has since removed her Instagram post, writing instead that she was frustrated by the encounter and merely wanted to “start a conversation about what hospitality means.”
What people post online about businesses can have serious consequences, even if they are merely commenting on someone else’s fake review or “trolling”. Take, for example, the story of Thomas Tang, owner of the Houston location of ramen restaurant Samurai Noodle. Recently, he dealt with a Facebook reviewer who claimed she didn’t get the table she wanted, that the area near the bathrooms smelled of feces and more. The reviewer also claimed that her party waited for over 15 minutes for waters. The problem is that the dining room was outfitted with a camera and the video evidence belied the reviewer’s claim.
Tang quickly reviewed the video footage from the evening and general time frame and found that the customer had misquoted her arrival time by over an hour. Additionally, the tape showed that she and her guest left the restaurant in under 10 minutes, which would make it impossible for them to have waited over 15 minutes for water.
Tang responded to the initial review and apologized. He also took the opportunity to refute the information for the sake of his staff. “I knew that our waiters felt really bad about the review. Most of the time I tell them to brush it off and ‘take one for the team’. But because we had video proof and it wasn’t a they-said-versus-we-said situation, I felt I had to set the record straight,” Tang said.
Tang said that after his response, the customer recruited her friends to post additional bad reviews on Samurai Noodle’s Facebook page. It is important to note that the hardest legal test a business must pass to claim defamation is proving that the reviewer intended to do the business harm. In having her friends publish fake bad reviews, the consumer made that task easy for Samurai Noodle.
Ultimately, she took down her review. However, there are still reviews up from her friends which she commented on. So, potentially the consumer has still left herself open to a lawsuit.
In a case of mistaken identity, a consumer wrote a scathing review about Christie’s Seafood and Steaks’ prime rib. The problem was that the restaurant hasn’t served it in many years. It was only after owner Maria Christie’s contacted the customer directly that it became obvious that the reviewer was in Florida and thought he was posting about an entirely different restaurant in his home state.
Believe it or not, consumer review websites allow people to post reviews for restaurants that aren’t even open yet. Ara Malekian of Harlem Road Texas BBQ says he received a one-star review five months before the restaurant was open.
On Yelp, a further complication for business owners is the company’s practice of obscuring good consumer reviews. “We have 27 five-star reviews [Yelp] hides,” says Scott Moore of Tejas Chocolate + Barbecue in Tomball. Those can be found only if a website visitor goes to the Not Currently Recommended section at the bottom of the page. Interestingly, those are now sorted from the lowest to the highest, meaning that anyone who goes to that section sees all the bad reviews first before getting to the good ones.
Sometimes, other business owners take advantage of review websites to drive down a competitor’s rating. Shannen Tune, chef and owner of Craft Burger inside Finn Hall and a 2016 winner of Chopped, said that happened to him more than once. “They didn’t even try to hide it. They used their personal profiles,” he said. Tune eventually took legal action towards the competitor and a condition of the settlement was that he can’t disclose their identities, but the fact that some would take competition to that extreme is disturbing.
Tune also points out that now, there’s no guarantee that online reviews were even written by actual humans. “I get random reviews — both positive and negative — from bots that review 70 different places all over Texas in the span of 20 minutes,” he said. News organizations have reported for years that this was coming. In August 2017, for example, Yahoo News reported that researchers at the University of Chicago used AI robots to develop software that write very believable fake online reviews. That technology is now out in the wild and in use.
With all of the kinds of fraud that goes on in online reviews, it’s a wonder that restaurant owners aren’t filing more lawsuits against those who aim to fraudulently ruin their reputations. There are reasons for that, though. Lawyers are expensive and publicly defending one’s business is viewed as a losing battle. (There’s even a lawyer who wrote an article for Forbes where “buying off” the negative reviewer is proposed as a viable, albeit distasteful, strategy.)
For these reasons and others, some industry professionals believe that any response other than a simple and sincere apology is a bad move for the business. Sean Beck, wine director for Tracy Vaught and husband Hugo Ortega’s restaurants, believes most bad reviews are born from bad perceptions and feelings rather than true malicious intent. “Do restaurants get criticisms that we think are unfair or inaccurate? Absolutely! However, as a restaurant, you always lose when you choose to attack guests in response. It doesn’t matter if you are right, because the story is no longer about what happened, but about how you chose to respond to the complaint. Not to mention you must prove they intentionally set out to harm you and your business, which is almost never the case. Most often they were simply upset about what happened and possibly mistaken to a degree,” Beck said.
Restaurants are legendary for their high-stress environments, and while no one is claiming that someone died due to a bad Yelp review, the stressors of the industry all add up. The “customer is always right” culture and being criticized every single shift can become too much for many workers. In 2003, acclaimed French chef Bernard Loiseau died by suicide when a newspaper report merely hinted that his restaurant might lose its three-star Michelin guide status. The Michelin guide was later accused of covering up their involvement in the death stating that they never threatened to remove the stars from Le Relais Bernard Loiseau. In April 2015, chef Homaro Cantu of Chicago’s Michelin-starred Moto, also died by suicide, followed in February 2016 by Benoit Violier of Le Restaurant de l’Hôtel de Ville. In both of the latter cases, it was speculated that their actions were due to work-related stress.
A 2016 survey of more than 2,000 restaurant employees by the nonprofit Chefs with Issues found that 73 percent of workers reported suffering from multiple mental health conditions. The year before that, a study from the Substances Abuse and Mental Health Services Administration reported that food service employees had the highest rates of drug use compared to 18 other professions.
These facts beg the question: what is the real cost of dealing with vengeful people on a day-to-day basis?
There are, of course, conscientious consumer reviewers and Instagrammers who are more driven by showing off good restaurants rather than punishing ones they didn’t like. Clearly, though, some have a dark side and are driven by bad motives. Many have no qualms about wielding their destructive power without a thought as to the enduring harm that can be done to a business or its employees.
While Texas and many other states have anti-SLAPP (Strategic Lawsuit Against Public Participation) statutes that protect citizens against retaliation for their online reviews and de-incentivizes companies from suing for defamation, professional restaurant reviewers are nevertheless expected to adhere to a set of journalism ethics. They can get into trouble, lose their jobs or, yes, be sued for presenting incorrect information. Lying consumers, however, suffer no repercussions unless they actually do get slapped with a defamation lawsuit.
With the rise and importance of consumer reviews, restaurant dining experiences are now less about the food and more how special someone feels, or doesn’t feel, upon leaving.
With that in mind, restaurateurs are retooling their businesses to try and provide those special experiences. It’s not a coincidence that many newer establishments now sport an “Instagram wall.” These days, success hinges as much on successfully navigating — better still, avoiding — the field of online review landmines as it does serving great food.