The Internet and smartphone apps often seem like a wide-open forum for consumers to provide opinions on businesses, restaurants, and services. Through Facebook, Google, Yelp, and other review services, consumers speak their minds about all kinds of services and goods.
As reviews become more plentiful, however, so do disputes regarding same. Where the reviews reach the level that crosses the line into defamation, an increasing number of these cases turn into lawsuits.
What is Defamation?
In Florida, defamation encompasses both libel and slander. Slander is ordinarily confined to defamatory spoken words, whereas libel pertains to defamatory written statements. Both are considered “defamation.”
Although the line between what is and what is not legal “defamation” often seems blurred, generally, publishing a false statement about a person or business while damaging his or its reputation is considered defamation. By way of example, saying a steak was way too rare or that a restaurant’s fries are too soggy is generally stating a pure opinion, and in most cases not defamation. Falsely stating, however, that a pair of cockroaches wrestled in your mashed potatoes or that a business owner used your credit card for his personal shopping needs without your permission might cross the line into constituting defamation.
“Anonymous” is not always anonymous
Many online reviewers feel safe and protected because their names are not published with the reviews. However, anonymity can be a false sense of security, as the mask of anonymity can in some cases be lifted. For example, in one recent Massachusetts case against an anonymous “John Doe” reviewer, Yelp, on receipt of a subpoena, agreed to turn over information identifying a user who posted comments that one business thought was defamatory. This case is not unique; many other cases require Internet companies to turn over identifying information of reviewers.
But what about “pure opinion”?
“Pure opinion” is a defense to defamation. However, it needs to be raised in court and sometimes it is an issue for a jury to determine. Where the line between opinion and fact is too blurry, the issue can be complicated.
For example, in a recent Southern District of Florida case, Dibble v. Avrich, a former customer of a transportation service complained about that company on a website. In response, the representative of the company, complained about the customer, calling him, among other things, a “low class redneck pig excrement, redneck ***hole, PATHETIC, LOWCLASS, INBRED REDNECK SCUMBAG, venom-spewing, mud-sucking, LOW–CLASS REDNECK, REDNECK LOSERS, SON OF A B***, SCUMBAG . . .” and a “low-class, inbred, half-witted, redneck, idiot, horse’s ***, bully, CHEAPSKATE AND ***HOLE, venom-spewing, mud-sucking clown, NON–CUSTOMER, pig-farmer, miserable redneck loser, ****** ******* yo-yo, son of a bitch, SCUMBAG *******” (with certain words redacted). The customer then sued the company representatives for defamation.
The Defendants moved to dismiss the case, arguing that the offending statements were “nothing more than rhetorical name-calling or expressions of opinion which cannot be construed as statements of fact.” The court explained that, while part of the verbiage “may turn out to be a case about literal name calling,” the words “also contain statements about Plaintiff’s intelligence, class, ancestry, and business-relevant qualities.” The Court said it therefore could not conclude that the comments were mere rhetoric and not defamatory.
In denying the motion to dismiss, District Court Judge Beth Bloom explained:
In our age of anonymous internet trolls and the often-uninformed echo-chamber of the blogosphere, maybe no reasonable reader would take Defendant’s statements as asserting facts rather than just one more outspewing of thoughtless rhetoric. But the Court is not willing to say, as a matter of law, that Defendant’s insults are incapable of being interpreted as false facts. Visitors of [the review website] may understand Defendant to be stating that Plaintiff is in fact inbred, or not a real person, or, at the very least, someone you wouldn’t want to do business with.
The Complaint fairly and plausibly alleges as much. Whether it is true requires the Court to consider a factual context for the parties to address and develop in discovery. Plaintiff’s allegations of defamation will survive Defendant’s Motion to Dismiss.
Dibble v. Avrich, 14-CIV-61264, 2014 WL 5305468, at *4 (S.D. Fla. Oct. 14, 2014)
By way of another example, the Yelp case mentioned above involved a woman who posted statements about a jewelry store on Yelp. The business owner alleged that she complained that the company had sold her overpriced jewelry then “scammed her” and did not provide sufficient value when she returned it. According to an article in Tech Times, the store alleges that it has no recollection of the woman or any of the transactions she spoke about in her Yelp reviews. It said is not a pawnshop and does not even buy back jewelry. As of now, the case continues, and no final determination as to whether the reviews are legally defamatory has been entered.
In many cases, as to what is opinion is a question for a jury, which means that the case will continue, throughout the discovery process, for potentially years before a resolution is reached. In such cases, both parties — Plaintiffs and Defendants — end up spending mounds of money, and, many times, regardless of the outcome, neither party really comes out a winner.
Lesson to consumers: Be careful writing online reviews
First, realize that reviewers are not always necessarily anonymous, even when they think they are. Yelp is not alone. Many companies can be forced to surrender user information if they receive a court order compelling them to do so. Thus, no one should ever assume that he or she is free to say whatever he or she wants online, due to anonymity. However, the instances in which businesses sue people for posting comments online are not widely prevalent.
Consumers should not be fearful of posting honest and respectful reviews of businesses in good faith. The key words, however, are “honest” — and “good faith.” Internet users should just be certain that what they are posting is either an opinion or a true fact, to the best of their ability. Regardless, even when a review is “honest,” if the review is damaging, many times a business will sue anyway. If a defense of “truth,” is raised in court, it must be coupled with good faith. Secondly, when an opinion borders on defamation, it is a wiser idea to just not include that opinion or risk defending an expensive lawsuit.
Lesson to businesses: Act promptly
Businesses likewise should not be afraid of protecting their valuable reputation, as many who use online review sites to extract revenge or gain leverage over business they feel have wronged them. Businesses can first try to work things out with the reviewer. However, if that does not work, if the review really does constitute legal defamation, litigation may be an option.
Questions or need help?
If you feel you have been the victim of defamation (libel or slander) and want to take legal steps, to protect your valuable reputation, contact the Law Offices of Cynthia Conlin, P.A. today at 407-965-5519 for a free consultation.