Recently, angry chiropractors and dentists have sued Yelp reviewers for defamation, loosely defined as “publicly telling mean lies that hurt more than feelings.” Apparently, no one takes the internet seriously, until all of a sudden someone does. Here’s what anyone who leaves comments online should know about defamation.

Defamation is:

• A false statement of fact
• About the plaintiff
• That is publicized to a third party
• Causes some injury to the plaintiff

Verbal defamation is slander; written defamation is libel. So a company sues you for libel, claiming that your Yelp review contained false, damaging information that dissuaded other Yelp users from doing business with it. What are your defenses? Here are two big ones.

Truth: Because defamation requires a false statement of fact, truth is an absolute defense to defamation. If your cable installer really did steal your gun and roll of quarters, you can shout it from the mountains. If Wendy’s didn’t actually put a finger in your chili, you’re in trouble. Note that unless you and your valuables are under constant video surveillance, it might be tricky to prove truth. You might instead try to argue that your statements were opinion.

Opinion vs. Fact: Defamation also requires a false statement of fact. If your review, complaint, or website is based on opinion or is unprovable, there’s no fact. Opinion will probably cover most of what you write in a review. For example, calling someone a “dumbass” is not defamatory, because it’s an unprovable statement of opinion. On the other hand you can’t just say “it is my opinion that everyone at the car dealership down the street practices bestiality.” A court will look to what you wrote and determine whether it’s opinion or fact. A court in 2005 held the following terms, to be opinion:

• Plaintiff “cleverly” interprets its standard automobile warranty contracts
• Plaintiff is a “blatantly dishonest company”
• Plaintiff is a “crooked company”
• Plaintiff has “been ripping off its contract holders for quite a while”
• The public has been a victim of plaintiffs “greed”
• Plaintiff has committed “fraud”
• Plaintiff “has been committing fraud on a grand scale”
• Plaintiff has been “running scams”

The court also noted:

[I]n the context of statements pertaining to issues of consumer advocacy, courts have been loathe to stifle someone’s criticism of goods or services . . . . The courts have recognized that personal opinion about goods and services are a matter of legitimate public concern and protected speech.

And good news for operators and hosts: If you run a website and someone posts a comment, review, or story that’s defamatory, you probably won’t be held liable, even if the content is defamatory. According to federal law: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” This law, and several state court decisions, mean that Yelp can’t be sued for a bad review, and that you can’t be sued for a comment someone leaves on your personal blog.

Companies file or threaten defamation suits as a way to suppress information they don’t like. They do it so often that the suits have a name: Strategic Lawsuit Against Public Participation. But you have the power to turn bad publicity into worse publicity. If a company threatens you for posting a bad review, post their threats. Send us any threats or cease and desist letters you receive. Chilling Effects keeps a database of these, so make sure you send it to them, too.

FURTHER READING:

Electronic Frontier Foundation’s Guide to Defamation
Some (slightly outdated) tips from Stanford’s Computer Science Education program
Chilling Effects, a site dedicated to protecting First Amendment and intellectual property rights online
Penn Warranty v. Digiovanni, 810 N.Y.S.2d 807 (N.Y. Sup. Ct. 2005), an easy-to-read New York case dismissing a defamation suit against the author of a “gripe site.”

(Photo: dagwood21)

This article is meant for educational purposes and is not legal advice.

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