Yelping About Bad Publicity

Law

So a ton of people have emailed or tweeted me this Washington Post story about a contractor suing a homeowner over a bad review on Yelp. It's been covered elsewhere, so I just want to make a few comments about it:

1. I agree with Brian Wolfman that the article's claim that such suits are "growing" appears to be part of the growing trend of unsubstantiated trend-story ass-ertions.

2. I've talked before about lawsuit threats against online reviewers that appear clearly malicious and frivolous, in that they target opinion or fail to specify what facts are allegedly misstated. The suit at the core of this article appears distinguishable: the plaintiff specifies particular damaging factual statements, not opinions or characterizations, that are false — for instance, that the business invoiced the defendant for work not performed, or that the business stole jewelry. Perhaps ultimately the plaintiff will not be able to prove that these were false statements, or that they damaged his reputation, or that the defendant had the requisite mental state — but at least the plaintiff has alleged particular false statements of fact.

One of the early inquiries in a defamation case is whether the complaint cites statements that are susceptible to defamatory meaning — that is, whether the plaintiff is suing based on alleged false statements of fact, on the one hand, or opinions, characterizations, rhetoric, or hyperbole, on the other hand. Non-frivolous complaints by competent lawyers carefully lay out specific false factual statements with sufficient context to show that the statements are not mere opinion or bluster. Courts will look to context to determine whether a statement is one of fact (and thus, potentially, defamatory) or one of opinion or mere rhetoric (and thus not susceptible to defamatory meaning). Traditionally courts have said that in the context of political debates and discussions of litigation, statements are more likely to be interpreted as being opinion or rhetoric, because reasonable readers are more likely to interpret the speech that way instead as an assertion of provable fact. Increasingly, courts say the same thing about expression on the internet — that reasonable people are more likely to interpret online speech as part of the rough-and-tumble of casual online hyperbole, and not as a statement of provable fact. However, even in the internet context, some statements are plainly of fact. If you claim a company performed shoddy work, that's probably opinion, but if you claim a company invoiced you for work not performed, that's quite likely a statement of fact.

3. Virginia doesn't have an anti-SLAPP statute. If it had a decent one, the defendant in this case could have forced the plaintiff to come forward and present admissible evidence supporting his claims — in other words, submit declarations and exhibits which, if believed, would show that the defendant made false statements of fact. In a case like this that already turns on specified statements of fact, it's not clear how much that would have helped the defendant.

4. The judge in the case recently issued a preliminary injunction requiring the defendant to take some expression down, and forbidding her from repeating other expression. On the one hand, the coverage suggests that the injunction is rather narrowly tailored — it seems to apply only to expression the judge found was false, like accusations of theft of jewelry and an apparently false suggestion that a prior court ruled against the contractor on the merits of his bill. On the other hand, preliminary injunctions against defamation are traditionally strongly disfavored, and I wonder what in this case possibly justified one, even if the injunction is not as egregious as the one in the Raanan Katz matter. Moreover, I found it remarkable that the plaintiff's motion for a preliminary injunction had no discussion whatsoever of the First Amendment issues or the traditionally tougher standard for defamation injunctions.

5. Despite the plaintiff's successes to date, suing over a negative comment is still very risky. This company's search engine profile will likely be dominated by results for this case.

Last 5 posts by Ken White

34 Comments

32 Comments

  1. HollyB  •  Dec 6, 2012 @8:41 am

    These places like Yelp, Ripoff Report and Cyberbully (dot) com MAY have started off with good intentions, but they have basically become a repository for anyone with a grudge. You can simply log onto them, post pretty much any defamatory statement you want to, hit submit and the deed is done. And if you're the one the defamatory statements have been made about, don't even bother appealing to the web owner's sense.. they simply will not take such lies down. I know this from experience. And if you get a reply at all, it may go something along the lines of "Oh my what a great injustice that has been perpetrated on you. Perhaps you should appeal to the Queen herself."
    The laws have to keep up with the times in regards to such things. They seem to be trying.. just not hard enough.

  2. David Aubke  •  Dec 6, 2012 @9:23 am

    @HollyB,
    I agree with your assessment of review sites. I'm thinking that by now, most agree with you and apply this knowledge as a filter when reading those sites. People that take the time to write a review are much more often motivated by anger than a sense of satisfaction with the service being reviewed.

  3. tsrblke  •  Dec 6, 2012 @9:48 am

    @David, HollyB,

    I tend to skim the sites for trends, rather than actual reviews. So if I see a series of reviews that say something like "Hotel Room not clean" or "Contractor was slow to finish work." Then I have a general idea of what I'm getting into.
    Of course any site is also just a snapshot in time. So I recently found a tree trimmer on Angie's list. Good reviews, so I schedule a trimming of some trees and a removal of another. It took 6 phone calls and 6-8 weeks to complete the stump grinding (thankfully I hadn't paid and refused to pay until the job was complete.) I was totally perplexed, but when I looked back at the reviews I noticed in the intervening time between my looking the first time, scheduling and going through the miserable process, numerous people had the same complaint.
    (Furthermore, Angie's list has a sort of mediation service, but one of the requirements of the mediation service is that if they fix whatever your complaint was you give them a rating of no less than a B afterwards, and the original review is deleted, so this could have been an ongoing concern that Angie's list mediated several times masking the issue.)

  4. NM  •  Dec 6, 2012 @10:28 am

    @HollyB. I disagree. Yelp claims (and my experience suggest the same) that 80% of reviews are 3 stars or more (they used to have a breakdown and they had a lot of 4-5 star reviews). In many cases, the reviews are too positive rather than too negative.
    While there are false reviews, most negative reviews seem to generally be based on terrible experiences.

  5. Bren  •  Dec 6, 2012 @11:15 am

    Most negative Yelp reviews can be ignored or dealt with in context as the other comments suggested. But making false allegations somebody tried to defraud you with an invoice and stole stuff? That seems both provably wrong and sufficiently damaging. Sometimes it's really hard, as a yelp reader, to tell whether the reviewer or the reviewee is the crazy one. I'm willing to risk 6 (or even 7!) phone calls, but I think most people would steer clear altogether of fraud and theft.

  6. delurking  •  Dec 6, 2012 @11:45 am

    "ass-ertions"

    The subtlety, the brilliance; I swoon.

  7. Mike  •  Dec 6, 2012 @1:56 pm

    I'm going to drift away from the legal aspects and go to what I know. In my opinion that it's all the contractor's fault.

    I've done a lot of residential remodeling. Reading the article I saw several things that an experienced contractor should have noticed.

    From the article: "retired captain in the armed services…" Navy? Army? The fact the article says retired captain in the armed services in the WP instead of mentioning the service branch makes me very curious. There are several good and honorable ways to retire as a captain in the Army, there are also a few less than awesome ways to retire as a captain in the Army. Navy captain? All's good.

    Again: "a high school friend…" That is a situation that can be a problem for the most mature customers and contractors. I will only work for a small subset of my friends. The homeowner/contractor relationship can screw up all but the best friendships.

    Also: "the townhouse, where she lives with her dog…” We all have our preferred client types and let me tell you what is at the bottom of my list, the spinster. I know it is considered a pejorative term, but I don't know of a better word. If you go to that wikipedia page and look at the list of famous spinsters, do you see any that you would want to work for? Married women? Fine. Divorced or widowed? Fine. Lesbian couples? Fine. Spinster? It is a problem job before the contract is signed.

    When it comes to web reviews on sites like Angie's List, here is what I find to be unreasonable: an individual can post something bad about my services, but to address the complaint on Angie's List, I have to pay a fee to join before I can comment back. Doesn't seem right.

  8. W. C. Taqiyya  •  Dec 6, 2012 @2:08 pm

    This post at first seemed almost frivolous. But, it has some interesting aspects. I'm interested in this internet review process in that it occurs after the fact. That is, after the work is done and the bill is paid. If that is correct, I wonder why those who had been wronged by shoddy or incomplete work paid the contractor? Next, I wonder why, if so wronged, they didn't avail themselves of the existing legal remedies? In other words, small claims court or whatever. Most states, I think, have a fairly well oiled system in place to handle these kinds of minor disputes. Which are, after all, fairly common. Small filing fees, easy forms and self representation being the rule. Sure, I appreciate the urge to blow off steam and vent. That's fine. But, if that venting is specific enough and factual enough, as explained by Ken, it can be actionable. And that costs time, money and judicial resources. I think I would prefer to nip this stuff in the bud, but can think of no single mechanism to do so. I say that because this 'after the fact' complaining seems to defeat the public policy purposes behind laches and related estoppel doctrines. In other words, if you sit on your right to complain through normal channels in the allotted time, you are blocked from bringing it up later. IMO, it's mostly a sound doctrine.
    So, should there be a way to block this form of complaining? I suspect, from the perspective of what passes for the 'legal' community these days, that many lawyers will love these new lawsuit creating review sites. As a result, I'm not optimistic it will be closed down. Failing that, I guess I can hope the courts may at least establish a very high threshold before such suits are accepted. Maybe a combination of qualified immunity for internet speech, a disclaimer from the review site and a proof hearing to pierce the immunity and gain permission to file for defamation or the like? Interested in hearing some wise suggestions.

  9. Mike  •  Dec 6, 2012 @2:10 pm

    I'm wondering about such frivolous lawsuits. If they are obviously frivolous, can you get by without getting a lawyer? What are the downsides? The biggest that comes to mind is that the judge is an asshole and allows the lawsuit to go forward and you are then subject to discovery. I can't imagine that the homeowner could lose this case, but under what circumstances might that be possible? Is there anything else I should know about? I don't know if you have already done a post on this, but if not I'd love to see one.

  10. Ken  •  Dec 6, 2012 @2:24 pm

    This post at first seemed almost frivolous.

    Charisma is your dump stat, isn't it?

  11. W. C. Taqiyya  •  Dec 6, 2012 @2:53 pm

    Ken, I'm old and 'dump stat' is one of those new modern terms I'm not familiar with. But, thank you. Charisma may be laying it on thick, but modesty prevents me from correcting you.

    In return, hello back and you are welcome for my thoughtful comment above. I'm not sure if it helped, but if it did, you are also welcome to the attention I stirred up over yonder. From all the noise, it sounds like those other guys (some of whom are not as open to opposing viewpoints as you) will be busy over there for quite some time. Which means we can enjoy the peace and quiet here for a bit, where calmer readers prevail.

    For example, Mike asks a very good question. IMHO. Frivolous lawsuits are supposed to be kicked out of the system quickly, there are mechanisms and rules for that. And yet, they don't seem to always work so well. If they did, this whole issue would be a non-issue, no? Thanks to Mike, I changed my mind. Shouldn't we just do the simple thing and tighten up the frivolous procedures? Or not?

  12. Joe Pullen  •  Dec 6, 2012 @3:00 pm

    I find opposing viewpoints mildly intriguing but much more tasty when liberally sprinkled with facts.

  13. Andy  •  Dec 6, 2012 @3:16 pm

    Dump stat? A term I haven't heard in a long time. Thank you for allowing me to reminisce over my many hours of geekery at a kitchen table with a big bag of dice Mr White.

  14. Grifter  •  Dec 6, 2012 @4:07 pm

    @W.C.:

    Dump stat has been around since, what, the 70s? It's not an age thing, it's an interest thing. Regardless, you may want to look up what it means…

  15. wgering  •  Dec 6, 2012 @5:27 pm

    Charisma is your dump stat, isn't it?

    I damn near choked to death on my tea when I read that. I think I'll have to start using that in conversation now.

  16. Joe Pullen  •  Dec 6, 2012 @5:52 pm

    You should never make charisma your dump stat.

    Put all of you ranks in diplomacy. Win at everything.

  17. Josh C  •  Dec 6, 2012 @5:55 pm

    I'm relatively new here myself, but I read back pretty far.

    Am I confused, or is that a tonne of new posters up top?

    http://xkcd.com/1019/ seems relevant,

  18. different Jess  •  Dec 6, 2012 @7:38 pm

    This company's search engine profile will likely be dominated by results for this case.

    Let's get this party started! Surely Christopher Dietz of Dietz Development, LLC won't file a frivolous suit against Popehat or its commenters in reference to another allegedly frivolous suit he filed against his customer in response to an online complaint about his allegedly shoddy and substandard work.

  19. Ken  •  Dec 6, 2012 @7:56 pm

    The thing is, different Jess, I don't know that the suit is frivolous. It might be tactically a bad choice, but it appears to complain about at least some actual false statements. If it's true — if the statements were deliberately false — it's not frivolous. It has merit.

    At the very least, it appears from the undisputed facts that the defendant mischaracterized the earlier court ruling, making it sound like a ruling on the merits rather than a default. But perhaps she's just stupid.

  20. different Jess  •  Dec 6, 2012 @8:25 pm

    You're right of course, Ken. Perez doesn't strike me as especially reliable, particularly given no branch of the "armed services" seems to claim her. All Google reveals about "Captain Jane Perez" is this lawsuit.

    A question cutting the other way: a lawsuit over not being paid for work one has completed would be less… novel than one for Yelp defamation. Although I've never been on the wrong end of one of these complaints, I have been pretty meticulous about obtaining signed lien waivers upon payment, because I'm told by everyone that contractors receive a very favorable hearing for them in court. Why don't we see anything about a mechanic's lien here?

  21. different Jess  •  Dec 6, 2012 @8:36 pm

    I had to roll my eye at this howler from the end of one of the WP articles:

    Berlik, the lawyer, has a few words of advice for those who want to avoid similar lawsuits: Stick to opinion and “tell the truth, and you won’t get into trouble.”

    This seems both untrue, and bad advice.

  22. Kevin  •  Dec 7, 2012 @12:34 am

    @Ken

    Charisma is your dump stat, isn't it?

    Before this moment, I didn't realize that it was possible for a former deacon/federal prosecutor to be this damn awesome. I'm now considering committing a federal crime just for an excuse to hire you.

  23. Jess  •  Dec 7, 2012 @6:02 am

    @Mike. You’ve left one archetype of your list of who you would work for as a contractor – single women.

  24. Mike  •  Dec 7, 2012 @7:22 am

    Jess,

    At some age that is ill defined, a single woman becomes a spinster. Good remodeling clients, for the most part, are in their 50's and older. I think the woman that has never been in a committed relationship who has hit 50 can be called a spinster.

    I have yet to meet a single woman in her 20's or 30's that is a good prospect for a remodeling contractor. But if I did meet one, I would likely consider the work.

  25. Jess  •  Dec 7, 2012 @11:13 am

    @Mike well I’m actually 32 so I guess I’m not a spinster yet. And wow I could go on regarding the number of contractors over the years who have assumed because I’m a single woman that I’m somehow stupid or unable to determine when they’re feeding me a line of BS in order to make a dishonest buck. I remember one in particular – my kitchen faucet was leaking under the sink from the hose connection that goes to the sprayer – the plumber who showed up told me that I’d likely have to replace the entire faucet. I had two words for him “get out”. Because he thought I was stupid enough to believe I needed to replace a $750 faucet + labor over a leaking connector valve that I ultimately ended up ordering from Home Depot for $29 and installing myself.

    So far all the contractors I’ve actually contracted with have turned out extremely well since I follow a set of guidelines on vetting, hiring, contracting, independent inspections, and pay for performance. To date I’ve spent North of 30K remodeling my place so I suspect I’d be considered a good customer – especially since I pay on time.

    I should note however that car salespeople hate me with a passion.

  26. Scott Jacobs  •  Dec 7, 2012 @12:36 pm

    To date I’ve spent North of 30K remodeling my place

    Does that include the remote turrets and hunter-killer drones?

    I should note however that car salespeople hate me with a passion.

    That means you are doing it right. Whenever you are paying out many thousands of dollars, you need to remember that the person on the other side of the table is not, in fact, a person – they are the enemy.

  27. Jess  •  Dec 7, 2012 @12:42 pm

    Does that include the remote turrets and hunter-killer drones?

    No – but it does include the drawbridge and the moat (I mean cement pond)

  28. Marc J. Randazza  •  Dec 8, 2012 @10:06 am

    Paragraph 2.5 is really funny. Clearly, you don't practice in Florida. There, the inquiry is "who donated to my campaign most recently?"

  29. W. C. Taqiyya  •  Dec 8, 2012 @2:29 pm

    Sadly, my job here is done. UR welcome Mr. Popehat. TTFN

  30. M.  •  Dec 8, 2012 @4:32 pm

    Yeah, I'm sure the rest of the Internet will benefit much more from your verbose brand of homophobic martyr complex than we will. Good riddance.

  31. Scott Jacobs  •  Dec 9, 2012 @7:24 am

    W.C. must be working off a different definition of "sadly" than the rest of us…

  32. Tali McPike  •  Dec 9, 2012 @8:39 am

    When I first read this post I skimmed the comments, so W.C's fell into the TLDR category. No that I've gone back and read it all I can say is "Dafuq?"

    With Charisma for a dump stat it is obvious INT is being sorely neglected

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