Yelping About Bad Publicity
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.
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