Defamatory Yelp Review Damaging Your Business? Don’t Expect it to Come Down Any Time Soon.

Jane Perez hired Dietz Development to repair her townhome. When Perez became dissatisfied with Dietz’s performance, she fired Dietz and posted negative online reviews on both Yelp and Angie’s List. Her comments not only expressed her dissatisfaction with Dietz’s work but also implied that Dietz was responsible for some jewelry missing from Perez’s home. Dietz sued Perez for defamation in Fairfax County Circuit Court and requested a preliminary injunction ordering her to remove the statements.

Perez opposed the injunction but apparently did not argue that an injunction would be an impermissible “prior restraint” under the First Amendment. The trial judge gave Dietz a partial victory, enjoining any discussion of the missing jewelry and ordering Perez to delete certain misleading statements she had made about a related lawsuit. Perez filed a motion for reconsideration in which she raised the prior-restraint issue, and appealed to the Supreme Court of Virginia shortly thereafter. Remarkably, the Supreme Court vacated the injunction just two days after the petition for appeal was filed and without even giving Dietz an opportunity to respond.

The First Amendment prohibits prior restraints on speech unless publication would threaten an interest more fundamental than the First Amendment itself. Perez argued that Dietz’s reputation as a businessman in the community does not rise to that level of importance. She also argued that although some jurisdictions allow an Yelp.jpginjunction against comments that have been found false and defamatory after a full trial, injunctions against speech that has not been found to be false and defamatory are never appropriate.

Perez noted that the issue of prior restraints in a defamation case is one of first impression in Virginia. However, the Court of Appeals has invoked the common law rule that “equity will not enjoin a libel” because there is usually an adequate remedy at law. Here, Dietz could recover post-publication damages if it proves that Perez’s statements were false and made with actionable negligence or malice. Finally, Perez contended that the injunction was overbroad in that it forbade her from making even truthful statements about the loss of her jewelry.

The Supreme Court of Virginia invalidated the injunction because it did not specify a time limit and because “the preliminary injunction was not justified and . . . the respondents have an adequate remedy at law.”

Dietz can continue to pursue its claims for damages but Perez’s comments–even those claimed to be defamatory–will remain online.

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