Articles Posted in Review Sites

“SLAPP” suits are lawsuits brought primarily for the purpose of stifling criticism or intimidating those with opposing views by forcing them to incur legal-defense costs. (SLAPP stands for “Strategic Lawsuit Against Public Participation”). The lawsuits are often disguised as defamation actions but generally have as their true purpose a desire to silence speech deemed undesirable (regardless of whether the speech is truthful). Many states have passed anti-SLAPP laws designed to turn the tables by requiring plaintiffs who bring such suits to reimburse the defendant for legal fees incurred in fighting off the action. Virginia enacted its anti-SLAPP statute only recently–the latest amendments, which allow the recovery of attorneys’ fees for the first time, became effective July 1, 2017. Consequently, not a lot is known about how the courts will interpret and apply its terms. Its language differs markedly from the anti-SLAPP laws in other states, so the Virginia courts are going to have to blaze new territory in deciding how to apply the new law.

One big question the courts are going to have to decide: does Virginia’s new anti-SLAPP law apply to consumer reviews? In the past, defamation actions tended to be brought primarily against newspapers. But now we have the Internet, where anyone can be a publisher of content, and courts are becoming increasingly clogged with defamations brought against consumers by businesses offended by negative reviews posted to Yelp, Angie’s List, or some other consumer-review site. Concerned about studies such as the one by Harvard Business School concluding that a difference of just a single star on Yelp can affect business revenues by nearly 10%, many businesses respond very aggressively to consumers who post negative reviews that bring down their average rating, sometimes resorting to litigation. Such businesses need to be reminded, however, that the First Amendment protects consumers’ right to express their personal views, no matter how negative or harmful they may be. So is this a situation where the new anti-SLAPP law might be applied?

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Yes, the First Amendment protects your right, as a consumer, to express your personal opinions about any business you ordered products or services from, no matter how unfavorable those opinions may be. The First Amendment also protects your right to express those opinions anonymously, so if you’d rather not tell the whole world that you had a bad experience with the customer-service representative at Ashley Madison, the law allows you to post an unfavorable review of the company without revealing your real name. Still, despite the abundance and convenience of online review sites like Yelp, TripAdvisor, Google+, and Angie’s List, many consumers are reluctant to share negative experiences on these sites. Why? They worry about being sued for defamation. They read about aggressive businesses who bury non-disparagement clauses in form contracts and who file multi-million-dollar libel and slander claims in far-flung jurisdictions, based solely on a negative Yelp review. So they keep their opinions to themselves, depriving the consuming public of the benefit of their experiences. (This is known, incidentally, as a “chilling effect”).

Unfortunately, if you rip into a shady business with a scathing (and well-deserved) online review, there is always a possibility that the business will sue you for defamation. These claims are often frivolous and filed only as an intimidation tactic, but they are a pain to deal with nonetheless. Still, when a business deserves a one-star review, and has dealt with you in such a way that you feel an obligation to warn other consumers about the business, you can still write that scathing review with little risk of retaliation. Here are five considerations to keep in mind as you write that review:

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Once upon a time, each separate copy of a defamatory statement was considered a separate publication, giving rise to a separate cause of action for defamation. Back then, if a defamatory article was published in a newspaper and the newspaper printed a million copies, the plaintiff could argue successfully that he had been defamed a million times. That is no longer the law, at least not in Virginia. Take Yelp reviews. If a new cause of action was created each time a consumer clicked a link leading to a defamatory review, the one-year statute of limitations would potentially never expire. Such a rule would likely allow plaintiffs to endlessly harass defendants by filing a new lawsuit with each new click. For reasons like these, Virginia follows the “single publication rule,” which treats an online post as a single publication despite the fact that it may be read over and over again by different people all over the world. The number of views may be relevant to assessing the plaintiff’s damages, but does not re-start the running of the statute of limitations or create new causes of action.

A Virginia law firm learned this lesson recently in Westlake Legal Group v. Yelp and Christopher Schumacher. Mr. Schumacher hired Westlake attorney Thomas K. Plofchan, Jr., back in 2009 and, according to his Yelp review, was not pleased with the representation he received. His review, posted on July 7, 2009, accused Westlake of “blatant incompetence and lying” and of having “a history of messing up cases.” Westlake sued for defamation, not only against Mr. Schumacher, but against Yelp itself. The firm did not file the lawsuit, however, until May 11, 2012, well after the one-year limitations period had expired.
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Virginia practitioners will know more about this topic in a few months, when the Supreme Court of Virginia decides Yelp, Inc. v. Hadeed Carpet Cleaning, but for now, we have an opinion from Fairfax Circuit Court applying the six-part test established by Yelp for uncovering the identity of anonymous Internet speakers.

The case is Geloo v. Doe, decided June 23, 2014. Fairfax attorney Andaleeb Geloo filed a defamation action against various anonymous posters to the Fairfax Underground site and sought to uncover their identities by issuing subpoenas to Time Warner Cable, Verizon, and Cox Communications. At issue were statements referring to Ms. Geloo as a “run of the mill court appointed attorney” and a “fat Paki,” and a statement accusing Ms. Geloo herself as being the secret author of a discussion thread entitled “Andi Geloo – Bullshit Artist.”
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Before rushing to the courthouse to sue someone for libel or slander, there are a number of things one should consider. For one thing, even if no counterclaim is filed, filing a defamation action opens the door to all kinds of personal details about your life that you may prefer to keep private. To prevail, a plaintiff needs to prove that the defamatory statement was false. The defendant–the person who made the statement–doesn’t need to prove anything. Think about what that means as a practical matter. If someone Tweeted to a million followers that you are some kind of sexual deviant and that you had sex with a wildebeest (and assuming that the Tweet was understood and believed by readers as a literal statement and not as mere rhetorical hyperbole), and you decide to sue for defamation, you will need to prove that you did NOT actually have sex with a wildebeest. How does one prove such a thing? Well, generally by presenting evidence to the jury about what kind of sex life you DO have so that they can see that you are not the sort of person who would do such a thing. Or maybe you throw in some evidence about your documented fear of antelope. Either way, it could be embarrassing.

There’s also the libel-proof doctrine to consider. Because the tort of defamation is concerned primarily with damage caused to one’s reputation, some courts have held that when a plaintiff’s reputation is already so tarnished at the time a defamatory statement is published that it would be virtually impossible to make the reputation worse, the plaintiff will be deemed “libel proof” and the case will be dismissed prior to trial. If the defendant claims you are libel proof, think of what fun the discovery process will be for you, as the defendant goes about digging for evidence about how bad your reputation already is.
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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.

Under § 230(c)(1) of the Communications Decency Act (47 U.S.C. § 230(c)), “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.” Federal courts in Virginia have held that § 230 creates federal immunity to any cause of action that would make service providers (as opposed to content providers) liable for information originating with a third-party user of the service. For example, Section 230 has been found to bar claims for defamation, tortious interference with business expectancy, and trademark infringement. In Directory Assistants, Inc. v. Supermedia, LLC, the court clarified that Section 230 immunity applies not only to providers but also to users.

Directory Assistants is an advertising consulting agency that helps businesses advertise in yellow page directories. SuperMedia also sells advertising solutions. Directory Assistants had been the subject of allegedly false and defamatory postings on consumer review websites such as RipOffReport.com, ScamInformer.com, and YellowPages.com. According to Directory Assistants, SuperMedia sent an email to a prospective customer that included links to the allegedly defamatory postings. Directory Assistants sued SuperMedia for defamation, and SuperMedia moved to dismiss, arguing protection under Section 230.

Reviewing relevant case law and the statutory language, the court found that Section 230 protects users equally as it does providers, and it held that although a person who creates unlawful content may be held liable, a user of 230.jpgan interactive computer service who finds and forwards via e-mail content that others have posted online in an interactive computer service is immune from liability.

The First Amendment protects the right to speak anonymously on the Internet, but that right is not absolute. Defamatory statements, in particular, are not protected. Freedom of speech does not include the right to commit libel or other torts anonymously. As demonstrated by a new case filed in Henrico County Circuit Court, however, not everyone agrees on the extent to which an online review can go before a poster’s identity must be revealed.

Armando Soto is a plastic surgeon in Orlando, Florida. A former patient, unhappy with the results of a breast augmentation procedure, posted negative comments about Dr. Soto on www.RateMDs.com. The comments included statements that scars were “horrific,” “frightening and unnecessary,” that breasts were “uneven,” that Dr. Soto charged for procedures that he did not perform, and that he is not skilled or caring.

The online comments were posted anonymously, so Dr. Soto filed a “John Doe” action and subpoenaed Internet provider Comcast for records revealing his critic’s identity. The anonymous reviewer hired a lawyer and moved to scope.jpgquash the subpoena to protect his identity. (Apparently the allegations are that “John” received breast augmentation surgery, which is why I’m referring to “his” identity).

Julie Anne Smith and her family attended Beaverton Grace Bible Church for over two years. When the church dismissed one of its employees for “subversive conduct,” the Smith family sought meetings with the Pastor and Elders to discuss the situation because they felt the termination was handled poorly. During the meetings, the Smiths and church officials discussed church policies and governance. Later, an elder informed Mrs. Smith that she must “recant” or her entire family would no longer be welcome at the church. The Smiths stopped attending the church.

Mrs. Smith later learned that Oregon authorities were investigating allegations of child molestation by a teenage member of the church whom she had seen in the child care area. The Pastor and Elders came unannounced to the Smith home demanding to know whether the Smiths knew who had reported the abuse. The Pastor informed the Smiths that they were “excommunicated.”

Mrs. Smith began posting comments about the church under Google’s “reviews” of the church. Congregants, former congregants, and the Pastor also posted comments, and the dialogue about church governance and doctrine continued. The Pastor removed many postings, so Mrs. Smith began her own blog, Beaverton Grace Bible Church Survivors, where she continued making and encouraging comments.

Consumer review sites continue to grow in popularity. Sites like Angie’s List, Avvo, and Yelp (to name but a few) allow people to post their experiences with lawyers, doctors, hairdressers, restaurants, roofers, and just about anyone else, and assign a rating to the service provider they used. When used honestly, these sites can provide a benefit to consumers. But they can also provide a mechanism for bogus reviews intended to maliciously destroy a business’s reputation. Here in Virginia, negative reviews are often the subject of defamation lawsuits.

In general, the First Amendment protects expressions of opinions on these sites. All legitimate reviews, both positive and negative, can help consumers come to well-informed conclusions. Negative reviews, however, cross the line if they include false statements of fact. Consumers are free to express unfavorable opinions regarding their experiences with a service provider, but the First Amendment does not allow them to defame the service provider by posting false information.

A Texas lawyer recently filed a defamation action, claiming that a negative review that he received on Citysearch.com was not only derogatory but false and was the result of a conspiracy to defame him, evidently in retaliation for his decision to fire a paralegal at report card.jpghis law firm. Attorney Michael Weston sued his former paralegal and the man believed to be her husband.

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