Online review sites wield enormous power, and some enterprising consumers have begun leveraging that power to extract refunds or other benefits from businesses worried about protecting their online reputations. Suppose you’re at an orthodontist’s office being fitted for some $5000 braces when the orthodontist accidentally pierces the inside of your cheek. You decide that (a) the doctor is incompetent and (b) the world should be made aware of that fact for the good of mankind. Your first instinct is to go to Yelp or HealthGrades and write a scathing review warning the public about the dangers of dealing with this orthodontist. But then you realize you might be able to gain even greater satisfaction another way: you contact the doctor, tell him of your plans to write a negative online review, and offer to refrain from posting the review if he will waive the $5000 charge for the braces. You get free braces, and the doctor gets to preserve his 5-star Yelp rating. Win-win, right?
Consumers have a First Amendment right to express their opinions regarding products and services they have received, but things get a little tricky when people threaten to exercise that right as a means to extract money from someone. Some would call this blackmail, known in Virginia as extortion. Extortion is governed by Va. Code § 18.2-59, which provides in pertinent part, “Any person who (i) threatens injury to the character…of another person,…and thereby extorts money, property, or pecuniary benefit or any note, bond, or other evidence of debt from him or any other person, is guilty of a Class 5 felony.”
Thus, threatening to defame someone’s character if a monetary payment is not made satisfies the definition of extortion. The disgruntled patient could not demand free braces by threatening to post a malicious review falsely accusing the orthodontist of molesting children. Clearly, that would be extortion. But what if the threat is merely to reveal an honest (if negative) opinion or a true fact (such as the accidental cheek piercing)? Those statements would not be defamatory, but nevertheless might cause harm to the doctor’s reputation and character. There is some authority in Virginia supporting the proposition that threatening to reveal a harmful truth can still be grounds for an extortion prosecution.
This may seem counterintuitive, because most definitions of extortion include an element of wrongfulness, and there is nothing inherently wrongful in writing a truthful and non-defamatory online review. Virginia courts are among those that require that extortion be wrongful. See Stein v. Commonwealth, 402 S.E.2d 238, 241 (1991) (defining extortion as “To gain by wrongful methods; to obtain in an unlawful manner, as to compel payments by means of threats of injury to person, property, or reputation”); Strohecker v. Commonwealth, 475 S.E.2d 844, 852 (1996) (“the gravamen of extortion is wrongfully obtaining a benefit”). At least one Virginia court, however, has found the wrongfulness element satisfied by the act of making a threat as a means of extracting money, even if there is nothing unlawful about the threatened act itself.
Wood v. Commonwealth was an appeal of an extortion conviction. The evidence at trial was that Ms. Wood and Mr. Kubacki had engaged in sexual intercourse, and that Ms. Wood later demanded $700 from Mr. Kubacki and threatened to call the police and claim that he had raped her if he refused to pay. The Commonwealth indicted and prosecuted Ms. Wood under Va. Code § 18.2-59 for threatening “injury to the character” of Mr. Kubacki in an attempt to extort money from him. On appeal of her conviction, Ms. Wood argued that she had, in fact, been raped, and that the Commonwealth failed to prove falsity of the allegation underlying her threat to Mr. Kubacki.
The Court of Appeals rejected her argument and affirmed her conviction, holding expressly that the Commonwealth was not required to prove falsity: “The crime of extortion addresses the malice found in obtaining money or other value by threatening to harm another’s character; it is not concerned with whether the accusation, by which the harm is threatened is true or false.” The truthfulness of the threat, the court found, was “immaterial.” See Wood v. Com., 382 S.E.2d 306, 308 (1989).
Unlike some other states, Virginia has not recognized a civil cause of action for extortion. Nevertheless, care must be taken by anyone contemplating using “freedom of speech” as a sword in which to coerce others to pay money or provide other benefits.
Lawyers need to be particularly careful. Any demand letter that threatens to “go to the media” with harmful and embarrassing facts unless a payment is made to settle an unrelated claim raises the prospect of blackmail and extortion. When sending demand letters to prospective defendants prior to the initiation of litigation, the prudent attorney should ensure the content is material, relevant, and pertinent to a proceeding being contemplated in good faith, and that the letter is not shared with anyone not having an interest in the proposed proceeding. This will likely invoke absolute judicial privilege and may offer protection against allegations of extortion.