Opinion vs. Fact: Defamation also requires a false statement of fact. If your review, complaint, or website is based on opinion or is unprovable, there's no fact. Opinion will probably cover most of what you write in a review. For example, calling someone a "dumbass" is not defamatory, because it's an unprovable statement of opinion. On the other hand you can't just say "it is my opinion that everyone at the car dealership down the street practices bestiality." A court will look to what you wrote and determine whether it's opinion or fact. A court in 2005 held the following terms, to be opinion:
[I]n the context of statements pertaining to issues of consumer advocacy, courts have been loathe to stifle someone's criticism of goods or services . . . . The courts have recognized that personal opinion about goods and services are a matter of legitimate public concern and protected speech.
And good news for operators and hosts: If you run a website and someone posts a comment, review, or story that's defamatory, you probably won't be held liable, even if the content is defamatory. According to federal law: "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." This law, and several state court decisions, mean that Yelp can't be sued for a bad review, and that you can't be sued for a comment someone leaves on your personal blog.
Companies file or threaten defamation suits as a way to suppress information they don't like. They do it so often that the suits have a name: Strategic Lawsuit Against Public Participation. But you have the power to turn bad publicity into worse publicity. If a company threatens you for posting a bad review, post their threats. Send us any threats or cease and desist letters you receive. Chilling Effects keeps a database of these, so make sure you send it to them, too.
FURTHER READING:
Electronic Frontier Foundation's Guide to Defamation
Some (slightly outdated) tips from Stanford's Computer Science Education program
Chilling Effects, a site dedicated to protecting First Amendment and intellectual property rights online
Penn Warranty v. Digiovanni, 810 N.Y.S.2d 807 (N.Y. Sup. Ct. 2005), an easy-to-read New York case dismissing a defamation suit against the author of a "gripe site."
(Photo: dagwood21)
This article is meant for educational purposes and is not legal advice.
]]>Completely false. Yet, being we are only a small business we can't really do anything about it.
Most likely the person is using fake contact information. Yelp doesn't really seem to care. So we're stuck. Without doing anything there's a blemish on our company. It's kind of depressing .
I always get m feeling hurt when I'm punished for something I didn't do, but sometimes that's the way it goes.
]]>I think a good lawyer could argue that Yelp reviews on doctors and dentists are a matter of public concern, since their job is to serve the public, and opinions about their professional work are of importance to the public. If that is the case, then it is almost impossible to prove malice.
]]>Nice legal article! I appreciated it.
]]>What you are thinking is the "malice" requirement when the subject of the defamation is a public figure. In that case, it's not enough to show that there was false information published, but that it was published with actual knowledge that it was false or with reckless disregard for whether or not it was false. (So if the NYT, say, publishes a story suggesting that John McCain had an affair, that is held to a different standard than if it published a story saying YOU had an affair.)
Please don't spread misinformation like this.
]]>If you are reading the Consumerist website, then you should know by now that writing something with the scent of asshole lingering on it, will get you nowhere. (or I'd at least HOPE we've taken that lesson.)
Whether you are upset by your cable service, had a vehicle break down because Midas incorrectly changed your oil, or someone in the medical profession touched you in your naughty parts and overcharged you after coping the feel....
No one's gonna really give a damn when you are clearly writing a complaint with your broken pride or emotions. Just write the damn truth.
(Oh, and if your Doctor touched your naughty parts... might wanna contact the authorities. I hear thats bad.)
]]>Causes some injury to the plaintiff
For some kinds of defamation, the plaintiff does not need to show actual damages because certain things are presumed to be defamatory. If I say that my dentist is a thief and a child molester who gave his victims AIDS, he doesn't need to prove that he actually lost money as a result of my statements (although he would get more money if he does).
]]>S.L.A.P.P. eh?
Somebody needs to concoct a clever strategy and make the acronym for such actions B.I.T.C.H.S.L.A.P.P.
In all seirousness though, from some of the doctors and dentists I've met through repairing their computers, they have massive egoes that must be stroked. They also turn into massive drama queens if their ego gets bruised.
I'm sure my dad would have been sued for libel if he posted on the internets how bad his search for a Urologist went. He went to three different Urologists before he found one that was worth a damn.
]]>How often does any of us have factual knowledge about anyone else on a BLOG? I would imagine the only real world application is an existing/ex-employee taking factual information about said company and falsifying it for the purpose of defamation. Well, that person may pay for their mistake. In other words: a real corporations name is used. So, don't use real names ;-) (i.e. MallWart)
]]>The last I checked, the plaintiff had to prove the statement was false (except in food defamation cases, ugh). This is, of course, different in the UK, where the defendant has to prove his innocence. That's why you can write (almost) anything you like here, but as soon as it's published in the UK you're more likely to get sued over negative statements - even if they're factual.
]]>Why doesnt the dentist just go online and explain himself? All it takes is this: "The appointment was late because if two people shows up 5 minutes late, someone asks me a question for 5 minutes, and I am 5 minutes slow/go pee, then I find something new in someones mouth for 10 minutes, all of which routinely happen in one morning, I am now about a half hour late. And thats if office staff can move ALL the paperwork as fast as possible. I am sorry, but thats just what happens in an office."
These situations also usually suck for Drs. and dentists since they are bound by HIPAA and cant talk about anything, but patients can say whatever they want.
]]>@sebadoh128: Accuse a scamming scumbag of being bestial and see how stupid he is.
"No, your honor, I said he was 'bestial' and his company was 'incestuous'. It's not my fault he's uneducated."
]]>The ways disgruntled clients can fuck with you online are just unreal these days. And (as I'm sure you know), disgruntled clients are not always disgruntled for any reason except that they're total idiots.
(I had a client who's STILL furious with me, like three years later, for WINNING their case. Because it turned out the opposing party, whom they hated with the fire of a thousand suns, had made an honest (if stupid) mistake. I recovered their money, which was their purpose in suing, but I failed to prove the opposing party ate babies and committed routine criminal fraud. These clients are STILL running around town saying what a rotten attorney I am. I'm just glad they're not net-savvy.)
I don't know of a good way to handle that problem without stifling the ability of consumers to complain about companies that really DO suck, but I know it fills me with dread whenever I get one of those e-mails saying, "You've got a new review on our site!" Even though I haven't really had a bad one yet. I'm sure it's just a matter of time.
(Actually, I do know how a lot of professionals handle that problem, and that's refusing to take clients they suspect might grow up to be problems of that sort. Which also isn't a great outcome.)
]]>HEY YELP! YOUR FATHER WAS A HAMSTER AND YOUR MOTHER SMELT OF ELDERBERRIES!
Now I just sit back and wait for the supoena to be served...
Both public and private figures must not only prove that there was defamation and it was false. However, public figures but they also must prove that the libeler knew the information was false and had malicious intent.
]]>Yeah that's okay, your entitled to your opinion. Now, if you said that "Comsumerist sucks because they sleep with your spouse" that would be grounds for slander.
]]>first of all the defamation standards are from New York... and are likely inapplicable in your locality.
second of all SLAPP and law is highly complex and varies from state to state. furthermore as it is a nascent and rapidly evolving area of law, Courts' subjective interpretation of the law can vary widely... and I'm talking from personal experience. worst-case scenario is that you file a SLAPP against a Plaintiff, and the Plaintiff files an anti-SLAPP cross-complaint against you... and if the Court agrees with the Plaintiff... you could be on the hook for HUGE attorney's fees related to opposing the motion.
if I could contribute anything of value to this discussion... it would be this: be reasonable.
nobody likes an anonymous coward on the internet. if you're going to completely trash someone's business in a way that is going to put off potential customers... don't be surprised when they poke you back.
if the business really screwed you over, then by all means publish that fact. but it is critical that you remain CALM, COMPOSED AND TO THE POINT. if you have a valid grievance and you state it in a reasonable matter... you're going to be very well-insulated from liability. if you get on the internet and write a really angry and nasty review... be prepared for the subject of your review to get really angry and nasty in return.
like I always tell people... when you've lost your temper... you've lost the argument. pretend you're "The Dog Whisperer" and remain "calm and assertive".
]]>For example, if ordinary person A publishes libel about ordinary person B, person A might be in trouble, but if ordinary person A publishes libel about the President they are in the clear.
If my recollection is correct, the reason the two situations are handled differently is based on the fact that a person like the President puts himself out to the public. By making himself a public figure, he necessarily welcomes the public to derive opinions about him.
]]>The "in my opinion" part is irrelevant; it's whether the statement would be interpreted as factual by a reasonable person; this example is pretty clearly stating something as a a fact rather than an opinion.
Another important thing to keep in mind with these cases -- the plaintiff has to prove falsity; the defendant is not required to prove truth, even though proving truth is a great way to win a case. The burden of proof is on the plaintiff.
]]>Their application asks for a temporary injunction, permanent injunction and final judgment prohibiting the Defendant as follows:
a. further slandering, defaming or even naming the Plaintiff Waterstone Resorts LLC on any blog site, website or any other media outlet and avenue, rather it be his personal blog or website or any other blog or website;
b. order the Defendant to disable any and all blogs and websites operated by the Defendant;
c. to provide a list to the Court of all parties the Defendant contacted by email, phone or any other form of communication in relation to Plaintiff Waterstone Resorts LLC.
In addition to asking for injunctive relief, damages unspecified they also demand a 'public apology'. The whole thing runs about 40 pages, but only 7 are the actual text of the submission, the rest is exhibits.
Take a look at: http://waterstoneresortsllc.blogspot.com and
http://nautiluscovesuit2008.blogspot.com
I think you might still be OK on this one. If you took the 'in my opinion' out you'd be in trouble though, unless you could prove it.
]]>Suit yourself!
]]>And in that spirit:
BILL GATES EATS PUPPY MARINATED IN HIS OWN URINE!!!
]]>I think I'm an asshole! What am I going to do about it?
]]>"I believe dentist xxx is truly terrible and seeks to rip off clients with unnecessary procedures"
"My opinon is dentist xxx........"
"My experiences lead me to believe........"
"Other clients agree with me that....."
If you have a terrible experience and then state, "This dentist is terrible and rips off all his clients", then well, you deserve to land in hot water. How does YOUR one experience give you the ability to make such a generalized statement ? It doesnt.
]]>What if you said you wouldn't be surprised if everyone at the car dealership practices bestiality?
]]>Either it's becoming a bigger problem, or some lawyers want practitioners and small business owners to BELIEVE it's becoming a bigger problem.
I'm not signing on with them, but I'd love to know what their "copyrighted template" says on this subject.
]]>As long as you are not accusing them of bestiality, have at it.
]]>So, "Consumerist sucks" is okay?
]]>I'm now encouraged to go post slanderous and libelious information that I may 'cleverly' interpret as my opinion.
]]>