In today’s cautionary tale, a woman, Nancy Nicolauo, was bitten by a tick, and later began suffering symptoms such as numbness, fatigue and lower back pain. Things got worse, and she eventually had problems walking and was confined to a wheelchair.
Given the tick bite, Lyme disease was suspected, but the results came back as negative. She went to a passel of doctors, and was eventually diagnosed with multiple sclerosis.
Nine years after the symptoms started, she got tested again for Lyme disease, and this time the results came back positive. Nicolaou decided to sue for medical malpractice, claiming her medical issue had been improperly diagnosed, causing her to suffer for all those years.
Now comes the key issue. Nicolaou received the results from the Lyme discease test in 2010, and filed her suit in 2012. She claimed she was within the two year statute of limitations (SOL) for a medical malpractice claim because she did not “discover” the misdiagnosis until she received the test results in 2010. But when a claim is based on discovery, the SOL runs from the date that the plaintiff “knew or should have known” of the negligence.
However, counsel for defendants had done a little snooping into Nicolaou’s Facebook postings. As argued by defense counsel, “As underscored by the trial court, on Feb. 14, 2010, Mrs. Nicolaou posted, ‘I had been telling everyone for years i thought it was lyme…,’ to which one of her Facebook friends responded, ‘[Y]ou DID say you had Lyme so many times!'”
Thus, as evidenced by her own Facebook postings, Nicolaou had suspected “for years” that she was suffering from Lyme disease. Therefore, she “knew or SHOULD HAVE KNOWN” that the doctors had misdiagnosed her condition years earlier. The court did not agree that the clock did not start ticking on the SOL until she had actual confirmation from the lab test. She was under a reasonable duty to investigate her suspicions.
The trial court dismissed her claims on a motion for summary judgment, and that decision was upheld by the appellate court.
Posting on Facebook is a little like playing poker with all your cards face up on the table. It can be done, but the other side knows exactly what you have.
Yet another cautionary tale about how the things you post on Facebook can come back to haunt you.
On Friday I received a call from a prospective client, wanting to sue her employer. The caller had filed a workers compensation claim, and she was convinced that her employer was having her followed. I explained to her that, assuming she is not just imagining that she is being followed, such conduct is not unusual. Many a workers compensation claim, personal injury claim, and disability claim has been defeated by videos showing the plaintiff engaging in activities he or she claimed were prevented by their injuries.
The caller was shocked by such an invasion of privacy, and asked if it is legal. In response to that question, allow me to introduce the case of Xiong v. Knight Trans, out of the 10th Circuit.
A woman by the name of Pahoua Xiong suffered a back injury when her vehicle collided with a Knight Transportation truck. Xiong successfully sued for her injuries, with a jury finding that she was 40% liable for the injury, and Knight was liable for the remaining 60%. She was awarded $499,200.
Knight then moved for a new trial, on two grounds. First, Knight argued that there was insufficient evidence to support the damages awarded, and second because there was new evidence, found after the trial, proving that Xiong had committed a fraud on the court.
What was this new evidence? Well, given the opening paragraph of this article, you probably figured out that it was something Xiong posted on Facebook. Indeed, after the trial, a member of Knight’s legal team happened across pictures of Xiong on Facebook, showing her partying with friends and family, seemingly pain free, despite her claims that she was in such severe pain that she was taking five or six Percocet every day.
Based on the photos, Knight conducted more discovery on social media, and then hired a private investigator to follow Xiong and record her as she went about her days.
In Federal court, to successfully argue for a new trial based on the post-trial discovery of evidence, the party must show a number of factors, the most important for this discussion being that the party was diligent prior to trial in seeking out the evidence. So Knight showed the evidence obtained on Facebook and what the private investigator uncovered, but the trial court denied the motion for new trial, holding that the evidence could have been discovered earlier with more diligence.
Knight appealed, but the 10th Circuit came to the same conclusion. That appellate court concluded that the same steps that were taken after the trial, that revealed the evidence, could have been taken before the trial. Although Knight apparently did search social media prior to the trial, its efforts failed to turn up the photos of Xiong due to a misspelling of her name. As to what the private investigator uncovered, he could have been hired just as easily prior to the trial.
So, in answer to the caller’s question about whether it is legal to have someone followed in the hope of refuting their injury claims, according to the 10th Circuit, doing so is necessary part of the investigation in order to show due diligence.
A false Yelp review can be devastating to a business. There are a number of factors that vary the impact of a false review, including of course the nature of the false review, and the number of honest, positive reviews to offset it. But a recent study determined that a single false Yelp review can cut a business’s gross income by 20%. I personally have seen situations involving businesses with few reviews are put out of business by false reviews.
Unfortunately, Yelp thrives on negative reviews. A big part of Yelp’s income comes from businesses that pay to subscribe to Yelp’s business services. Most of the incentive for wanting to pay Yelp comes from a desire to set forward a better image on Yelp, and for that Yelp needs negative reviews. A business with nothing but positive Yelp reviews is less incentivized to pay Yelp.
It is NOT true that paying Yelp will allow removal of negative reviews, or that failing to pay Yelp results in removal of all positive reviews, at least not directly. I don’t believe that there is a secret manual within Yelp, instructing its salespeople to retaliate against businesses that refuse to sign up for Yelp’s services, but I have received too many calls from potential clients, complaining that is just what happened, to believe that it is mere coincidence.
The story is always the same. The business was going along, singing a song, with nothing but positive Yelp reviews. Then, out of the blue, two or more negative reviews appear, usually blatantly fake in nature, because the “reviewers” complain about some product or service the business does not even offer. In one instance, the caller to our office received two fake reviews in two days, both using names of famous athletes.
Yelp undoubtedly has a mechanism that notifies its salespeople when a business has received negative reviews, because shortly after these fake reviews appear, the business receives a call from Yelp’s sales department, noting the negative reviews, and explaining that while paying $500 per month to Yelp will not enable the business to remove these negative reviews, it will give the business more control over its “Yelp presence”, including the elimination of ads from competing businesses on that business’s home page.
If the business respectfully declines, it is then that the business’s positive reviews are filtered, or so has been reported to us over and over and over.
My theory, giving Yelp the benefit of the doubt, is not that Yelp is retaliating, but that this sales process brings a human being into the equation, instead of just Yelp’s algorithm. Under Yelp’s “rules”, reviews are supposed to be entirely organic, and not the result of improper encouragement from the business. Perhaps in looking at all those positive reviews, said human being notices that many were posted in the same week, possibly indicating that there was some incentive provided that week for Yelp reviews. Or perhaps it is noticed that many of the reviews refer to the owners by name. Would so many people eating at a restaurant really know the owners’ names? Perhaps these raise red flags, and legitimate or not, it is decided that these positive reviews should be filtered.
It is because of this sequence of events that so many people believe that Yelp is somehow responsible for the negative reviews, and that the removal of positive reviews is done to punish business that don’t subscribe.
But whatever the reality may be, the undeniable fact is that fake reviews are posted on Yelp. We have repeatedly uncovered “fake review mills”, ranging from disgruntled former employees to full time staff members, hired to post negative reviews about competitors.
Only false reviews need apply.
Litigation is never a 100% certainty, as evidenced by the two cases that follow. But an attorney who really knows his or her stuff can certainly mean the difference between victory or defeat. If you are going to enter the murky waters of a defamation action, be sure you have a good defamation attorney.
Our first example is the case of Francis X. Cheney, II v. Daily News L.P. (Cheney). In Cheney, The New York Daily News reported on a sex scandal at the fire department, and the article included two photographs. The first was a generic stock photo showing firefighters at the scene of a fire, but inexplicably the newspaper chose to also use a photo of firefighter Francis Cheney II, taken during a formal 9/11 ceremony. The newspaper’s intent was simply to use Cheney as a representation of a firefighter, but a casual reader could easily draw the conclusion that he was one of the firefighters involved in the sex scandal.
Cheney sued the newspaper, claiming that the photo had harmed his reputation by implying that he was one of the firefighters involved in the sex scandal. But a judge in federal court dismissed the action, finding that since the article never mentioned Cheney by name, it was too much of a stretch to assume that readers would think the photo was there because he was a participant.
Cheney appealed, and the Court of Appeals for the Third Circuit agreed with the conclusion of the trial court, and affirmed the dismissal of Cheney’s case. [But see the update at the end of this article!]
So, the rule of law appears to be that if a newspaper uses a stock photo of you in conjunction with a scandalous story, you cannot successfully sue for defamation unless you are referenced by name in the article.
Now we turn to the case of Leah Manzari v. Associated News Ltd. (Manzari).
In this case, an online newspaper called the Daily Mail Online published an article about the adult film industry, entitled, “PORN INDUSTRY SHUTS DOWN WITH IMMEDIATE EFFECT AFTER ‘FEMALE PERFORMER’ TESTS POSITIVE FOR HIV.” With the article, the Daily Mail published a stock photo of Leah Manzari, who is professionally known as Danni Ashe. Manzari sued for defamation, stating that the article falsely implied that she tested positive for HIV.
The article never used Manzari’s real name or film name. So, under the reasoning of the firefighter case, Manzari’s action has to be dismissed because it is too much of a stretch to think that readers will assume the article is referring to her, just because of the photo. Right? Continue reading
Although founded almost a decade ago, Glassdoor’s defamation problems seem to be a more recent phenomenon. We did not begin receiving calls about defamatory Glassdoor reviews until about two years ago.
In case you are unfamiliar with the site, Glassdoor seeks to be an online community regarding companies and employment. On the site you can find job listings, salary stats, and employee reviews regarding the companies at which they work or worked.
But like all review sites, there are those who use Glassdoor as a means to post false reviews about competitors, or for revenge purposes by falsely trashing a company that terminated the “reviewing” employee.
Again, I always feel compelled to explain the nature of the reviews of which I speak. I will fight to the death for the right of an employee to post an honest review about the terrible experience he had with an employer. But when I talk about false reviews, I am speaking of reviews where a competitor purports to be an employee and makes false statements about the company, or where an actual employee publishes verifiable lies about the company, as opposed to mere opinions. For example, in a recent Glassdoor case we handled, the employee stated in his review that the company is always late in issuing paychecks to the employees. The company had never been late with payroll.
Removing false Glassdoor reviews.
To its credit, Glassdoor is one of the more honorable review sites. Before posting a review, the user must attest that they were or are an employee of the business in question, and their email address is validated. (Email validation does little to stop someone bent on posting defamatory posts, because they can easily create an email account, but at least it provides one more hoop for the defamer to jump through.)
As with most review sites, if you are an employer and find yourself burdened with a false review on Glassdoor, your first line of attack should be to ethically encourage positive reviews. The internet community understands for the most part that no matter how wonderful a company/employer, there will be some background noise created by trolls. But if you are faced with truly harmful fake reviews, and need them removed from Glassdoor, give Morris & Stone a call.
Internet Defamation Law Clarified
Morris & Stone is proud to announce that righteous Internet defamation cases will now be easier to prove, due to a Court of Appeal opinion resulting from one of our cases.
I was brought in as co-counsel to first chair a trial in Santa Cruz, representing an attorney we will refer to as “Esquire”. In addition to her legal practice, Esquire had a business on the side, which was based in some warehouse space. A few years into Esquire’s lease, the warehouse was purchased by someone we will call “Painter”, making Painter Esquire’s landlord.
The problem was, Painter wanted the entire warehouse for his own use, so he made a buy-out offer to Esquire. But Esquire liked the space, and turned down the offer.
Then began what Esquire saw as a harassment campaign, designed to get her to move out. The harassment included fights over parking and jack hammering during business hours. Ultimately, Esquire was forced to go to court to get an injunction against Painter to stop some of the behavior.
The same day the injunction was issued, Esquire received her first negative Yelp review, which was followed by two more. It was clear the reviews were false, because they accused Esquire of poorly performing services that her company did not even offer. By subpoening records from Yelp and then the Internet Service providers, Esquire confirmed that one of the reviews had been posted from Painter’s business account, and two had been posted from his home account.
Judge Ariadne Symons
Esquire sued Painter for breach of the covenant of quiet enjoyment as to her lease, and for defamation for the fraudulent Yelp reviews. Painter cross-complained for breach of lease. The trial was assigned to Judge Ariadne Symons, who by her own admission was probably not the best choice for this case, confessing that she knew nothing about the internet and computers.
At commencement of trial, the defense took one look at our trial brief, and immediately dismissed the cross-complaint, leaving for trial only our complaint against Painter. Unfortunately, Judge Symons’ fundamental misunderstanding of the rules of evidence, both as to what is necessary to admit documents posted on the internet, and as to indirect evidence and inferences, led to the exclusion of all of our defamation evidence. Judge Symons simply did not understand some basic evidentiary principles, dealing with the authentication of web postings and indirect evidence.
How to Authenticate Yelp Reviews
For example, to authenticate a review posted on Yelp, all that is required is a witness (usually the client) who can testify that the copy of the review being offered as evidence is an accurate depiction of what the witness saw when he or she visited the Yelp site. This does not mean that you can introduce anything you find on the Internet as proof of whatever it says, it means only that pursuant to Evidence Code section 1552, a witness can testify that “this is the review I saw posted on Yelp,” and that review becomes admissible as to its existence. Although we provided very clear authority, Judge Symons erroneously ruled that a representative of Yelp must be present to authenticate the existence of the reviews.
The Law of Indirect Evidence
Then there was the issue of the indirect evidence. We had the defendant dead to rights as the party who had posted the fraudulent reviews, because the IP information showed that the reviews had been posted from defendant’s home and office internet accounts. In an internet defamation case, unless the defendant confesses to posting the reviews, you can never prove unequivocally that the defendant’s fingers typed the reviews, but the jury is permitted to make the reasonable inference that defendant posted the reviews if they were posted from his account (on the very day that plaintiff has successfully sued defendant in court on another matter). But despite all the authority we provided to the contrary, Judge Symons erroneously held that indirect evidence was not admissible. An appeal was necessary to reverse all of the evidentiary errors by Judge Symons.
As anticipated, the Court of Appeal for the Sixth District found in favor of Esquire on the evidentiary rulings, and reversed the trial court. It took Judge Symons to task, referring to her conclusions as “perplexing”. More important for the legal community at large, the Court of Appeal used the opportunity to provide a very detailed explanation to all trial courts as to the admissibility of information posted on the internet, as well as the proper determination of the admissibility of indirect evidence.
In a perfect world, Judge Symons would have followed the authority we provided, and our case would have proceeded directly to verdict. But we take solace in the fact that even though the case was delayed and will now have to go back for a new trial (in front of a different judge), that detour served to create a precedential blueprint for all judges and attorneys to follow in future internet defamation cases.
Judge Symons has been moved to Family Court.
For a detailed discussion of this important opinion, click on the play button beneath the image, for the California SLAPP Law Podcast.
As I have stated here many times, although wrongdoers have been able to use it as a shield, the Communications Decency Act (“CDA”) is an essential statute if we want to live in a country where one can freely offer their opinions about products and businesses.
But I have also argued for a simple fix to the abuses of the CDA. If someone posts a defamatory review on Yelp, the CDA prevents any legal action against Yelp; only the person who posted the comment is liable for the defamatory comments. Fair enough. If Yelp could be made to research every review the subject of that review claims is defamatory, it could not exist, and the process of finding a good sushi restaurant would be made far more difficult.
But would it be so burdensome to require Yelp to take down a review, AFTER a court has determined that review to be false and defamatory? It is a long and arduous journey to take a case to trial and prove that a review is defamatory. There would be very few judgments coming out the other side of that process, and hence very few posts Yelp would need to take down. Indeed, Yelp should embrace such an approach, because it claims to want only legitimate reviews. If after presentation of evidence, a court has determined that a review posted on Yelp is false, Yelp should be thrilled that a false review was rooted out and jump to remove it.
The CDA is a necessary evil, but it makes no conceptual sense that after the person who posted the comment has been found to be liable for defamation, that the post can remain, still damaging the reputation of the plaintiff. At least in the case of Yelp, the court can order the defendant to remove the post, and the defendant has the ability to do so, but what about sites like Rip Off Report, where the site prevents the defendant from removing his own post? I have long called for a mechanism to force sites to remove defamatory posts after a court has found them to be so.
Finally, a Court in San Francisco apparently heard my plea, and entered a judgment ordering Yelp to take down a post. The conventional wisdom has always been (1) you can’t get a court to order an injunction against Yelp since it is not a party to the action, and (2) obtaining such an order would violate the CDA, because is somehow amounts to finding liability against Yelp.
But I have long railed against that conventional wisdom. Continue reading
Is there a way to stop Internet defamation when you have limited funds to hire an attorney?
Here’s a call I get a few times a week. Someone somewhere has managed to upset someone else, usually over a miscommunication. Alternatively, it will be an ex-boyfriend, girlfriend or spouse that feels they were done wrong. The offended party responds to the perceived offense by going onto various social networking sites and posting false, defamatory statements; Facebook is a popular choice for the vitriol. The victim of these accusations wants my assistance in getting the statements taken down.
I can do that, but at a cost. And while I sometimes take a case on a contingency basis (receiving a percentage of the amount recovered), most of the time such an arrangement is not workable since the primary goal of the action is to remove the defamatory materials, not for damages. An attorney cannot take a case on a contingency basis if there are no damages or if the defendant has no ability to pay. Indeed, in many instances an attorney should not take a defamation case on a contingency basis since that will then make the case about money instead of being about solutions.
Is there a solution for those who can’t afford representation? Continue reading
Another story illustrating the point I make here over and over, namely, that a statement must accuse you of something before it is defamatory.
Today a Federal Court in New York threw out defamation action against Rolling Stone Magazine. Rolling Stone had published an article about a coed named “Jackie” who contended that she had been raped by seven men at the Phi Kappa Psi fraternity house in September 2012.
Three members of that fraternity — George Elias IV, Stephen Hadford and Ross Fowler — sued for defamation, claiming that the article implied that there was an initiation ritual that required new members to rape a coed. The plaintiffs were not named or identified in the article, but since they were members of the fraternity, they alleged that was enough to cause them humiliation and emotional distress.
When the police later investigated, they could find no support for Jackie’s story, and Rolling Stone eventually retracted the story.
Claims of this sort are just too attenuated. In the first place, the judge concluded that “Viewed in the overall context of the article, the quotes cannot reasonably be construed to state or imply that the fraternity enforced a rape requirement as part of an initiation ritual or a pre-condition for membership.” But equally problematic, if the article does not mention any of the plaintiffs by name, then how can they claim that it accuses them of rape? Even it the article left no doubt that the fraternity has such a requirement, perhaps these individuals refused to participate.
I once received a call from a police officer, wanting to sue for defamation based on what a newspaper had said about police officers. He was fed up with all the cop bashing, and he never commits the acts that the article attributes to all police, so he wanted to sue.
Simply stated, your membership in a group won’t be sufficient basis to support a defamation claim, unless the publication specifically states that you committed the acts. Absent extraordinary circumstances, being a member of a group won’t give you standing for a defamation claim.
Ironically and tragically, the frat members caused far more damage to themselves than the Rolling Stone article ever would have. The attorney for these fraternity members should have explained what would result from this action. Had the members done nothing, then at worst, in the future when they mentioned that they were former members of this fraternity, they might on very rare occasions have been met with the question, “Isn’t that the frat that has a rape ritual?” They could have answered, “Rolling Stone published a crazy story about that, but it was false, and the magazine later apologized.” Now, they have forever attached their names to this story, and future prospective employers who do an internet search for their names will be presented with this rape story.
From my recollection, doctors were the first to try this nonsense. They would slip in a provision in all the intake paperwork, stating that the patient agrees not to post any negative reviews about the doctor, with a $500 penalty if the patient violates the clause.
These contract clauses gained more and more popularity. I came across one in the repair estimate I received from my Ford dealership.
Occasionally, I would receive a call from a doctor or some other business, asking me to write a letter to a customer, demanding that they take down a review based on such a contract clause. I was happy to demand removal if the posting was defamatory, but I would not agree to use the clause as a basis, because I found them so offensive.
Apparently the California Legislature found them offensive as well, and created Civil Code section 1670.8. This section makes it ILLEGAL to include one of these “you can’t review me” provisions in any contract. If a business includes such a provision in a contract, it can be hit with a penalty of up to $2,500, and $5,000 for each subsequent violation, even if it never seeks to enforce the provision.
If you encounter a contract with “you can’t review me” language, then contact me immediately. I’d love to take these to court.
Here is section 1670.8 in its entirety:
1670.8. (a) (1) A contract or proposed contract for the sale or lease of consumer goods or services may not include a provision waiving the consumer’s right to make any statement regarding the seller or lessor or its employees or agents, or concerning the goods or services.
(2) It shall be unlawful to threaten or to seek to enforce a provision made unlawful under this section, or to otherwise penalize a consumer for making any statement protected under this section.
(b) Any waiver of the provisions of this section is contrary to public policy, and is void and unenforceable.
(c) Any person who violates this section shall be subject to a civil penalty not to exceed two thousand five hundred dollars ($2,500) for the first violation, and five thousand dollars ($5,000) for the second and for each subsequent violation, to be assessed and collected in a civil action brought by the consumer, by the Attorney General, or by the district attorney or city attorney of the county or city in which the violation occurred. When collected, the civil penalty shall be payable, as appropriate, to the consumer or to the general fund of whichever governmental entity brought the action to assess the civil penalty.
(d) In addition, for a willful, intentional, or reckless violation of this section, a consumer or public prosecutor may recover a civil penalty not to exceed ten thousand dollars ($10,000).
(e) The penalty provided by this section is not an exclusive remedy, and does not affect any other relief or remedy provided by law. This section shall not be construed to prohibit or limit a person or business that hosts online consumer reviews or comments from removing a statement that is otherwise lawful to remove.