Aaron Morris

WHAT TO DO WHEN SOMEONE HAS POSTED A FALSE YELP REVIEW ABOUT YOUR BUSINESS

Since free speech and internet defamation are our primary practice areas, and since it is a rather niche practice, we get many calls and emails from businesses that have been defamed by a false Yelp review. We also get may calls from those who have posted Yelp reviews and have been threatened with legal action, but that is an article for another day. For purposes of his article, I will discuss . . .

WHAT TO DO WHEN SOMEONE HAS POSTED A FALSE YELP REVIEW ABOUT YOUR BUSINESS

I wrote a similar article two years ago, but I want to update and expand on what I said previously, attempting to provide a more all encompassing review of your options when dealing with a false Yelp review.

This only applies to verifiably false and defamatory reviews.

I repeat this message over and over again on this blog, but so as to make this a standalone article, let me express again that if someone writes a critical but honest Yelp review about your business, I won’t help you to get rid of it. Nothing to see here. Move along. The marketplace of ideas is not promoted with defamatory speech, but neither is it promoted with censorship.

Note also that a review isn’t actionable just because it is false. If someone says you graduated from Arizona State University, but you really graduated from the University of Arizona, they have told a lie about you, but it isn’t defamatory because the lie doesn’t (necessarily) cast you in a bad light. Further, the statement must be verifiably false, and can’t be an opinion. If a patient writes that a doctor has a “terrible bedside manner”, that term is too imprecise to ever prove that it is false. It is a matter of opinion.

But a significant percentage of Yelp reviews are false and defamatory. We have rooted out businesses with employees who are tasked with the job of writing false reviews about competitors. Even down to the individual level, it is often the case that someone will have an honest beef with a business, but when it comes time to sit down and write the review, they feel compelled to embellish.

My favorite example as of late was the plastic surgeon we represented. The woman was not happy with some work he had performed. Fine. If she had taken to Yelp and written that she was unhappy with her face lift, I would have defended her right to post that review. She is entitled to her opinion. But she added to her review the tale of how, when she went to visit a medical malpractice attorney, there were four other women sitting in the attorney’s office. They got to talking, and it turned out that all five of them were all there to sue the same doctor! My god, the man must be a butcher. If there were five patients in that one lawyer’s office on just one day, how many women must be in other lawyers’ offices. She added that she learned from the attorney that this doctor was under investigation by the medical board, and would shortly be losing his license.

But could she identify a single one of the other women? Of course not. Could she even name the medical malpractice attorney who she supposedly visited? Of course not. Had anyone ever actually told her that the doctor was being investigated, or that he was about to lose his license? No. She conceded that it was all made up, as was most of the review. She was so angry at the doctor when she was writing the review that she wanted to make sure no other patients went to him, and felt like an evenhanded review about her experience wouldn’t accomplish that task.

It is this sort of review – one containing verifiably false facts that charge the business with illegal, immoral, unethical, or unprofessional conduct – that can be challenged and removed from Yelp. What follows is a very in-depth review of what you can do when someone posts that sort of false and defamatory review.

First, allow me to get some preliminaries out of the way, and then I’ll move onto the solutions for false Yelp reviews.

Where does Yelp get off even listing my business? I never authorized it to do so! Can I force it to remove my business?

I get asked this question all the time, and the answer is no, so let’s get it out of the way. Callers want to retain me to force Yelp to remove their business listing, to prevent anyone from posting comments about the business. The callers think there is some sort of right of privacy that prevents a website from discussing their business unless the business has authorized it. Would you want to live in a world where you can’t offer your opinions about a business, good or bad, unless the business authorizes you to? That would certainly be a tremendous boon for unethical businesses.

So, no, Yelp can’t be forced to remove your listing. Yelp is free to set up a page for every business in existence so that people can discuss any business. And no, it doesn’t violate any trademark or copyright for them to do so.

Can I sue Yelp directly for the false review?

The answer to this question seems to be pretty well known by now, but I still get calls about it. No, under the Communications Decency Act (“CDA”), a website cannot be sued for information posted by a third party. When the internet came along, Congress decided to favor open discussions on the web. Congress wanted website operators to be able to offer the opportunity for website visitors to post comments. It recognized that if website operators could be held liable for the comments posted by visitors, the swift and immediate action would be that no websites would offer public forums. Congress created the CDA, which immunizes website operators from ANY liability for statements posted by third parties. That doesn’t change, even if you notify the website that something posted there is defamatory.

In a minute I’ll be discussing the case of Hassell v. Bird, in which the court ordered Yelp to remove a defamatory post. The case is currently being considered by the California Supreme Court, which may hold that Yelp can be named in an action which seeks removal of a defamatory post, for injunctive purposes only, but that remains to be seen.

OK, with the preliminaries out of the way, let’s see what you can do about a false and defamatory Yelp review.

Step One – Decide if you really need to do anything.

A business with 50 positive reviews will likely not be hurt by a single false review. Everyone understands there will always be trolls and background noise, and that no business can make every single customer happy. But a business with only five reviews is in a much different situation. There, a bad review will likely appear on the first page of Yelp’s results, and depending on the nature of the business, many potential customers will simply elect to move on rather than to take a chance on a business with a really bad review.

Don’t let your ego take over. It may be a real source of pride that you had nothing but five star reviews, and this one false review is driving you crazy, but sometimes it’s best to listen to Queen Elsa and Let It Go.

Your better solution may be to encourage your customers to post more reviews, in order to water down the false review, while perhaps pursuing some of the additional steps that follow.

Step Two – Try to get Yelp to remove the review by showing that it violates its Terms of Service or Content Guidelines.

This is not likely to succeed, but it is a reasonable step, and its chances of success depend on the wording of the review. But first, a little background.

Yelp is not your friend. Yelp’s business model depends on negative reviews, so they are not incentivized to remove false reviews. To give you an idea how far Yelp will go to maintain false reviews, in a recent case (Hassell v. Bird), after determining at trial that a review posted on Yelp was false and defamatory, the judge ordered Yelp to remove the review. Yelp certainly wants only honest reviews, so it must have been stoked to learn that a false review had been discovered so it could remove it, right? Au contraire mon frère.

Yelp appealed the matter to the California Court of Appeal, arguing that it should not be compelled to remove false reviews. After the Court of Appeal ruled against Yelp, it appealed it to the California Supreme Court. That case is now pending. Yes, Yelp has literally taken its right to maintain false and defamatory reviews all the way to the Supreme Court, even though its own Terms of Service state that defamatory reviews are prohibited.

So, don’t think for a second that you will be able to go to Yelp with evidence of a false review, and Yelp will investigate. In a perfect world, Yelp would have some sort of reviewing body to consider such evidence, but I recognize that isn’t feasible.

Let’s say you are an electrician, and after doing a perfectly wonderful job of installing a 220 volt line to a homeowner’s new laundry room, they trash you online because the homeowner’s Uncle Albert told him your work was not up to code. But you have proof that it was up to code, as evidenced by the sign-off from the city and all the receipts you have from Home Depot showing you bought the proper gauge of wire and other parts. You send your evidence to Yelp, assuming they will consider the matter.

How would Yelp review that claim? The fact that the city signs off on work is never proof that it was up to code. The inspector might have missed something. The receipts you have from Home Depot could be for parts from another job. Even if you provided a report from an independent electrician, stating that the work was perfect, how would Yelp test the veracity of that report? You may have paid your Uncle Buck to prepare a false report.

The only way Yelp could confirm your claim with any certainty would be to hire its own electrician, and even that presents a problem. Sometimes even experts can’t agree. I am defending a Yelper right now (while Yelp is evil, the people who post reviews are not necessarily so and sometimes need to be defended), who posted a completely honest review about his accountant, stating that the accountant made a mistake on his taxes. The accountant sued him for defamation, claiming he had not made any mistakes. Our expert said the accountant screwed up, and their expert said he didn’t. Back to our electrician, even if the expert hired by Yelp determined that the wiring was fine, that doesn’t necessarily make is so. Only a vigorous review of all of the facts via the legal process can come close to determining whether the work was up to code.

Obviously Yelp cannot hire an expert every time someone claims a review is false, so we can’t really fault them for failing to do so. The situations that frustrate me, though, are when Yelp turns a blind eye toward obviously false reviews.

For example, sometimes businesses will post multiple fake reviews about a competitor. These situations are usually pretty easy to spot, because the reviews will all be posted on the same date, from accounts that have posted little or no other reviews. Typically, all the accounts will have been created using the same computer and internet service provider, so they will all have come from the same IP address. It would take Yelp about one minute to check to seek if the reviews were all posted from the same IP address. Heck, it wouldn’t even take them one minute because they could build into their algorithm to flag multiple reviews from the same IP address for evaluation, but they are not interested in doing so. When I have asked Yelp to do so for clients, they have responded that since there is the chance that multiple reviewers just happened to go to the same internet café on the same date to review the same business, Yelp can’t be certain they were all posted by the same person. (Yelp’s attorney didn’t put it in those exact terms, but that was the ridiculous gist.)

Look at the entire mindset of Yelp. When you read a review on Yelp, you are given three choices to rank the review. You can rank it as “useful”, “funny”, or “cool”. It’s as though every review has merit, and all you can do is promote them. Unless the business has a Yelp business account, it can’t respond to the review. On Amazon, by comparison, you are asked whether or not the review was helpful, anyone can comment on the review, explaining why it does not ring true, for example, and following every review is a link to “report abuse”. Best Buy, Walmart, and Newegg are all set up in similar fashion.

Why doesn’t Yelp afford the ability to respond to a review? Isn’t that kind of a no-brainer; to create a dialog between the reviewer, community and the business? Again, it comes down to Yelp’s business model. A business must have a Yelp business account in order to respond to reviews (even to say thanks for a good review).

But with all that said, even though Yelp will fight to the death to maintain a defamatory review, it is sometimes open to removing reviews that violate their Terms of Service in other ways.

Here are the restrictions listed in Yelp’s Terms of Service:

You agree not to, and will not assist, encourage, or enable others to use the Site to:

  • Violate our Content Guidelines, for example, by writing a fake or defamatory review, trading reviews with other businesses, or compensating someone or being compensated to write or remove a review;
  • Violate any third party’s rights, including any breach of confidence, copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right;
  • Threaten, stalk, harm, or harass others, or promote bigotry or discrimination;
  • Promote a business or other commercial venture or event, or otherwise use the Site for commercial purposes, except in connection with a Business Account and as expressly permitted by Yelp;
  • Send bulk emails, surveys, or other mass messaging, whether commercial in nature or not; engage in keyword spamming, or otherwise attempt to manipulate the Site’s search results or any third party website;
  • Solicit personal information from minors, or submit or transmit pornography; or
  • Violate any applicable law.

In addition to these Terms of Service, Yelp also publishes Content Guidelines, which are as follows:

  • Inappropriate content: Colorful language and imagery is fine, but there’s no need for threats, harassment, lewdness, hate speech, and other displays of bigotry.
  • Conflicts of interest: Your contributions should be unbiased and objective. For example, you shouldn’t write reviews of your own business or employer, your friends’ or relatives’ business, your peers or competitors in your industry, or businesses in your networking group. Business owners should not ask customers to write reviews.
  • Promotional content: Unless you’re using your Business Owners Account to add content to your business’s profile page, we generally frown upon promotional content. Let’s keep the site useful for consumers and not overrun with commercial noise from every user.
  • Relevance: Please make sure your contributions are relevant and appropriate to the forum. For example, reviews aren’t the place for rants about a business’s employment practices, political ideologies, extraordinary circumstances, or other matters that don’t address the core of the consumer experience.
  • Privacy: Don’t publicize other people’s private information. Please don’t post close-up photos or videos of other patrons without their permission, and please don’t post other people’s full names unless you’re referring to service providers who are commonly identified by or commonly share their own full names.
  • Intellectual property: Don’t swipe content from other sites or users. You’re a smart cookie, so write your own reviews and take your own photos and videos, please!
  • Demanding payment: Beyond simply asking for a refund to remedy a bad experience, you should not use removing or posting your review as a way to extract payment from a business, regardless of whether you’ve been a customer.

Does the Yelp review make clear that the person never actually patronized the business?

Although it’s not specifically listed as a content guideline, it seems that the most common basis that businesses are able to get reviews removed is when it is clear from the content of the review that the poster never actually visited the business.

For example, a doctor who does Botox injections might get a one-star review that states, “Only a crazy, vain person would allow a doctor to inject poison in their face. Accept your frown lines!” That person is not offering any review of the business, but rather is just venting on the nature of the business. Again, however, don’t think Yelp will consider your evidence that the person was never a customer. That fact must be obvious from the wording of the review.

Also, sometimes Yelp is open to removing (and when I say “removing”, more often Yelp just moves the review to the filtered section, so it is still accessible) a review that is blatantly intended to promote a competitor. Something like, “Their pizza is really greasy. You should go to Mario’s Goodtime Pizza at 123 Main Street, where the pizza is much better, and just $7.99 for a large, two-topping on Tuesdays, and happy hour is from 5 to 7 every day.”

Is the review threatening or invasive?

Even Yelp has its limits, and it may remove a review that is obviously posted for retaliatory purposes. These reviews contain little or no information about the business, but rather are attempts to hurt the business or its owners. It may say something like, “Don’t do business with this company. The owner is a home wrecker. After 18 years of marriage, she had an affair with my husband. If you live near her home at 123 Main Street, you should drop by and tell her what you think about sluts.”

Can I sue Yelp for failing to follow its own Terms of Service and/or Content Guidelines?

Not a terrible question, but for a number of reasons, the answer is no. From a conceptual standpoint, when a website posts Terms of Service or Terms of Use, those are the rules it is imposing on its users, not itself.

But even if you could make the argument that Yelp’s Terms of Service create an enforceable agreement, then you are bound by ALL the terms. Yelp’s Terms of Service state that defamatory speech is prohibited, but they also contain the following language:

We are under no obligation to enforce the Terms on your behalf against another user. While we encourage you to let us know if you believe another user has violated the Terms, we reserve the right to investigate and take appropriate action at our sole discretion.

Step Three – Decide if you want to engage with the defamer.

Assuming you know the identity of the defamer, you need to decide if communication will do any good. In the case of an honest, but negative, review, it makes good sense to contact the customer and ask, “What can we do to make this right?” But in the case of a false review, you are dealing with a person who has already shown they lack integrity, since they lied about your business. Too often, that type of person will use the communication against you, returning to Yelp to state that you are now harassing them.

Step Four – Respond with a letter from an attorney.

If you feel that the review must be addressed, a letter from an attorney can be very effective at removing false reviews. This presumes, of course, that the review is from a real customer, and that you can identify the customer. For the reasons already stated, I won’t send a letter to a Yelper, if the review is just opinion. The point of a letter from an attorney is to demand removal of the false review, and I can’t make such a demand if the review is not false.

But if the customer posted a verifiably false review, then a letter can be effective IF done properly. Unfortunately, most attorneys erroneously believe that a cease and desist letter needs to be threatening and adversarial. They feel like the point of the letter is to intimidate the Yelper into removing the post with threats of fire and brimstone.

The far more effective approach I employ is to let the Yelper know that I just want to do what’s right. If the client is telling me the review is false, but it is really true, then I want to know so that I can tell the client to go no further. On the other hand, I let the Yelper know that truth is a defense, so the burden is on the Yelper to prove any statements. For example, in one case the Yelper posted that no one should eat at a particular restaurant, because it was so dirty that it had been shut down by the Health Department, and was currently operating on a provisional Class C rating. I advised the Yelper that information was contrary to all I had been told and had found out through my investigations. I politely asked for the source of the information. The review was taken down that same day.

Step Five – Decide if you want to pursue legal action.

If your efforts to get Yelp to remove the review were unsuccessful, and if the Yelper won’t remove the false review, or you don’t know his identity to make the request, then legal action will be necessary. In order to subpoena the information necessary to identify the Yelper, a complaint must be filed. It is the complaint that provides the subpoena powers. It is usually necessary to first subpoena from Yelp the IP address used to post the false review, and then to subpoena the customer information from the Internet Service Provider that owns that IP address.

Do I need to go through the subpoena process if I know the identity of the person who defamed me?

The plaintiff in an action always has the burden of proof. If you are going to sue the person who defamed you, you will have the burden of proving the identity of the defamer. You may be 100% sure that you know who posted the review, but if the person denies it, what evidence will you be able to prove that he is the one?

People get very creative in their lies when their identity is revealed. In one case, we found that the defamatory posts about our client had been created from the internet account of a terminated employee. He claimed that it just so happened that on the day the review was posted from his home, he had invited a transient to spend the night, and had allowed him to use the computer. He had told the transient about being fired, so he surmised that the transient must have posted the bad review out of anger over the way the employee had been treated. Yeah, the court didn’t buy it either.

It all comes down to the evidence, and whether a trier of fact would determine that it is more likely than not that the defendant is the defamer. If the defamer has corresponded with you, confirming that he posted the review, you probably won’t need to go through the subpoena process.

Just learning the identity of the Yelper is often enough to resolve the matter. He posted the review, believing he would remain anonymous, but when it is discovered that he has never been to the business and only posted the fake review because his boss told him too, there is little incentive to carry on with the lie.

Will I have to take the case all the way to trial?

Probably not, but it depends on your goals. If you just want the false review removed, just serving the complaint usually accomplishes that goal. There may be some resistance at first, but soon the defendant realizes that there is no justification or defense for what he did, and wants to settle.

If your goal is to recover the damages you suffered as a result of the defamation, then you can anticipate that the case will go much further. No one wants to write a check without a fight. It still probably won’t go to trial – fewer than 15% of cases go all the way to trial – but it may not settle until the eve of trial.

Step Six – Compel Yelp to take down the review.

Until recently, the courts had held that, pursuant to the Communications Decency Act (CDA), Yelp could not be compelled to take down anything posted by a third party. Now, thanks to the holding in Hassell v. Bird, if a court concludes that a Yelp review is false, in conjunction with ordering the Yelper to take down the review, it can also order Yelp to do so, in the event the Yelper defies the order.

Note, this does not mean that the victim of defamation can sue Yelp directly. The CDA still prevents any direct lawsuit against a review site for reviews posted by others. But now with the authority of Hassell v. Bird, Yelp can be included in the take-down order.

If you are victimized by a verifiably false review on Yelp, where the statements are verifiably false, and you decide to take action to have it removed, call Morris & Stone at (714) 954-0700.

A very alternative approach – Mount your own counter-attack.

I don’t know if I can recommend this technique, since it may get you sued, but I like the poetic justice it affords.

More and more often I am receiving calls from potential clients, wanting me to review the information they have posted online. Since Yelp won’t offer any relief from a false review, the clients have taken matters into their own hands and either posted a review about the defamer’s own business on Yelp, or created a website devoted to the defamer.

For example, a dentist gets a false review from one of his patients, who was perfectly happy with the work, but is using the bad Yelp review in an attempt to extort a refund of the money paid by her dental insurance (it happens all the time, to the point that I think some people get dental work done only because they see it as a source for cash). From his dealing with the patient, the dentist knows that the patient owns a dog grooming business, so he trashes her as well, hoping to create leverage whereby they both agree to remove their reviews.

This technique is unacceptable, unless you happen to have had bad service from the customer. My momma always told me that two wrongs don’t make a right, so I can’t get behind lowering yourself to the level of the defamer, and lying about his business like he did yours. The circumstance where the defamed business owner just happened to have had a bad experience with the defamer’s business would be extremely rare.

But there is a related approach that has some appeal, and I’ve seen it applied successfully.

I recently spoke to a landscape architect (who authorized me to share this story) about what had probably started out as an innocent miscommunication with a potential customer. The customer had called the architect, seeking an appointment. Right off the bat he was put off by the fact that architect said he would charge to create a landscaping plan, but decided to go with him. He asked when they could meet, and the architect said, “let’s chat on Tuesday.” The architect meant that to mean, “call me on Tuesday and we’ll pick a date and time”, but for some crazy reason the customer took it to mean, “I’ll be there on Tuesday,” which made no sense at all since no time was discussed.

So Tuesday comes, the architect never shows, so the customer takes to Yelp to trash him, claiming he waited the entire day for the architect to show, and as a result had to miss a wedding, Bar Mitzvah, and his admission to the Royal Order of the Water Buffalo, or some such nonsense. He added that the architect was completely unethical because he charges to create landscaping plans. When we checked the customer’s Yelp profile, we found that he almost exclusively posts this sort of flaming review. He apparently gets off on harming businesses. The architect contacted the customer to see if they could work it out, but it was clear that he had no interest in an amicable resolution.

Well, the customer had a relatively unique name; let’s call him Baruk Barinda. So the client buys the domain, barukbarinda.info, and creates a website about him, disclosing some entirely accurate and truthful facts Barinda would probably not want to have public, and how he is someone employers and customers should probably avoid given his bizarre behavior on Yelp. Now, anyone who Google’s “Baruk Barinda” will see this website about him in the number one position.

I have seen this technique before, and people tend to take it way too far. They dox the person with malicious intent, publishing their home and work addresses, telephone numbers, social security number, etc. In this case, the architect kept it completely above board. Everything was true and did not step over the line into doxing. It was basically, “Baruk Barinda stated in a Yelp review that I am unethical. Let me tell you a little about HIS ethics.”

Being a member of a group won’t necessarily give you standing for a defamation claim

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 often 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.

The fraternity itself might have a good claim, and if the membership is small enough that a reasonable argument could be made that it damaged the reputation of these three members, then they could have a claim as well.

By way of example, I once received a call from a police officer, wanting to sue for defamation based on what a newspaper had said about the police officers in his community. 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.

Context is everything. If the article stated that “every police officer on the Springfield police department is guilty of using excess force,” then the argument could be made that it is directed at this individual officer. But if the article stated that “more police officers on the Springfield police department are guilty of using excess force than any other department,” then it can’t reasonably be argued that the statement identifies any particular officers. Simply stated, your membership in a group won’t be sufficient basis to support a defamation claim, unless the publication specifically states or implies 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 probably 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.

[UPDATE – June 13, 2017]  Rolling Stone agreed to settle an action brought by the fraternity for $1.65 million. The frat has originally demanded $25 million, but settled for this lesser amount, giving “a significant portion” of the proceeds to charities related to fighting sexual assault.

[UPDATE – September 19, 2017]  The 2nd U.S. Circuit Court of Appeals reversed the dismissal of the action brought by fraternity members George Elias IV, Ross Fowler, and Stephen Hadford, finding that, given the small membership of the fraternity, they may be able to successfully show that the Rolling Stone article individually damaged their reputations.

Another Example of How Facebook Can Kill Your Lawsuit

banana peel

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.

Facebook Postings Can Kill Your Personal Injury Case

Private investigator stakeout photo documentation

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.

You CAN Remove False, Defamatory Reviews from Yelp

Yelp love hateA 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.

Yelp for a priceMy 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.

Continue reading

Proof Positive that You Need a Good Defamation / Anti-SLAPP Attorney


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

How to Remove False and Defamatory Glassdoor Reviews

Glassdoor
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.)

Like any review site, Glassdoor is protected by the Communications Decency Act (CDA) from any defamation claim for reviews posted by others, but Glassdoor does have a review process, and will remove reviews that it finds do not comply with its terms of use. In working with Glassdoor’s legal counsel, I have found a willingness to review and remove posts without legal action, if a sufficient showing of defamatory content can be made. With the recent Court of Appeal opinion holding that review sites can be ordered to take down defamatory posts, and that such orders do not run afoul of the CDA, Morris & Stone can now compel Glassdoor to remove defamatory posts, but Glassdoor already had a policy of respecting court decisions which found that posted content was defamatory. This is a policy all review sites should follow, and kudos to Glassdoor for doing so voluntarily.

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.

Morris & Stone Case Creates Important Internet Defamation Authority

Super hero with computer circuit

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.

Yelp Ordered to Remove Defamatory Posts

False Yelp Review

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

California Prohibits “You Can’t Review Me” Contracts

no criticism contractsFrom 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.

Aaron Morris

Morris & Stone, LLP

Tustin Financial Plaza
17852 17th St., Suite 201
Tustin, CA 92780

(714) 954-0700

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View Aaron Morris, Trial Attorney and Partner at Morris & Stone, with emphasis on Free Speech and Defamation Law.

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