Defamation

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.”

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

Being a member of a group won’t 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 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.

Bill Cosby Sues Beverly Johnson for Defamation

“Bill Cosby filed a lawsuit Monday against supermodel Beverly Johnson, alleging she lied when she said the comedian drugged and tried to rape her at his New York home in the mid-1980s.

Cosby’s lawsuit says Johnson joined other women making accusations against him to revive her waning career and to help sell copies of her memoir.

The lawsuit alleges defamation and intentional infliction of emotional distress, saying Cosby and Johnson never spent any time alone in his house, he never drugged her and ‘her story is a lie.'”

Sourced through Scoop.it from: www.wmur.com

 

In an earlier discussion of Bill Cosby, I mentioned the problem of coming out and denying claims made by an accuser.

In the case of Bill Cosby, several women have come forward telling similar tales. Specifically, they allege that Cosby would drug and then rape them. Even though the statute of limitations on those alleged offenses may long have passed, Cosby affords those women with a potential cause of action if he comes out and denies the claims. By denying the claims, he is in essence calling them liars, which triggers a potential defamation action.

This action is the flip side of that coin. Cosby, of course, has the ability to sue for defamation, claiming that the accusations are false and defamatory. But this strategy comes at a cost. This lawsuit is against Beverly Johnson, but other women are making the same claim. Are we then to assume that the claims by the other women are not defamatory?

As the saying goes, “in for a dime, in for a dollar.” Cosby has now created a scenario whereby he must sue all of his accusers, lest he be viewed as being guilty of the claims by those he doesn’t sue.

Court tosses lawyer’s libel suit over ‘The Good, The Bad and The Ugly’

TORONTO – Ontario’s top court has tossed a defamation action by a lawyer over a book in which he is cited as saying he identified with the Mexican bandit from the movie “The Good, The Bad and The Ugly.”

In a written ruling Monday, the Court of Appeal sided with a lower court judge, who rejected the action from David Midanik against Betsy Powell in October last year, and ordered him to pay more than $100,000 in legal costs.

“In our view, this defamation action was ill-conceived,” the Appeal Court said.

Source: metronews.ca

Two lessons from this Canadian case. First, consider whether your colorful writing style is going to get you into trouble, and second that context is everything.

In this case, a lawyer penned a book about some of his legal experiences. He wrote about a case he prosecuted against a Toronto street gang, and stated that one of the defense attorneys was like Tuco Ramirez, a character from the film “The Good, the Bad, and the Ugly.” He paraphrased a line from the character, “I like big men because they fall hard.”

The defense lawyer in question took offense at this comment, and sued for defamation. He argued that by equating him with Tuco Ramirez, the author implied that he was a murderer, rapist, dishonest and sleazy.

The case was doomed to failure, both legally and conceptually.

When one quotes from a fictional character, that does not mean or even imply that the quote is meant to pull in all the traits of the character in question. If I’m doing a hockey story, and I show a player making a slap shot, with the caption, “Say hello to my little friend,” am I implying that the hockey player is a drug lord?

The trial court and Court of Appeal agreed with my interpretation, and dismissed the case. Under Canadian law, the loser pays, so this ill-conceived case (the court’s words) cost the thin-skinned attorney about 100,000 Canadian dollars, eh.

Firefighter pictured in sex scandal article loses libel claims against Daily News, appeals | Pennsylvania Record

Per the order of a federal judge, the libel lawsuit brought by a Philadelphia firefighter against the New York Daily News earlier this year has been dismissed, though court records indicate he has appealed that verdict.

Source: news.google.com

This was an interesting case that really could have gone either way, and well may be reversed on appeal.

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 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.

I would have anticipated that the defamation claim he filed would fail, but he also filed a claim for false light invasion of privacy, and that claim certainly had some merit.

Here is the jury instruction for false light (in California):

1802. False Light

[Name of plaintiff] claims that [name of defendant] violated [his/her] right to privacy. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of defendant] publicized information or material that showed [name of plaintiff] in a false light;

2. That the false light created by the publication would be highly offensive to a reasonable person in [name of plaintiff]’s position;

3. [That there is clear and convincing evidence that [name of defendant] knew the publication would create a false impression about [name of plaintiff] or acted with reckless disregard for the truth;]

[or]

[That [name of defendant] was negligent in determining the truth of the information or whether a false impression would be created by its publication;]

4. [That [name of plaintiff] was harmed; and]

[or]

[That [name of plaintiff] sustained harm to [his/her] property, business, profession, or occupation [including money spent as a result of the statement(s)]; and]

5. That [name of defendant]’s conduct was a substantial factor in causing [name of plaintiff]’s harm.

[In deciding whether [name of defendant] publicized the information or material, you should determine whether it was made public either by communicating it to the public at large or to so many people that the information or material was substantially certain to become public knowledge.]

Defamation is an intentional tort, but false light can be established with a showing of negligence. A jury could certainly find that it is negligent to post a picture of a random firefighter in an article about a sex scandal, and that an average reader might assume that the firefighter must in some way be involved with the scandal.

But the judge in Pennsylvania disagreed, and threw out all of Cheney’s claims. The judge found that the photo provided sufficient context such that a reader would know that no link between the photo of Cheney and the sex scandal was intended.

This is an important factor in any defamation (or false light) claim. The fact that a statement or photo can be interpreted in a defamatory sense is not enough. The statement must be given a reasonable interpretation.

Gay Lawyer Takes Stand in Defamation Suit

The gay attorney suing Anapol Schwartz for defamation took the stand Tuesday to outline his departure from the firm and his decision to accept a job at Raynes McCarty…

Source: www.thelegalintelligencer.com

Quite the case. The law firm associate, Jeffrey Downs, was planning to make a lateral move from Anapol Schwartz to Raynes McCarty, but allegedly his former firm informed the new firm that Downs was preparing to sue the former firm for discrimination. Raynes McCarty then revoked its offer.

Ironically, Downs is now suing Raynes McCarty for discrimination and defamation. Presumably, if the allegations are true, the firm revoked the offer because it feared that Downs was litigious and wanted to avoid being sued, but in the process bought itself a lawsuit in any event.

Equally ironic, before leaving Downs had sent an email to his firm, seeking eight months of severance pay. That is the email that the firm is pointing to to claim that Downs was threatening litigation before his departure, which would make the warning to the new firm absolutely true.

Former 49er Ray McDonald sues rape accuser for defamation

“Former San Francisco 49ers defensive end Ray McDonald has gone on the offensive, filing a lawsuit Monday against the woman who accused him of sexual assault in December, as a way to try to clear his name in hopes of restarting his career.”

Source: www.usatoday.com

This will be an interesting case to follow.

McDonald was accused of rape after spending the night with a woman me met at a San Jose bar. She claimed that while partying with McDonald at his home, she bumped her head during a hot tubbing incident, and did not recall anything that followed until she woke up naked in his bed the following morning. She spent the day with him, but sought medical treatment the next day. McDonald never denied that he had sex with the woman, but said it was consenual.

For reasons I have explained here before, reports to the police are privileged and will not support a defamation action. If that is the basis for the claim, this case will soon be gone on an anti-SLAPP motion. But if the woman alleged rape outside of that context, then McDonald’s case will survive.

[MAY 23, 2016 UPDATE:] The attorney for the woman brought an anti-SLAPP motion, based on the fact that the rape was reported only to the police. As I predicted, since McDonald was unable to identify anyone other than the police who received the allegedly defamatory claim, the anti-SLAPP motion was granted and McDonald’s case was dismissed.

Reports to the police are privileged, and can never form the basis of a defamation claim. This case makes clear why that MUST be the rule.

For sake of argument, let’s say McDonald did rape the woman. (Her story seems a little dubious, but let’s assume it was true for sake of this discussion.)

McDonald, who probably has some money from his NFL days, wants to silence this woman and hopefully get her to drop the charges. So he sues her for defamation, knowing that she will have to spend tens of thousands of dollars fighting against that legal action. She may very well get worn down by the time and expense of the legal action, and agree to drop her criminal charges in exchange for McDonald dropping his civil action.

We can never permit criminal defendants to use civil proceedings as a means to intimidate witnesses, and that is why reports to the police are privileged.

That does not leave McDonald without a remedy if the claims were false. If he is found not guilty in the criminal trial, he can then sue his accuser for malicious prosecution, if he can show that the claim was made with malice. Malice can be shown by proving that the woman could not have believed what she claimed.

Defamation in False Online Review

In a case brought by a US law firm in respect of a defamatory allegation on the firm’s Google Maps profile, it was held that the posting of a false online review by an English poster amounted to defamation deserving of substantial damages. In The Bussey Law Firm PC & Anor v. Page [2015] EWHC 563 (QB), the offending post read as follows:

 

‘Scumbag Tim Bussey, pays for false reviews, loses 80% of his cases.

Not a happy camper’

 

Source: www.scl.org

bowling ball knocking down false pins
A case out of England that is interesting for a couple of reasons.

When I mention that I represent clients who are suing for false online reviews, I sometimes get a shocked look. People feel that reviews should be off limits, since they are matter of opinion.

In a perfect world that would be entirely true, but as this case illustrates, a review is not a matter of opinion if it is a complete fabrication by someone who has never done business with the company. Here, the defendant charges $5 to write fake reviews. The reviews can be good or bad, depending on what the purchaser wants. Keep that in mind whenever you are reading on-line reviews.

The damages awarded are also interesting. No doubt, the plaintiff could not show any direct loss of business because of this one bad review, but the court nonetheless awarded the maximum amount permitted under the law. One’s reputation has value, and the court felt a stiff damage award was appropriate for damaging the reputation.

Fake Social Media Account by Police Allowed Without Warrant

Keep your friends close, and your Instagram friends even closer.   One of your online friends might be the police and a search warrant fis not needed to befriend you on social media. A US District …

Source: www.thenationaltriallawyers.org

To quote Bugs Bunny, “What a maroon!”

When a string of burglaries occurred, the police had a pretty good idea who it might me. They found the suspect’s Instagram account, and asked (under an undercover account) to become “friends”. The suspect agreed.

The suspect then proceeded to send out pictures of all the stolen property to his “friends”, which now included the police. Busted.

The suspect sought to exclude the evidence, claiming the police needed a search warrant, but the court disagreed.

“Where Facebook privacy settings allow viewership of postings by “friends,” the Government may access them through a cooperating witness who is a “friend” without violating the Fourth Amendment” as in the case of U.S. v. Meregildo (883 F. Supp. 2d 523, 525 (S.D.N.Y. 2012)) where a Facebook “friend” was a cooperating witness and allowed law enforcement to access Meregildo’s posts regarding his violent acts and gang activity.

Aaron Morris

Morris & Stone, LLP

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

(714) 954-0700

Email Aaron Morris

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

Section 6158.3 Notice

NOTICE PURSUANT TO BUSINESS & PROFESSIONS CODE SECTION 6158.3: The outcome of any case will depend on the facts specific to that case. Nothing contained in any portion of this web site should be taken as a representation of how your particular case would be concluded, or even that a case with similar facts will have a similar result. The result of any case discussed herein was dependent on the facts of that case, and the results will differ if based on different facts.