Internet 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.”

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.

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

How to Stop Defamation When You Can’t Afford an Attorney

Bankruptcy - Business Person holding an empty wallet

Is there a way to stop Internet defamation when you have limited funds to hire an attorney?

Here’s a call I get a few times a week. Someone somewhere has managed to upset someone else, usually over a miscommunication. Alternatively, it will be an ex-boyfriend, girlfriend or spouse that feels they were done wrong. The offended party responds to the perceived offense by going onto various social networking sites and posting false, defamatory statements; Facebook is a popular choice for the vitriol. The victim of these accusations wants my assistance in getting the statements taken down.

I can do that, but at a cost. And while I sometimes take a case on a contingency basis (receiving a percentage of the amount recovered), most of the time such an arrangement is not workable since the primary goal of the action is to remove the defamatory materials, not for damages. An attorney cannot take a case on a contingency basis if there are no damages or if the defendant has no ability to pay. Indeed, in many instances an attorney should not take a defamation case on a contingency basis since that will then make the case about money instead of being about solutions.

Is there a solution for those who can’t afford representation? Continue reading

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.

James Woods Demands Court Order To ID Twitter User Who Called Him A “Cocaine Addict”

Actor James Woods says a Twitter user who called him a “cocaine addict” has no right to demand anonymity.

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

The James Woods case presents a good illustration of the legal process and certain constitutional rights.

Someone on Twitter, using the pseudonym “Abe List” or AL for short, got into it with Woods, and let fly with a series of put-downs, referring to Woods as a Joke, clown-boy and scum. Counsel for Woods understood defamation law well enough to know that those claims are not offered as verifiable facts, and therefore cannot be defamatory.

But AL also called Woods a “cocaine addict”, and that is where his counsel drew the line. They filed what is called a DOE action, suing an unknown defendant for defamation. (Here is the actual complaint.) Once a DOE action is filed, the plaintiff can then subpoena the records (here, from Twitter) to determine the identity of the anonymous poster.

Here’s where things get interesting.

What many do not realize is that someone posting comments on the Internet has a constitutional right to remain anonymous. It hearkens back to the days of “pamphleteering”, when those disagreeing with the government would produce and distribute anonymous pamphlets. If the government could require that the identity of protesters be known, it could intimidate critics into silence.

Because of this constitutional right, if someone wishes to remain anonymous, they can oppose the motion anonymously, forcing the plaintiff to make a sufficient showing that the speech is defamatory, and therefore not entitled to protection.

That is just what occurred here. AL has gone to court and challenged Woods’ right to discover his identity.

“How do you appear anonymously in a court proceeding?”, you ask. It’s easy. You retain counsel, usually Morris & Stone, who moves to quash the subpoena on behalf of the person, using the pseudonym. The identity of the person is never revealed. (In a couple of cases, we have seen other counsel attempt this procedure, only to make the effort pointless when they accidentally identify their client in correspondence.) Continue reading

How Not to Write a Yelp Review

How to Write a Yelp Review
Picture a typical fight on the playground at an elementary school. One child gets mad at another because she lost at tetherball, so she screams, “I don’t like you and nobody else does either!” It’s not hurtful enough for the girl to say that she doesn’t like the other girl, she seeks to add credibility to her argument by speaking for the rest of humanity.

Some people never grow up. I get calls from potential clients, needing me to defend them against a defamation action for a review they posted on Yelp. A call I received today illustrates why these people find themselves being sued for defamation. Changing the facts to protect the confidentiality of the client, here is what happened:

The caller hired a contractor to add a room to her home. The contractor did his thing, but the caller wasn’t happy with the result. She then paid another contractor to come in and do the work the way she thought it should have been done. Then she sat down at her computer to tell the world via a Yelp review what she thought about the first contractor.

She wrote about her experience with the contractor, and why she was unhappy with the work he did. So far so good. I would defend to the death her right to post that review.

But like the girl on the school yard, a dry dissertation of the problems is just not stinging enough. Someone might still do business with this contractor, and she owes the world a duty to make sure that the no good, son-of-a-gun never gets another job. Continue reading

Can the Dead Be Defamed?

Defaming the DeadI don’t receive these calls very often, but they are heart wrenching when I do. I have received multiple calls over the years arising from television portrayals of deceased people. They typically arise from those “true detective” shows. An unsolved case is discussed, and the family of the prime suspect elects to point the finger at someone close to the case who has since died. A dead person is the perfect scapegoat, because he can’t defend himself.

As you can imagine, having the loving memory of a former, spouse, sibling and/or parent sullied by a false accusation of murder does not sit well with those involved. Their love-one is being defamed, and they call wanting to sue for defamation.

But consider the very basis of defamation. The damage that defamation causes is the loss of reputation AND the emotional distress that flows therefrom. We’ve all been taught not to speak ill of the dead, and no doubt it causes tremendous heartache for the family of the deceased when lies are told about him, but he isn’t here to suffer. This is why the law provides that you can’t defame the dead.

When I present this bad news to callers, inevitably it is followed up with the classic quantum of harm argument. Potential clients always look first to the harm that is being caused, and assume there must be a remedy.

“But these claims are destroying my life because now everyone thinks my deceased husband was a murderer. There must be something we can do.”

I understand this logic, and indeed it is seemingly embraced by the most fundamental of all legal maxims, “equity will not suffer a wrong to be without a remedy.”

The problem is the definition of “wrong”. If the law says that you can’t defame the dead, then the fact that you speak poorly of the dead does not make your speech defamatory, and you have thus committed no “wrong” in a legal sense. Thus, the fact that you are doing something that causes emotional distress to others does not mean that there is a basis for a legal action. Some vegans are no doubt very upset that there is so much meat being eaten around them, but they can’t sue because meat-eating is not a legal wrong. The harm suffered does not necessarily determine whether a wrong was committed.

Go here for a very interesting discussion of defaming the dead, with many historical examples.

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.