How Not 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.
She adds to the review that she has spoken to others who have done business with the contractor, and everyone of them has had problems, most of them having to sue the contractor to get their money back. Further, the contractor that came to fix the problems at her house said he is very familiar with this contractor and has had to fix his work many times. Finally, she adds that she has contacted the Contractor’s License Board, which also confirmed that there have been many complaints against the contractor.
Wow, that is one lousy contractor. If I had read the Yelp review and saw that one customer had a bad experience with this contractor, I’d probably still use him if the other reviews were positive. But if you’re telling me that there are many dissatisfied customers out there, that other contractors know he is bad, and that even the Contractor’s License Board is looking into him, then I’ll find someone else.
And that’s what makes it defamatory. When you write that sort of review, you are representing to the world that the universe of dissatisfied customers goes far beyond you. It is like posting ten negative reviews on behalf of others. Any claim that it is “just my opinion” goes out the window, because now you have published a verifiable fact — that others are also unhappy with this business.
The caller swore that everything she wrote was true. That’s good, because truth is an absolute defense to defamation, but since it is a defense, it is the burden of the defendant to prove the truth of the statements.
So I asked her, “can you identify all the other people you spoke to who have done business with this contractor?” She responded that she doesn’t know any names, “it was just some people around the neighborhood.”
“Will the contractor who fixed the problems confirm that he told you that he has had to fix the other contractor’s work ‘many times’”?, I asked. She responded that it just came up while he was working, and she doubts he will recall the conversation.
“How about the Contractor’s License Board. Do you know the name of the person to whom you spoke?” No, she didn’t write down that information.
“But I thought this was America. Everything I said was true and I should be able to post a review on Yelp without being sued,” she adds.
You can, dear caller, but America requires that you be able to back up what you say. As I always explain, anyone can sue anyone for anything; the issue is whether you can successfully defend against an action. To be able to do that in the defamation context, you must be able to prove the truth of what you say.
It’s that simple. This goes beyond merely publishing what is true, you must be able to prove it. You are protected if you limit yourself to stating your opinions, but as soon as you state something as a verifiable fact, be ready to back it up.
“The contractor who built my room addition was terrible and I was very unhappy with the work” is protected opinion speech. “The contractor who built my room addition was terrible and did not do the work up to Code” is not protected opinion because the fact of whether the work was up to Code can be checked. If you can prove the work was not up to Code, you’re good. If not, you’re toast.