Although founded almost a decade ago, Glassdoor’s defamation problems seem to be a more recent phenomenon. We did not begin receiving calls about defamatory Glassdoor reviews until about two years ago.
In case you are unfamiliar with the site, Glassdoor seeks to be an online community regarding companies and employment. On the site you can find job listings, salary stats, and employee reviews regarding the companies at which they work or worked.
But like all review sites, there are those who use Glassdoor as a means to post false reviews about competitors, or for revenge purposes by falsely trashing a company that terminated the “reviewing” employee.
Again, I always feel compelled to explain the nature of the reviews of which I speak. I will fight to the death for the right of an employee to post an honest review about the terrible experience he had with an employer. But when I talk about false reviews, I am speaking of reviews where a competitor purports to be an employee and makes false statements about the company, or where an actual employee publishes verifiable lies about the company, as opposed to mere opinions. For example, in a recent Glassdoor case we handled, the employee stated in his review that the company is always late in issuing paychecks to the employees. The company had never been late with payroll.
Removing false Glassdoor reviews.
To its credit, Glassdoor is one of the more honorable review sites. Before posting a review, the user must attest that they were or are an employee of the business in question, and their email address is validated. (Email validation does little to stop someone bent on posting defamatory posts, because they can easily create an email account, but at least it provides one more hoop for the defamer to jump through.)
As with most review sites, if you are an employer and find yourself burdened with a false review on Glassdoor, your first line of attack should be to ethically encourage positive reviews. The internet community understands for the most part that no matter how wonderful a company/employer, there will be some background noise created by trolls. But if you are faced with truly harmful fake reviews, and need them removed from Glassdoor, give Morris & Stone a call.
Jones Day, the third largest law firm on the planet, is focusing their weighty legal acumen and collective wrath upon the head of one lone Detroit-area blogger who dared to poke serious fun at their activities in the Detroit bankruptcy proceedings. Also found in the blogger’s sardonic cross hairs is one of the firm’s former associates, Kevyn Orr — aka, Detroit’s Emergency Manager — both parties are being scorched in parody by the outspoken blogger over their joint roles in looting the already decimated city coffers.
Business clients call to ask me to examine some review that was posted on-line, wanting to sue for defamation. When I advise them that the comments are permissible statements of opinion and not actionable defamation, the next question is almost always, “but can you at least send a cease and desist letter to make him take it down?”
No, I can’t, because it would be a toothless threat designed to intimidate someone out of exercising their right of free speech.
Apparently the law firm of Jones Day does not operate under the same standard, especially when its own ox is being gored. As you’ll see from the letter they sent, the firm claimed that a blogger could not use its name in order to criticize it. This is a common ploy, used in the hope that the recipient of the threatening letter won’t know any better. Free speech would be dead indeed if critics could not name the people and entities they are criticizing. Just as Stephen Colbert can use the name and even the logo of Domino’s Pizza in his parody news report, this blogger was free to use the name and logo of Jones Day, and any action by Jones Day would have been a clear SLAPP suit. Here is the letter that the Electronic Frontier Foundation sent in return, calling Jones Day’s bluff.
Andrew Rector proved today that you really can sue anyone – even MLB, ESPN or the New York Yankees – for just about anything.
Clients often call and say, “can this person sue me for defamation if I [fill in the blank].” As I always say, and as this case illustrates, anyone can sue anybody for anything. The question is, can they do so successfully? Here, a sleeping baseball fan by the name of Andrew Rector is suing for the comments made by the sportscasters when the camera captured him napping.
Can he sue for defamation? Yes. But will he be successful? The answer here will be, no. A ridiculous and frivolous suit.
[UPDATE:] My prediction was correct. As reported by the New York Daily News, the court threw out (or should I say, put to sleep?) Rector’s ridiculous legal action.
Here is the video of the incident in question, which resulted in the unsuccessful legal action:
I 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.
Former Cincinnati Bengals cheerleader Sarah Jones won her defamation lawsuit against the gossip website TheDirty.com on Thursday in federal court, winning an award of $338,000. Whether she will ever collect any money is a different issue, but some see the decision as groundbreaking since the Plaintiff got around the Communications Decency Act.
Jones, 28, sued in 2009 after TheDirty.com published comments alleging she had slept with all of the Bengals, and had sexually transmitted diseases. The first trial ended in a deadlock, when the jurors were unable to unanimously agree whether the posts about Jones having sex with all the Bengals players and likely having sexually transmitted diseases were substantially false.
The case caught the attention of defamation attorneys after U.S. District Judge William Bertelsman ruled the website was not shielded from liability by the Communications Decency Act (CDA) of 1996. Many thought the ruling was a departure from all other rulings protecting website operators who use third-party content, and no doubt you will see this case reported as the first chink in the CDA’s armor, but I’ll explain why it is nothing new.
Whomever posts a defamatory comment on a website is always liable for the posting. The CDA protects a website operator from liability for third-party postings, but the website operator is still liable for his own postings, and that was the case here. The “shtick” of TheDirty is for visitors to post horrible comments about people, and the host, Nik Richie, then throws in his two cents worth. It was Richie who commented that Jones had slept with every player on the team, so of course he can be held liable for his own comments.
As evidenced by the first mistrial, on a different day with a different jury, the result could have been very different, and this could very well be reversed on appeal. As I have stated here many times, context is everything. A statement is only defamatory if it is offered as a true fact as opposed to being a joke or satire. When Richie makes the claim that Jones has slept with every player on the team, how would he be in a position to know that, and can it really be taken as a true statement that she slept with EVERY player on the team?
Complicating the matter is Jones’ history. I wrote here about the cannibal who sued because he was called a thief. It’s hard to argue that you have lost reputation for being falsely accused of being a thief when you are an admitted cannibal. Here, plaintiff is same Sarah Jones who gained national attention as a teacher for her dalliances with an under-aged student, for which she was sentenced to two years in prison (suspended).
It is never defamation to report a fact, even if that fact is that a person was charged with a crime they did not commit. I understand why callers sometimes don’t understand this distinction. The completely innocent caller was falsely arrested, so it seems like a newspaper that reports the arrest is somehow making a false statement that the caller committed a crime. But look closer, caller. The paper did not report that you committed the crime, the paper reported that you were ARRESTED for the crime. Truth is an absolute defense to any defamation claim, and it is true that you were arrested.
What I don’t understand is how so many attorneys miss this point and pursue doomed defamation claims for their clients.
A recent example of this that caught my eye is a case out of Nevada. As reported by the Las Vegas Sun, the accounting firm of Deloitte & Touche was hired to perform an audit of a company called Global Cash Access Holdings, Inc., which is a publicly traded company that provided cash access services to the Nevada gaming industry.
The accounting firm uncovered information from an FBI bulletin which claimed that the two men who founded the company – Robert Cucinotta and Karim Maskatiya – were involved in criminal activity. As they were required to do by law, Deloitte & Touche disclosed this information to the audit committee. Cucinotta and Maskatiya were not happy with this disclosure, and felt it amounted to defamation because they were never convicted of any crimes and there was no evidence that they did anything criminal. They sued Deloitte & Touche, claiming that the disclosure cost the company $400 million in market capitalization and cost them $100 million personally.
But can you see why the comments by Deloitte & Touche were not actionable defamation? The accounting firm simply reported information that was contained in the FBI bulletin, as it was required by law to do. Certainly if those allegations against two principals of the company proved to be true it would greatly impact the value of the company, so that information was quite properly reported.
The Nevada Supreme Court, in a decision written by Justice Michael Cherry, said, “We agree with our sister jurisdictions that those who are required by law to publish defamatory statements should be privileged in making such statements.” In this case the court said Deloitte’s communication to the audit committee of the cash access company was required by the federal securities law.
As the old saying goes, if a tree falls in the forest and no one is there to hear it, does it make a sound?* In the context of defamation law, the saying could be, “if no one knows it’s you, is the statement still defamatory?” The answer is no.
I get a surprising number of calls like this. Now that anyone can publish a book with a few mouse clicks, more people are publishing their life stories, and those stories always manage to irritate someone. That someone then calls me, stating that some person in the book is them, and they want to sue for defamation. They go on to explain that the name given is not theirs, that the geographic location given is someplace they have never lived or visited, and the gender has been changed, but they know it’s them and damn it they want to sue. In some cases it is clear that the caller made the whole thing up in their mind, but in other cases it is clear that the person referenced really is the caller. Even so, if the author changed the identity so much that no one would recognize them, there is no case.
Today’s example involves rocker Sammy Hagar. He wrote a book called “Red: My Uncensored Life in Rock“, which tells a story of a woman he had sex with following a concert, who later claimed to be pregnant. He explains that he paid her some support during the alleged pregnancy, but that no child was ever born and he now thinks the entire thing was simple extortion. Had he named her, that would have supported a claim for defamation since he accuses her of a criminal act, but she is identified only as a “Playboy bunny from California”. Apparently the woman in question was a Playboy bunny, but Hagar changed the state from Michigan to California, perhaps specifically to make her less identifiable.
Nonetheless, the still unidentified “Playboy bunny from California” sued Hagar for defamation and infliction of emotional distress. Not surprisingly, the trial court today threw out the case.
U.S. District Court Judge Linda Reade ruled that Hagar did not defame the woman because he did not refer to her by name in the book – identifying her erroneously as a “Playboy bunny from California” – and the woman did not prove she suffered any financial, reputational or emotional injuries from his statements. Only individuals who already knew about their relationship, not the general public, would have understood Hagar was referring to her in the book, she added.
Although Hagar’s statements in ‘Red’ brought back painful memories for Doe, the evidence does not support a finding that Hagar’s conduct was extreme enough to permit the court to find outrageous conduct sufficient to support Doe’s intentional infliction of emotional distress claim, Reade wrote.
* It’s a deep thought, but I’ve always thought it was kind of silly because of course a falling tree makes a sound. The laws of physics don’t stop just because no one is there.
An interesting defamation case out of New York, involving the world of music and illustrating the burden of proof.
As explained here on various occasions, truth is a defense (a point sadly lost on many defense attorneys). Thus, the burden of proof is on the defendant to show the truth of whatever it is he said or published.
In one of our recent cases, the defendant falsely stated that our client had cheated customers. Throughout the case, no matter how many times I explained to defense counsel that it would be his burden to prove that my client cheated customers, he kept responding, “you’ll never be able to prove that your client didn’t cheat customers.”
Really? My client took the stand and testified that he has never cheated a customer. That’s all it takes. The defendant then had the burden to prove the truth of the statement, and could not name a single customer our client had cheated. Judgment for plaintiff.
In today’s case, Tom Scholz, guitarist from the 70’s rock band Boston, sued the Boston Herald newspaper, claiming that certain articles falsely claimed that he was responsible for the suicide of fellow band member Brad Delp in 2007.
The judge in the case dismissed the action, because although it is the burden of the defendant to prove the truth of the statement, the judge concluded that the truth or falsity of the statement could never be determined. He didn’t use this example, but to borrow an example from that era, it’s a little like blaming Yoko Ono for the break-up of the Beatles, when John Lennon isn’t here to testify. The judge ruled that why Delp killed himself will forever be an imponderable, making any statement about the suicide merely an opinion, and opinions are not actionable.
Clients sometimes ask me to seek a letter of apology as part of a defamation settlement. I have managed to do so on a number of occasions, but I usually recommend a letter of retraction as opposed to a letter of apology, because the latter is often a deal breaker.
In our society, a true apology is a big deal (as opposed to an “I apologize if you were offended” type of apology). Many defendants would rather pay money than to apologize, which is somehow viewed as weak. After all, a real apology seeks forgiveness from the other side, so it sticks in the craw of most defamers that they are basically asking the victim to pass judgment on them.
With this mind set in mind, one can fully appreciate the frustration of Mark Byron. He and his wife were divorcing and fighting over the custody of their son. When the judge issued an order limiting his custody, he went to his Facebook page to vent, posting:
“… if you are an evil, vindictive woman who wants to ruin your husband’s life and take your son’s father away from him completely — all you need to do is say that you’re scared of your husband or domestic partner… , “
But there was a problem. The judge had also ordered Byron not to do “anything to cause his wife to suffer physical and/or mental abuse, harassment, annoyance, or bodily injury.” His wife was blocked from his Facebook page, but she got wind of the posting anyway and her attorney charged into court seeking a contempt order, asserting that the posting violated the protective order.
The judge agreed that it violated the order, and gave Byron a choice. The normal result for violation of a court order is a fine and/or some time in jail. The judge told Byron he could go to jail for 60 days for the violation of the order OR he could post an apology on Facebook. Byron decided he’d eat a little crow and post the apology rather than to sit in jail for two months. Here is what he posted:
I would like to apologize to my wife, Elizabeth Byron, for the comments regarding her and our son … which were posted on my Facebook wall on or about November 23, 2011. I hereby acknowledge that two judicial officials in the Hamilton County Domestic Relations Court have heard evidence and determined that I committed an act of domestic violence against Elizabeth on January 17, 2011. While that determination is currently being appealed, it has not been overturned by the appellate court. As a result of that determination, I was granted supervised parenting time with (my son) on a twice weekly basis. The reason I saw (my son) only one time during the four month period which ended about the time of my Facebook posting was because I chose to see him on only that single occasion during that period. I hereby apologize to Elizabeth for casting her in an unfavorable light by suggesting that she withheld (my son) from me or that she in any manner prevented me from seeing (my son) during that period. That decision was mine and mine alone. I further apologize to all my Facebook Friends for attempting to mislead them into thinking that Elizabeth was in any manner preventing me from spending time with (my son), which caused several of my Facebook Friends to respond with angry, venomous, and inflammatory comments of their own.
This case is being reported as a judge who trammeled on the free speech rights of a party, but I really don’t see it that way. Would it have been better for the judge to jail Byron with no offer of an alternative? There was another case where a judge told a shoplifter he could go to jail or stand in front of the store wearing an apology sign for a day. People also got up in arms about that verdict, but I think so long as it is offered as an alternative to normal jail time. For the record, to judges everywhere, if you are about to send me to jail, please offer me some crazy punishment as an alternative. On the other hand, if the judge had simply ordered the apology, I would have a problem with that result.
Where I think the judge got it wrong was his determination that Byron had violated the order. The judge had ordered him not to do anything to cause his wife “to suffer physical and/or mental abuse, harassment, annoyance, or bodily injury.” His Facebook posting was an absolutely true statement, and it only became “about” his wife if the reader was familiar enough with the circumstances to connect the dots. The comments were not even addressed to his wife, since she was blocked. To order someone not to say anything that might “annoy” someone else, and then hold them in contempt for doing so, is not appropriate in this country.
I recently reported on a Twitter defamation case in Australia, and how strange things can get without a law the Communications Decency Act. Now comes a case out of India.
India has a police unit called the Cyber Crime Investigation Cell (CCIC). Although I don’t want to see defamation criminalized, because that then gives the government the power to silence unpopular speech, I do admit the thought of an agency you could turn these things over to is slightly appealing.
In the case in India, the CCIC is investigating a complaint filed by actor Pooja Bedi against an anonymous Twitterer (Tweeter?, One who Tweets?), for allegedly defaming her on Twitter. According to Bedi’s complaint to the cyber crime unit, someone has been trying to tarnish her image on Twitter. Bedi has also alleged someone was threatening violence and writing ill about her. “These things are serious in nature and need to be investigated,” said Bedi in her complaint.
However Bedi said after the police complaint was filed, the accused deleted her account and changed her Twitter ID to @missbollyB, even apologizing to Bedi through her posts. Cyber crime cell officers said they had registered a case of defamation based on Bedi’s complaint. The police have sent a request to US authorities to provide information necessary for the probe.