Aaron Morris
How to Remove False and Defamatory Glassdoor Reviews
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.
Yelp Ordered to Remove Defamatory Posts
As I have stated here many times, although wrongdoers have been able to use it as a shield, the Communications Decency Act (“CDA”) is an essential statute if we want to live in a country where one can freely offer their opinions about products and businesses.
But I have also argued for a simple fix to the abuses of the CDA. If someone posts a defamatory review on Yelp, the CDA prevents any legal action against Yelp; only the person who posted the comment is liable for the defamatory comments. Fair enough. If Yelp could be made to research every review the subject of that review claims is defamatory, it could not exist, and the process of finding a good sushi restaurant would be made far more difficult.
But would it be so burdensome to require Yelp to take down a review, AFTER a court has determined that review to be false and defamatory? It is a long and arduous journey to take a case to trial and prove that a review is defamatory. There would be very few judgments coming out the other side of that process, and hence very few posts Yelp would need to take down. Indeed, Yelp should embrace such an approach, because it claims to want only legitimate reviews. If after presentation of evidence, a court has determined that a review posted on Yelp is false, Yelp should be thrilled that a false review was rooted out and jump to remove it.
The CDA is a necessary evil, but it makes no conceptual sense that after the person who posted the comment has been found to be liable for defamation, that the post can remain, still damaging the reputation of the plaintiff. At least in the case of Yelp, the court can order the defendant to remove the post, and the defendant has the ability to do so, but what about sites like Rip Off Report, where the site prevents the defendant from removing his own post? I have long called for a mechanism to force sites to remove defamatory posts after a court has found them to be so.
Finally, a Court in San Francisco apparently heard my plea, and entered a judgment ordering Yelp to take down a post. The conventional wisdom has always been (1) you can’t get a court to order an injunction against Yelp since it is not a party to the action, and (2) obtaining such an order would violate the CDA, because is somehow amounts to finding liability against Yelp.
But I have long railed against that conventional wisdom. Continue reading
California Prohibits “You Can’t Review Me” Contracts
From 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.
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. And, as she walks away, she adds, “And you cheat, and you’re ugly!”
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 was 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 a Court Order Someone Not to Defame You?
I get many calls from victims of Internet defamation who want me to go to court and get an order to stop the defamation. In other words, they want a court order that stops someone from speaking or publishing statements that the victims deems to be defamatory. Is that possible?
Like most legal questions, the answer is, “it depends.”
California law is very clear that after a trial has determined that the statements being made are defamatory, the court can order the defendant to stop making those statements. The reason is that defamatory speech is not protected, so once it has been found to be defamatory, the court can order the defendant not to repeat the defamatory statements. Once the court has issued such an order, it can be enforced just like any other court order, with the court assessing sanctions and even jail time if the defendant refuses to comply.
The much tougher challenge is getting a court to order a defendant to stop defaming the victim before there has been a trial. Typically, it takes at least a year to take a matter to trial, and that may be far too long for the victim. A temporary injunction can be obtained in a matter of days, so that affords a much faster remedy if it is available.
But there is a problem. An injunction is usually issued with little or no time for the defendant to oppose it. The procedure is that the plaintiff files an ex parte application with just 24 hours notice to the other side. The plaintiff’s attorney may have taken weeks to prepare a carefully crafted application supported by any number of declarations from witnesses, but the defendant gets just 24 hours to put together an opposition. Indeed, it’s far worse, because notice must be given 24 hours in advance, but the application may not be served until just four hours before the hearing, depending on the procedure followed by a particular court. If good cause can be shown, the ex parte application can be sought with no notice to the other side. A defendant could be ordered to stop speaking before the judge has ever heard his side of the story. Is that fair? Continue reading
Can the Dead Be Defamed?
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.
Morris & Stone Wins $1.5 Million for Internet Defamation Victims
In this case, we represented a business and the individual who owns that business. The defendant, a medical doctor named Pankaj Karan, was starting his own business, MDTelexchange, and traveled to an overseas company also owned by our client (we’ll call that the “foreign company”) and entered into a contract for the creation of some custom call center software.
And that is where the divergence in the two versions of the story begins. Our clients asserted (and proved at trial) that the working software was delivered on time by the foreign company. The defendant, Dr. Karan, claimed otherwise, and blamed the failure of his start-up company on the software.
Dr. Karan’s claims never made sense, because while the software would have been useful in his business, it was in no way essential. Blaming the software for the failure of the business was akin to saying a business failed due to a lack of business cards. But for whatever reason, Dr. Karan chose to blame our clients, and in an email announced that he was going to “work night and day to inflict the maximum amount of financial pain that is allowed under the law.” To that end, he ignored the fact that his contract was with the foreign company, and instead attacked our client personally, along with his other company, taking to the Internet to trash their reputations.
This is a scenario that I see over and over in defamation cases. Someone becomes unhappy with a business or individual, and decides to criticize them on-line. It might even begin with a laudable motive – just putting out the word to the public to avoid a business that did not satisfy the critic. I will vigorously defend the right of anyone to go on line and publish a legitimate criticism of a business.
But something happens that takes the person beyond a legitimate review. As the person types the words, he or she decides it’s just not stinging enough and won’t cause enough harm. In this case, Dr. Karan must have felt that a legitimate review of the foreign company, stating that in his opinion the software did not work as promised or was not delivered on time, just wasn’t hurtful enough. He posted two articles on his own blog, and sent an email to our clients’ customers. In the email and postings, Dr. Karan’s comments had almost nothing to do with the alleged problems with the software. Indeed, he abandoned his claim that the software was late, and instead claimed that it had never been delivered at all. He added that our client had cheated an employer ten years earlier, and that his company had failed to pay vendors hundreds of thousands of dollars. Although our clients had never received a single complaint from a customer, Dr. Karan claimed that “they are swindlers of the highest kind and have milked many of their clients of money and time.”
At trial, Dr. Karan could not identify a single customer that our clients had “swindled”, he could not identify a single vendor they had failed to pay, could not specify how he had cheated his former employer, and acknowledged that the software was in fact delivered. Today, an Orange County jury, known for being very conservative with damage awards, awarded $1.5 million jointly and individually to both of our clients for the damage to their reputations and business, caused by Dr. Karan.
In a standard civil action, the plaintiff has the burden to prove the case. This is true in a defamation action as well, but since truth is a defense to defamation, the burden of proving a statement is true falls on the defendant. I can’t fathom how defendant thought he would get away with what he published in this email and on his blog, but I think he may have thought he would be safe because we could not prove a negative. In other words, how do you show that you have never defrauded any of your customers? Bring in every customer you have ever worked with to testify that you did not defraud them? That would be impossible, and that is why the law puts the burden on defendant to prove the TRUTH of the statements. Dr. Karan could not prove his statements were true, and was therefore liable for Internet defamation.
Pankaj Karan was admirably represented at various times during the action by Randolph Catanese and Douglas Hume from Catanese & Wells, David R. Calderon from Barth, Berus & Calderon, and Palak Chopra from the Law Offices of Palak Chopra.
[UPDATE — January 2, 2014] Dr. Karan did not go silently into the good night. His attorneys appealed the $1.5 million verdict, claiming there was insufficient evidence to support an award of that size. To that claim, and in denying the appeal, the court opened its opinion with the sentence, “All things considered, appellant Dr. Pankaj Karan got off cheaply in the trial court.” Better yet, in commenting on our brief, the court stated:
[Dr. Karan] has misstated the record in numerous particulars, as shown in a respondents’ brief so devastating it has left Karan, like Job, with no reply but silence and a hand over his mouth.
The Girl in the Red Bikini — A Facebook Tale
High School Sued for Defamation for a Posting on Facebook
I present now a fascinating case that serves to illustrate a couple of points about Internet defamation. We’ll call this one the Girl in the Red Bikini.
Enter the Fayette County School District in Georgia. School District administrators decided it would be a good idea to warn their high school students about the dangers of posting photographs on social sites such as Facebook. They came up with a presentation with the theme, “once it’s there, it’s there to stay.” A perfectly valid message to teach the high schoolers.
But then they did something strange. They decided that to really drive home the point, the presentation needed embarrassing photos posted by current students. They snooped around on their students’ Facebook pages to find what they considered illustrative examples of the poor choices being made by their students.
One photo they decided was a good illustration was a photo of student Chelsea Chaney. Ms. Chaney had dared to post a picture of her standing beside a cardboard cut-out of the artist formerly know as Snoop Dogg (he now goes by Snoop Lion in case you missed the memo). Snoop (or, rather, his cardboard cut-out) is holding a can of something. I really can’t identify it from the photo. It could be a beer but it could just as easily be an energy drink. Worse, though, in the minds of the Fayette County School District, Ms, Chaney was wearing a bikini. Put those facts together, and you have what is obviously a very embarrassing photo that never should have been posted, apparently because it shows public drunkeness and promiscuity, at least in the warped minds of the District.
In reality, the photo was entirely innocent and implied nothing. (Obviously Ms. Chaney was not happy that the photo was posted so I won’t republish it, but it is already published here.) But imagine the shock of Chaney, seeing her photo come up on the screen at a school assembly, used as an example of poor choices. She didn’t think that was very cool, and is now suing the school district.
So what are the takeaways from this case (aside from not going to school in Fayette County)? The school district was idiotic to create this presentation, but it does serve to illustrate that the photos you post can have very unforeseen consequences, even if they aren’t inappropriate. Also, this is yet another example of the Barbara Streisand Effect. Chaney was justifiably embarrassed and angry that the photo was posted, but whereas before only her schoolmates saw it, now she has made it a topic of discussion all over the Internet. That may be a price she is willing to pay in order to combat this behavior, but just be aware that any action can fan the very flames you were hoping to extinguish.
“Revenge Porn” Now a Crime in California
Revenge Porn
I get a number of calls about this every month, and I now have a better means to deal with this form of cyber-stalking.
The scenario is almost always the same. A girlfriend (foolishly if you ask me) provides some naked photos to her boyfriend, and when they break up, he posts them on the Internet as a form of revenge. I’m not being sexist here. Either because guys are just not as generous about providing naked pictures, or because ex-girlfriends at least have the couth not to post them, I have never received a call from a male complaining that his ex is posting naked pictures of him.
We have been successful in the past in getting the photos taken down by pursuing actions for infliction of emotional distress, and sometimes even copyright infringement. Guys who post naked pictures of their ex-girlfriends are usually not Rhodes Scholars, but even they can figure out that going to court and arguing that there is nothing wrong with that behavior is probably not a bright idea. Faced with a lawsuit, the pictures usually come down.
Now California has made my job easier by providing even greater incentive. These miscreants who engage in this form of “revenge porn” now face jail time and fines under a law signed by Gov. Jerry Brown. They face up to six months in jail and a fine of $1,000.
The bill that Brown signed into law on October 2, 2013, takes effect immediately.
Anti-SLAPP Motion Does Not Dispose of Action as to Unprotected Claims
How to Handle Mixed Causes of Action?
In a ruling that makes perfect sense, the Fourth District Court of Appeal held that an anti-SLAPP motion can be used to excise some allegations in a cause of action that involve protected activities, while leaving intact those allegations that do not fall under the statute.
In Cho v. Chang (LASC case number B239719), Jessica Chang sued a former co-worker, Howard Cho, for sexual assault and harassment. Chang filed a cross-complaint that was a clear SLAPP, because the two causes of action alleged defamation and infliction of emotional distress based on the things Chang had said about Cho to her employer, EEOC and DFEH. As I have said here many time, statements to government entities are protected, and the statements to the employer are a natural part of the redress process, and therefore are also protected.
But wait a second. The cross-complaint also alleged that the statements by Chang to her co-workers were defamatory. In some circumstances statements to co-workers can be protected, and indeed that was the argument made by Chang, but here the connection was too attenuated. As the court stated,
“Chang argues that her comments to co-workers related to matters of ‘public interest,’ but that is without merit. A public interest involves more than mere curiosity or private information communicated to a small number of people; it concerns communications to a substantial number of people and some connection with the public interest rather than a private controversy.”
So, if the allegations about the statements to co-workers state a valid action for defamation and infliction of emotional distress, must that baby be thrown out with the bath water just because it is contained in the same cause of action that include protected speech? Los Angeles Superior Court Judge Michael Johnson, and the Court of Appeal, answered “no” to that question. They both determined that an anti-SLAPP motion could be used surgically to remove just the allegations of protected activities and speech, while leaving any cognizable claims.
Nonetheless, the anti-SLAPP motion was successful, at least in part, so did Chang recover her attorney fees? In that regard, Judge Johnson was not very charitable. The judge noted that a party prevailing on an anti-SLAPP motion is normally entitled to an award of attorney fees, but said:
“While Chang’s motion has been granted in part, the ruling has produced nothing of consequence. Cho is still entitled to pursue his causes of action for defamation and [intentional infliction of emotional distress], and the evidence to be presented at trial is largely the same. Chang should have been aware that Cho’s allegations about private comments were viable, and she should have addressed the other allegations in a more focused and less burdensome manner (such as a traditional motion to strike or a motion in limine). Chang’s request for an award of fees and costs is denied.”
