Wednesday, December 05, 2012

Recent VA case calls attention to libel lawsuits against consumers who post negative (false?) comments on review sites (Yelp, Angie's) and sometimes blogs


The Washington Post front page today (Wednesday December 5, 2012) greets us with a pertinent story “In Yelp suit, free speecj pn Web vs. reputations” by Justin Jouvenal, link here.  Online, the title has more narrative: “Virginian woman is sued over her Yelp review”.

The specific story concerns retired military officer Jane Perez, who wrote an unfavorable review on Yelp about a contractor who did work on her Fairfax County VA home.  Apparently her review suggested that the contractor could have taken personal belongings, as well as making various other complaints. Apparently there was another review on Angie’s List.   And the contractor has apparently lost business suddenly. 

The story goes on to note a growing (although largely still small in terms of sheer relative volume) problem of defamation or libel lawsuits against individuals who post unfavorable reviews against local businesses, particularly contractors.   Some kinds of retail and contracting businesses find that a few bad reviews (even one) can devastate their sales.  Some studies have shown that consumer ratings to affect volume of businesses at some retail establishments and restaurants.

Free speech advocates note that review sites provide a valuable resource for consumers, keeping businesses “honest”.  As a practical matter, in some states at least, a business could saddle a consumer with legal bills defending a frivolous libel claim (forcing the reviewer to prove to a jury at 51% certainty that she had told “the truth”), although a business’s  propensity to sue critical consumers could hurt it further.

There is a group called the Public Participation Project which lobbies against SLAPP lawsuits (Strategic Lawsuits Against Public Participation) and frivolous lawsuits in general.  Maryland and the District of Columbia penalize plaintiffs for frivolous claims, but Virginia does not.  All states will honor legitimate claims of factual defamation against a party. And all states accept the common law idea that "opinions" alone are not defamatory. 

The website for the Project is spelled “anti-slapp.org” and gives a yellow warning in search engines from McAfee Site Advisor, which goes to gray (untested) if you view the report – an inconsistency.  MyWOT gives a green rating. Because of the yellow from McAfee, I won’t link directly now but just give the visitor the spelling.

California has its own Anti-Slapp project site here

The Post news story notes that there have been a few large awards against speakers.  In a few cases, blog postings have led to suits and judgments, as well as more conventional forum-style postings on review sites.  As a practical matter, a critical blog posting (on a blog covering various subjects)  is probably less likely to affect a business’s reputation and future income than a negative posting on a review site, because other consumers are more likely to look up a business on a review site like Yelp or Angie’s List specifically set up for this purpose.

Could a “libel troll” hunt down potential plaintiffs and defendants in Righthaven style?  That sounds less likely than with copyright or patent infringement, because it is hard to imagine an automated mechanism that could work.

Hosts of blogs and reviews are, as noted here many times before, protected by Section 230 of the Telecommunications Act of 1996.  While many businesses would like to see it struck down, as a practical matter service providers (both hosting and free services) could not continue to support online user-generated content if they had to review every posting in advance for libel or copyright problems.  We’ve covered this point before.

Some medical providers have required patients to sign “gag orders” contracting that they will not discuss the providers online.

Some businesses say that in the past (until the1990s), it wasn't possible for people to disseminate their views quickly without supervision from established publishers or professional media outlets. They think that precedence would say that defendable reputation is more fundamental that self-expression of views. 

I don’t review businesses on these review sites, partly because of time.  I generally don’t mention them by names on blogs.  I don’t want to get into a position where I could not get a repair or contractual service that I need.  I was concerned about this potential issue when I had caregivers taking care of my mother here until the end of 2010, that the idea that I publish “gratuitously” at all could present a problem in getting certain kinds of services.   I have only one situation right now with a contractor where there is a question  (about charges for post-derecho work v. an insurance company estimate) – and I’ll just say that there is still some unresolved ambiguity in the facts and interpretation of some matters.

A”CP Conference” has a 6-part YouTube video “Intermediary Immunity under Section 230” from June 2011. 

There are other videos out there about this (including Lieberman’s “April Fools Joke”, as here on Oct. 13) that probably need to be looked at.  I’ll come back to this again soon. 

Another possible area of future litigation could concern "unauthorizes" photographs of people appearing online. I've written about this before and it could get tricky. 

Note that there is an earlier posting Sept. 12, 2012 about litigation over reviews of an exercise studio in Washington DC. 



Update:  

NBC Washington is reporting that there was a hearing in a Virginia circuit court in Fairfax today, and that the judge ordered borh litigants not to discuss the issue of missing property online.  Discussions of quality of work are OK.  The judge seems focused specifically on accusations of theft but not of poor work performance. 

NBC4 has a detailed story (posted Wednesday night) by Jacnie Bensen here

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