Have you ever had such a bad consumer experience that you were compelled to tell the world about it online on a customer-reviews site? I have. After spending a night at a rundown hotel outside a national park, I wrote this on a travel site: “Do not stay here if you can help it” because the place is “a dump (it even smelled like a toxic dump, at that).”
But reviewers, take heed: If you feel a civic duty to post a scathing screed, warning others to steer clear of a particular establishment, like a restaurant or a hotel, or a service provider, like a doctor or a home contractor, you could face a defamation suit.
Sued After Posting About Her Contractor
That’s what happened to Jane Perez, a homeowner in Fairfax, Va., after she wrote critically about her home contractor on Yelp and Angie’s List. The contractor sued for $750,000 in damages, saying Perez’s words were false and hurt his reputation.
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The lawsuit is an eye-opener, providing a valuable lesson on how you should — and shouldn’t — post critical reviews about businesses and service providers online.
Eric Goldman, director of the Santa Clara University School of Law’s High Tech Law Institute, says the Perez case is “a reminder to us as review authors: There can be significant legal risk to sharing our views online.” Goldman says it’s one thing if you bash a business to a friend over coffee. But it’s quite another, legally, “when you start chatting over the Internet with a few million of your not-yet friends. Companies see these reviews and sometimes get testy.”
Here’s a shorthand version of Perez’s case, according to legal papers that were filed:
In 2011, she hired the Dietz Development contracting firm to make cosmetic repairs on her newly purchased townhouse. (The owner, Christopher Dietz, was a high-school classmate of Perez’s.) Perez thought the work was done far more slowly than promised and the quality was so poor that it “had to be redone by other contractors at great cost.” Perez says she discovered about $2,500 of her jewelry missing after firing Dietz and believed the company’s workers were responsible because the firm had her only extra key. Dietz sued Perez for nonpayment, but the suit was dismissed because he failed to file a “bill of particulars” in a timely fashion.
Perez then posted critical reviews about the contractor’s firm on Yelp and Angie’s List. Among other things, she wrote that she filed a police report “when I found my jewelry missing and Dietz was the only one with a key” and “Bottom line: Do not put yourself through this nightmare of a contractor.” She also noted that after Dietz tried to sue her for “monies due,” she won that case.
Dietz then sued Perez for $750,000 in damages, saying her views cost him $500,000 in harm to his reputation and seeking $250,000 in punitive damages. Denying stealing her jewelry and arguing that Perez won her suit due to a technicality, he also sought a preliminary injunction to make Perez take down her reviews pending a verdict.
In early December, a Fairfax County Circuit Court judge granted Dietz partial approval of the injunction, saying that although Perez’s reviews could remain up pending the outcome of a trial, she had to remove her accusation about the jewelry as well as her claim about winning the suit.
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Perez then appealed to Virginia’s State Supreme Court, which quickly reversed the preliminary injunction, saying it “wasn’t justified.” (You can visit the Public Citizen site for details about the case.)
Lessons From This Case
But the dispute is far from over. Dietz’s case against Perez is still pending and his attorney, Milton Johns, of Fairfax, Va., says his client intends to go forward with a jury trial, probably this fall. “What’s important to keep in mind," Johns says, "is that just because you’re on the other side of a computer, the standard of the defamation law doesn’t change.”
Paul Alan Levy, an attorney for Public Citizen, says there's a lesson here: "You have to be aware when you criticize a contractor that he may well decide he doesn't like online criticisms and may sue you for defamation. So it's important to be careful in what you say."
Johns says his firm has been “getting a lot of calls from people with similar situations” — including a tailor, a marital arts instructor, a dentist and another contractor — who also want to bring cases after receiving scathing reviews.
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Yelp says courts “have consistently ruled that consumers have the right to share their truthful experience.” That means, a spokeswoman wrote in an email, “reviewers are free to air their opinions, but should not exaggerate or misrepresent their experience.”
And, the spokeswoman added, “businesses that choose to sue their customers to silence them rather than address their comments, rarely prevail and often bring additional unwanted attention to the original criticism."
3 Safe Ways to Post Reviews Online
So how can you post reviews without getting into legal hot water? Here are three ways:
1. Offer opinions, not allegations. “Generally speaking, opinion is protected by the First Amendment. So you can’t be sued if you say, ‘I think Dr. Doe is a terrible dentist.’ That’s your opinion,” says Rebecca Glenberg, legal director of the American Civil Liberties Union of Virginia. Similarly, you can say you thought a restaurant’s service was slow or the food tasted terrible, Johns says.
But if you make a specific allegation, such as ‘Dr. Doe’s facilities are not clean,’ you could be sued if the statement isn’t true and you know, or should have known, it’s false.
2. Remember, truth is in the eye of the beholder. Truth is protected from defamation lawsuits, but your version of the “truth” may differ from a company or service provider, Goldman says. So be careful about the way you write your reviews.
I asked Goldman what could (and couldn't) get me into trouble if I wanted to post a complaint about a foot doctor I saw last year for persistent pain.
Here’s the version he said I shouldn’t write: “Podiatrist A is a quack. He misdiagnosed my foot pain, saying it was a stress fracture when it wasn’t. He had me wear a huge orthotic boot on my foot to keep it immobilized for six weeks, but my pain only got worse.”
Instead, Goldman says, I’d be better off taking this approach: “Podiatrist A took an X-ray, said I had a stress fracture and ordered me to keep my foot immobilized by wearing an orthotic boot for six weeks. The pain persisted, so Dr. A. took another set of X-rays and said I had new stress fractures. I sought a second opinion, bringing the new doctor a copy of the X-rays taken by Dr. A. The new doctor said he could not find any stress fractures in the X-rays and believed I had an inflamed tendon that would go away once I started wearing specially prescribed orthotics inside my regular walking shoes. The orthotics arrived and the pain disappeared.”
3. Skip the hyperbole. “It’s very typical to take a bad experience and blow it up into huge drama, saying a person is a ‘crook’ or a ‘fraud.’ That’s the kind of thing people sue over,” Goldman says.
So tone down the rhetoric and don’t rant or vent. “Remember, the goal of the review should be to help others make better choices,” Goldman says, not to punish the business or service provider.
Goldman says when he’s tempted to post an extremely harsh review, he often sets it aside for a couple of days to cool off, then revisits it with a fresh eye before posting. Not a bad idea — one that could keep you out of a possible lawsuit.
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