Carry on, Yelpers
It’s hard to remember a time when I made a decision like where to eat or who to hire to paint my apartment without the help of reviewers and critics on websites like Yelp.
These sites all but eliminate the need for trial and error. I know the little place to get really good Mexican food. And I know about (and avoid) the Italian restaurant with overpriced menu options (I am, after all, a poor law student).
But when reviews lead us astray, there is no better vindication for a cold meal, dirty restaurant, horrible service, or (__________________enter your complaint here), than ranting from the safety of your own computer. After all, others will see the seething review and, if you’re lucky, will avoid the establishment you tell them to at all costs.
A relatively painless catharsis, right? Wrong.
As one reviewer in Fairfax, Virginia recently learned, a spiteful review may come back to haunt you.
Jane Perez took to sites like Yelp and Angie’s List to leave searing reviews of the general contracting company that had, in her mind, done far less than acceptable work. According to Ms. Perez, Christopher Dietz and his contracting company, Dietz Development, had done damage to her home, charged for work that wasn’t completed, and was responsible for the mysterious disappearance of some of her jewelry. “Bottom line,” Ms. Perez cautioned, “do not put yourself through this nightmare of a contractor.”
Mr. Dietz didn’t shake it off or create fake positive reviews to counter Ms. Perez. Instead, he filed a defamation suit against Ms. Perez claiming her reviews were false and damaged his reputation. He is seeking $750,000 and sought an injunction requiring her to stop commenting about his company and to remove the comments already made.
Is it possible that my fellow Yelpers (and I) could be subject to a defamation lawsuit for commenting about goods or services online? On behalf of reviewers everywhere, LASIS investigated.
Procedurally, here’s what’s happened so far: The Fairfax County Circuit Court issued an order partially granting the preliminary injunction by requiring Ms. Perez to remove certain comments. Ms. Perez filed a petition for review with the Supreme Court of Virginia arguing that the injunction was an impermissible prior restraint and violated principles of equity. The court issued a summary reversal of the injunction, stating “the preliminary injunction was not justified, and that the respondents have an adequate remedy at law.” (The court didn’t weigh in on prior restraint).
The next issue, which is still pending, is whether the online statements about Mr. Dietz and his company were defamatory.
Defamation is an intentional false communication which is written (libel) or spoken (slander), that “harms a person’s reputation; decreases the respect, regard, or confidence in which a person is held; or induces disparaging, hostile, or disagreeable opinions or feelings against a person.”
The first question in defamation suits is whether the offending statements are true. If they are, there’s no possible recovery for defamation.
In 1967, the Supreme Court held in Time, Inc. v. Hill that truth is an absolute defense to defamation.
And the truth defense doesn’t require that the statement be entirely accurate. So long as the statements are substantially true, minor inaccuracies will be ignored.
The Supreme Court of Virginia interpreted the relevant Virginia law on defamation in 1956 saying, “it is not necessary to prove the literal truth of statements made. Slight inaccuracies of expression are immaterial provided the defamatory charge is true in substance, and it is sufficient to show that the imputation is ‘substantially’ true.”
The next matter of business to turn to in a claim of defamation is to investigate whether or not the offensive speech is a protected form of speech — like an opinion. Ms. Perez and the rest of us can express as many of our opinions as we like under the protection of the First Amendment.
In 1990, the Supreme Court determined in Milkovich v. Lorain Journal Co. that full constitutional protection is afforded to “a statement of opinion having no provably false factual connotation.”
And in a recent case with facts similar to the Perez-Dietz case, the Supreme Court of Minnesota dismissed a defamation claim brought by a neurologist against a patient’s son, who made disparaging comments about the physician on rate-your-doctor websites, including calling the good doctor “a real tool.”
The court determined that “referring to someone as ‘a real tool’ falls within the category of pure opinion because the term cannot be reasonably interpreted as stating a fact and cannot be proven true or false.” The court went on to conclude that it was merely an opinion, which could not be the basis for a defamation action.
So it seems like Ms. Perez’s characterization of her experience with Mr. Dietz as a “nightmare” was fine. That’s her opinion, and she’s entitled to have it. And share it.
Jewelry going missing and damage to one’s home, however, are facts, which may be either true or false, so further inquiry is needed.
And to my fellow Yelpers: Be careful that your facts are correct but continue posting your opinionated reviews. People like me need them to decide where to eat this weekend.