12/13/12

Yelp Review Gets Reviewer Sued by Company Claiming Significant Damage From Single, Bad Online Review: Is This The Case That Sets the Precedent for Internet Defamation Suits Based on Bad Online Reviews?

If this isn't the start of a trend, I don't know what is.  There's a sizable case over on the East Coast that seems to be holding its traction against the usual arguments of free speech in a case where defamation damages are being claimed based upon an online review.  I think that lots of lawyers are going to be watching what happens here.

(It's not that these bad reviews haven't been the subject of lawsuits filed by lawyers already:  there's a Dallas law firm that has filed a $50,000 damage suit for a bad review on Google ("Ben Doe") and there's a Florida lawyer who sued for removal of a bad online review at a lawyer-review site and had the case settled pretty quickly.)

Why?  I've already had more than one discussion with clients in different parts of the country that are angry and fretful about the opportunity offered to anyone out there to write a bad review of their work and have it published for all to see at Yelp or Avvo or whereever.  There are lots and lots of review sites these days.

The calls that I've had regarding bad reviews are from lawyers in firms that practice in emotional areas: family law, criminal defense, etc. where someone is going to be upset.  It's almost an old joke that no one likes their ex-spouse's divorce lawyer.  

Most of my law firm clientele are concerned with how to deal with snarly reviews at these online sites, when they are prohibited or limited in publishing client testimonials from clients that are very pleased with the work the lawyers have done.  They aren't so concerned with the single bad review as their perceived inability to balance that bad review out with the numerous client letters, cards, and testimonials that they have on file where clients offered stellar reviews of the firm and its work.

It isn't fair, granted.  However, no one has brought up the idea of suing the bad reviewer.  Yet.  I'm thinking that those lawsuits may be coming.  Consider this.

The $750,000 Internet Defamation Lawsuit Out of Virginia

Dietz Development is a small District of Columbia business owned by Christopher Dietz that Fairfax, Virginia resident Jane Perez contracted to do some work on her home last February.  Seems Mr. Dietz and Ms.Perez are acquainted because they went to high school together, and that's why Dietz Development got the call.

Now, these two ex-students and former friends are on opposite sites of a defamation suit that is getting international attention (like this article in Great Britain's Daily Mail).  Dietz Development is alleging a loss of $750,000 in lost profits and damage to the company's reputation (or business goodwill) because of one, single bad review posted on the Yelp site.

Read the complaint here (provided by The Washington Post).  The Yelp review appears as Exhibit B (second post on page).

There was a similar review posted to membership review site Angie's List, which has been included in the complaint (see Exhibit A) but isn't getting the spotlight that the Yelp review has garnered, perhaps because the readers of Angie's List are not the general public but only those who pay a membership fee to access the Angie's List web site.

Judge Grants Restraining Order: Reviewer Must Edit The Online Review as Case Proceeds

This week, a judge granted Dietz's motion for a temporary order requiring Jane Perez to change the online review although the order does not require that the bad review be taken offline in its entirety.  (Whether this is drawing a line on potential damages claims or giving the plaintiff a big hint that he's going to win this thing is too soon to tell.)

Media reports are that Perez has been ordered to remove her allegations that Mr. Dietz stole jewelry from her home.  I haven't been able to find the actual court order online (yet).

What Was in the Yelp Review That Got Jane Perez Sued?

The lawsuit alleges that not only did the review complain about the quality of the work that was done, or not done, it also claims that Mr. Dietz stole jewelry from the home (theory: he was the only one with a key to the house aside from the home owner at the time that the jewelry went missing) and that Dietz was operating without the proper license to do business.

Of course, Mr. Dietz posted his own reply to her bad review.  He's arguing that wasn't enough.  From this single bad review, the plaintiff is claiming a huge amount of damage ($750,000).

And this case is proceeding through the courts. It's not being tossed.  And the judge just made the review edit the review.  

In my opinion, online reviews of businesses -- including law firms -- are going to be considered in a different manner than book reviews (where book reviewers are also facing the risk of being sued for a bad review).

These online business reviews may be able to hurt a business more than a single bad book review, also my opinion here.  After all, a book review is understood to be the opinion of a work of fiction or non-fiction and the reader understands that what is poison to one may be meat to another.  It's subjective.

An online review of a service provider, on the other hand, can be objectively judged.  Was the work shoddy or not?  Expert opinion and factual support can provide an answer.  Was there a theft?  Who did it?  These are things that can be proven with facts in a courtroom.  Same thing with the licensure issue.  Maybe this is true for damages sustained from a bad review, as well.

Will more businesses sue for bad online reviews?  Will law firms tee it up?  I think so.

And where are the publishers in all this?  They sure are quiet and I'm wondering if that's smart.  

Here's my first big question: where is the responsibility of the publisher in these online review defamation cases?  I'm wondering if the online web site that profits by building a review directory for the public isn't going to be held by a judge somewhere to have a corresponding duty regarding the reviews that are placed upon its site pages.

Surely there are going to be plaintiffs that include these sites in their pleadings; after all, these are probably deeper pockets than the individual reviewer.  My little voice is asking, "if someone claims a criminal act like theft, then isn't that stepping across some sort of publisher duty line in an online review of a business?"

Another big question I have: what does this do to trustworthy reviews?  Free speech is important and it's priceless in its value.  Something that we may learn once it's gone (like privacy rights) in the near future.

I do read online reviews before making a purchase or inviting someone into my home for repairs.  Will these suits simply insure that the bad reviews won't get published out of fear of reprisal and I won't be able to learn that the book or the plumber or the car is a bad deal?

If this litigation happens, then what's the value of the review site to me?  Why bother reading CitiSearch for a restaurant to check out if all that CitiSearch can offer me is fluff stuff?
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