This is a bit of a diversion from matters of property law, but recently I’ve been involved in writing some letters to various Yelp users about their defamatory comments towards a couple of my clients. In the course of my research, I’ve read many people criticizing defamation lawsuits are as being designed to silence people simply because they’re writing bad reviews. While this is possible in any particular case, legitimate defamation lawsuits are not designed to do that, and illegitimate ones have little chance of succeeding. Understanding the distinction between legitimate and illegitimate claims of defamation is important, because far too many of you are applying that criticism to legitimate cases.
For the purposes of this post, a simple three prong test will do. Defamation is 1) telling a lie to the general public about a person or company, 2) under circumstances in which the general public would believe it, and 3) therefore the lie harms that person or company. This three prong test is by no means a complete statement of defamation law. It’s just one I made up off the top of my head that’s grounded in the real law but simplified. There are all sorts of twists and turns to defamation law, but I don’t want to bog you down in too many details that aren’t directly relevant to this post. Just keep in mind this basic test as you read the rest of this post.
Statements of Opinion Are Not Defamation
Let’s say I make the statement, “I love ABC Corporation,” when in fact I hate it. This is a reasonable possibility, because this is a positive statement of opinion. I might be trying to protect someone’s feelings. However, it’s clear this I’m not committing defamation here either because I don’t satisfy the third prong (#3) of the test. Moreover, no one would ever want to sue for a positive statement of opinion, so we can just ignore them going forward. The real issue is a negative statement of opinion.
If you’re clever, you already realize that negative statements of opinion are rarely lies. If I say, “I hate ABC Corporation,” I’m probably not lying because I rarely have the motivation to do so. If I really liked ABC, I wouldn’t be doing myself any favors by criticizing them, so it’s unlikely I’d lie about that. More to the point, if I really hated ABC, then the statement is objectively true, even if everyone else in the world likes them. All I’m stating is my opinion, and if I honestly don’t like them, then , “I hate ABC Corporation,” is objectively true. So, if I’m stating a negative opinion, in almost all situations, I’m not committing defamation because I don’t satisfy the first prong (#1) of the test.
Now consider this hypothetical situation as an example. Let’s say that I was in ABC Shoe Store on a very busy day, and it took 30 seconds for an employee to greet me and ask how he could help me. Almost all of us would agree that this is pretty fast under the circumstances. However, what if I disagree? What if I then post on Yelp, “ABC Shoe Store was slow to respond”? Is that defamation?
No, it isn’t. Even if I’m being completely unfair, it’s not defamation if I’m still honestly stating my opinion. Of course, I could still be lying. Maybe the only reason I’m upset is that I thought the clerk looked at me strangely, and I was offended, but I thought it’d be more believable to accuse ABC of being slow. Proving that I’m lying, though, would be virtually impossible, so statements of opinion are simply excluded from defamation.
So, to summarize, if I’m simply telling you my opinion, I’m not guilty of defamation even if my opinion is ridiculous.
False Statements of Fact Are Defamation
So now we know what defamation isn’t. What is it?
Objectively false statements are defamation. If, in the hypothetical above, instead of saying, “ABC Shoe Store was slow to respond,” I said “ABC Shoe Store took 5 minutes to respond, and I was the only customer in the store,” then that’s defamation. Why? Because there are two objectively false statements in there: “5 minutes” and “only customer in the store.” In other words, it’s not my opinion; it’s an outright lie.
You might say that this particular example wouldn’t justify a $1,000,000.00 award for damages, and I hope you’re right. What if instead, I falsely accused the store of stealing expensive jewelry from my backpack while I was being helped? What if instead I falsely accused the store of poor customer service, racial discrimination, and physically hitting small children, but the only reason I did so was because they fired me from my position there 6 months ago? Do you think I should be able to say those things?
The First Amendment
Well, actually, yes, I should be able to say that, and as a free speech zealot, I personally have no objection to that fact and hope you don’t either. However, the real question is, “Should I be able to say those things and not deal with any consequences?” The answer to that question is no, and even I don’t have a problem with that.
Even the First Amendment has its limits. We all know the classic example: You can’t yell fire in a crowded room (under circumstances that might cause a panic and consequently serious bodily harm or death). Defamation is also one of those circumstances. If you say something defamatory, you can be punished. However, even defamatory speech has its protections. The doctrine of “prior restraint” demands that the speech be proven harmful by a trial (civil or criminal) before the government can interfere. So, the government can’t put a piece of tape over your mouth to prevent you from saying something harmful, but if you say it, then you’ll be punished.
But here’s the important point: When ABC Shoe Company sues me for telling those lies, they aren’t trying to suppress bad reviews; they’re trying to suppress lies. They’re trying to suppress statements made that do not accurately review them, and as a consumer that wants to know which businesses are actually good and which businesses are actually bad, you should be happy with that.
A Real Example from the Headlines
Prior restraint came up in a well-publicized case that took place here in the DC area. Deitz Construction was working on a home, and the owner, Ms. Perez, claimed that its employees stole jewelry from her home. Deitz (and its owner) sued for defamation. As part of the legal complaint, Deitz asked that the court grant a preliminary injunction to force Ms. Perez to take down the defamatory comments immediately. Normally, a preliminary injunction will be granted to a party if a court looks at the legal documents and concludes that there’s a pretty good chance the party will win at trial. However, that’s unavailable where speech is concerned. Remember, prior restraint demands that the words be proven at trial to be wrongful before they can be restricted in any way. So Deitz lost on that minor issue, but the trial is far from over. If the claim of theft turns out to be false – and it currently looks like it was – Ms. Perez will likely find herself on the losing end of the lawsuit.
And if those are the facts of the case, she should. “Deitz sucks” and “Deitz is incompetent” are statements of opinion. “Deitz employees stole my jewelry” is not. It could be true or false, so it’s the proper subject of a lawsuit. If it’s false, she hurt Deitz unfairly and should be punished.
Just for the heck of it, let’s go back to the test for defamation, and in particular, that second prong of believability (“under circumstances in which the general public would believe it”). What does that mean?
Let’s say I state, “The president of ABC Corporation is a necrophiliac.” That’s it. That’s the entire online statement; one sentence. Let’s also assume that this statement is a lie. Most people will look at that and say, “Rob is being ridiculous.” (They’d probably say that even if it weren’t a lie.) If so, then my statement doesn’t represent defamation because I don’t satisfy the second prong (#2) of the test. Sure, I’m lying, and people might even believe that I honestly believe it, but it’s such an outlandish statement that the general public is unlikely to believe it. Keep in mind, however, that whether or not this statement will be assumed to be ridiculous may depend on the specific facts of the case. If ABC Corporation is a funeral parlor, suddenly this statement becomes a bit more believable, and the second prong of the test might be satisfied.
What Should We Have Learned?
- Statements of opinion are not punishable.
- Believable lies that harm are punishable, but only after trial.
When evaluating the merits of a defamation lawsuit, don’t jump to the conclusion that the suit is designed to suppress legitimate negative reviews. Instead, look at what was said. If it’s not just opinion, but it’s a claim of a fact that could be a lie, then the only way you know the lawsuit is frivolous is if you’ve researched the case. If you haven’t, don’t form an opinion. Let the courts do their job.
I fully expect some to respond to my last sentence by saying, “But the courts don’t do their job!” I personally don’t do trial work anymore because I’m far too frustrated with the injustice I see in the courts, but on what are you basing that claim of courts not doing their job? Are you basing it on all the other times you made assumptions about cases you haven’t researched? That’s faulty reasoning that if enough of you follow, good businesses and their customers – including you – suffer, and the bad guys win.
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