What the Yelp Lawsuits Mean for You

People Hate Us on Yelp by danoxster from Flickr (Creative Commons License)

People Hate Us on Yelp by danoxster from Flickr (Creative Commons License)

There are a few lawsuits going on right now involving reviews on Yelp. If you are a business owner who is concerned about what people might post about you or a person who likes to post reviews of products and services online, you should be paying attention.

In the first case, the court ordered Yelp to reveal the identities of seven anonymous account holders who are being accused of posting false negative reviews about a business. The owner of Hadeed Carpet Cleaning filed the defamation lawsuit claiming that these people were not customers. Posting reviews of companies you haven’t used is also a violation of Yelp’s terms of service.

The First Amendment protects people’s right to share their opinions, including anonymously. However, it doesn’t protect against defamatory speech. The challenge with anonymous speech is you could be unmasked if you do something wrong or if someone builds a strong case that you could be wrong. These cases are hard because the owner doesn’t know who is posting the anonymous review so they can’t cross check the review with their customer records so they often have to sue to identify the person so they can determine if they’ve been illegally harmed.  This case doesn’t concern me too much as long as the court is applying the proper standards to determine if the plaintiff has shown enough evidence of harm that would warrant a subpoena to reveal the posters’ identities.

In the second case, a contracting company is suing a former customer for $750K for defamation after she posted a negative review on Yelp where she claimed her “home was damaged, she was billed for work that wasn’t done and jewelry went missing after she hired” the company. Defamation generally requires a false statement about a person or entity that’s communicated to a third party, and that hurts the person or entity’s reputation. In this case, the owner claims the review has cost his company business, so there’s his damage. If anything in her review is untrue and led to the drop in business, that’s likely defamation.

Some people are concerned that these cases will prohibit people from posting negative reviews online, even when they are accurate. Given how many Yelp reviews have been posted and how few lawsuits have come out of them, I don’t think this should be a significant concern for Yelpers. I think these cases provide good lessons regarding internet law and etiquette:

  1. If you’re going to post reviews online, make sure you only share your accurate opinion. (BTW – Federal law requires you to only post your honest and accurate opinions.)
  2. The First Amendment protects your right to speak anonymously; however, if someone suspects your speech has harmed them, they may have to sue to get a subpoena for the website to reveal your identity to determine if they’ve been harmed. If you use your real name, they can cross check your review with their records.
  3. If you are a business owner, take care of your customers. If you treat them badly, have low quality products, or provide poor service, they will call you out online.

I also made a video about how to respond to bad reviews online from a legal perspective:

Most states have laws against strategic lawsuits against public participation, called anti-SLAPP laws. These are laws against filing lawsuits that are intended just to shut you up, not to address a situation where a person was legally harmed. If someone files a defamation lawsuit against you because of an online review and you feel like you’re being falsely accused, you should check to see if your state has an anti-SLAPP law.  

If you want more information about internet defamation, please check out my book, The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. It has an entire chapter dedicated to online defamation. You can connected with me on TwitterFacebookYouTubeLinkedIn, or you can email me. You can also subscribe to the Carter Law Firm monthly newsletter.
Please visit my homepage for more information about Carter Law Firm.

Could Amy’s Baking Company Bring Legal Action For Online Comments?

Savouring a soft Scottsdale Sunset by Nelson Minar from Flickr

Savouring a soft Scottsdale Sunset by Nelson Minar from Flickr

So social media blew up this week after Amy’s Baking Company, owned by Samy and Amy Bouzaglo, was featured on Kitchen Nightmares where Chef Ramsey walked away after he felt that the owners of the restaurant were not willing to listen to his critiques. On the show, Amy claimed that the business was hurt by “online bullies” who told lies about them.

After the show aired, the business received national attention and there were several irate posts from the owners on the restaurant’s Facebook pages – one they claim was hacked and the new one they started yesterday.  According to the Phoenix Business Journal, one of the owners’ posts stated they were keeping track of who was commenting and that they “will be pursuing action against you legaly, and against reddit and yelp, for this plot you have come together on. you are all just punks.”

Well, what if Samy and Amy wanted to pursue legal action against people who left comments on their Facebook page, Yelp, or Reddit? What would they claim – infliction of emotional distress? Defamation? For the most part, sharing your opinion is protected by the First Amendment. Yelp and Reddit simply provide forums for others to share but they don’t control the content that is posted, so there’s probably not much they could do in regards to those sites themselves.

What about defamation? In Arizona, defamation requires a false statement about the plaintiff, communicated to a third party, that hurts the plaintiff’s reputation. If Samy and Amy filed defamation claims against anyone who created a post about them or their restaurant, the defendants have three main ways to defend themselves.

Defense #1: There’s no defamation if the statement was true.
If you didn’t tell a lie, there can be no defamation. If you make a statement that only contains your opinion and you told the truth about your thoughts and feelings, there can be no defamation.

Defense #2: The only part of the statement that was false was insignificant.
If the only part of your statement that was false was insignificant, there’s no defamation. For instance, if you write a bad review for a restaurant because you didn’t like their XYZ burger but it turns out you ordered the RST burger, that would be a false statement. If the only thing that wasn’t accurate was the name of the item you ordered, but your review of it was true to your experience, that misstatement would be so minor that it wouldn’t qualify as defamation. The part that was the lie likely didn’t hurt the plaintiff’s reputation.

Defense #3: There was no reputational damage.
This is my favorite of the defamation defenses. Essentially this defense says the plaintiff’s reputation is so bad that there’s nothing you could say that would make it worse. This is a very high bar to clear. I suspect you’d have to make a false statement about a modern day Hitler to have a reputation that’s this bad. In most cases, a person can have a really bad reputation but you could make it worse if you told a lie about them and said they kick puppies or molest children.

According to one of Amy’s Baking Company’s Facebook pages, they will be having a grand re-opening on May 21st. It will be interesting to see the reviews from the people who visit the restaurant that night.

If you suspect you’ve been the target of defamation, please contact an attorney in your community. If you want more information about online defamation and the defamation defenses, please check out my book, The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed.

You can also subscribe to the Carter Law Firm monthly newsletter.
You can connect with me on TwitterGoogle+FacebookYouTubeLinkedIn, or you can email me.
Please visit my homepage for more information about Carter Law Firm.

Don’t Post Stupid Stuff Online

Gestures by Tuppus from Flickr

When I was a kid, I had a shirt that said “think” across the chest and “act” across the back. There was tiny print around the bottom hem that had a series of statements that said “think before you ________.” The shirt’s message was, “Think before you act.” If the company made this shirt today, they should modify the design to say, “Think before you post.”

Think B4 U Post by Mister Norris from Flickr

It blows my mind how much stupid shit people post on the internet, and most of the time, you can tell they do it because they think it’s funny in the moment and they don’t think it all the way through. Before you post anything on the internet, regardless of what it is and where you’re putting it, ask yourself 2 questions:

  1. What’s the worst thing that could happen?
  2. How many ways could this blow up in my face?

We all know how fast an internet post can spread like wildfire. Look at this post by a girl who lost her hat that she got from her mother who died of cancer at the Phoenix airport. I’m sure tens of thousands if not hundreds of thousands of people have seen it. I hope she gets it back. This post went viral because her story touched people’s hearts, but other posts go viral because they’re so offensive.

Always beware of the court of public opinion. You can look like a massive ass on the internet without doing anything illegal. If you do that, be ready for your reputation to be tarnished. That offensive post could easily become the number one result when someone Googles your name, which will hurt your professional and personal lives.

And if you make an offer in a post that is believable, don’t be shocked if someone accepts it. If you post on Facebook, “I lost my phone in a cab in NYC. I’ll give $10K to whoever returns it.” You better get your checkbook out when you get it back or you might find yourself in court for breach of contract.

If you post something on the internet and it garners strong negative reactions, there isn’t much you can do if you don’t like it unless they cross the line into the realms of invasion of privacy or defamation. The only thing you can really do at that point is damage control.

Carter Law Firm’s Postcards

If you post something online and regret it after the fact, deleting it may not be enough to save you. Once you put something out there, you can’t control how many times it will be downloaded, shared, re-posted, and re-tweeted. It only takes a few seconds to create a post, but you may be living with the consequences forever.

The take away lesson: Think before your post…really think. Don’t put anything online that you wouldn’t put on the front page of the newspaper.

You can connect with me via TwitterGoogle+Facebook, and LinkedIn, or you can email me.
Please visit my homepage for more information about Carter Law Firm.

Can I Publish an Email in a Blog Post?

Letter of Intent by Nick Ares, Ruth Carter, Carter Law Firm

Letter of Intent by Nick Ares

My friend in California recently contacted me and said that he received an email from a professional association he belong to and that he wanted to share it in a blog post along with his response. As an Arizona attorney, I can’t provide legal advice to California clients, but it made me think about what potential legal repercussions I could face if I wanted to publish an email in a blog.

Defamation
Defamation usually involves making a false statement about a person or entity to a third party that damages their reputation. Publishing a blog post is definitely a communication to a third party, but there’s no false statement if you publish the email as it was written and if your response contains your true reaction to the message.

Public Disclosure of Private Facts
Public disclosure of private facts is an invasion of privacy claim where you tell the truth about a person but you release information that a reasonable person would expect you to keep confidential and they would be highly offended if you shared it. This is the type of claim you could face if you break up with your significant other and release the sex tape you made during your relationship.

In terms of publishing an email I received, I’d review the message and the association’s rules to see if communications need to be regarded as confidential. If not, I probably wouldn’t hesitate to republish it in a blog because there’s probably nothing in it that would be high offensive to share with others.

False Light
False light is a claim where you’re accused to telling the truth about someone but you manipulate it in a way that suggests something that is false. If I were going to republish an email, I’d probably publish the entire message to avoid being accused to manipulating the message to make the person look worse than they are.

These legal claims are all state law claims. If I publish an email written to me by a person or on behalf of an organization and they get pissed at me, they’re going to sue me where they live. I’d have to check the exact verbiage of these laws in that state, not just my home state. I prefer  to not set myself up to be sued across the country and have to go there to defend myself.

EDIT: My lawyer friend reminded me of one more claim you have to think about if you’re going to publish an email in a blog post: Copyright Infringement.
The person who wrote the email likely has copyright rights in their verbiage, include the right to decide where it’s reproduced and displayed. Most people don’t register their copyrights with the U.S. Copyright Office, so if you wait three months to publish your blog post, they can only come after you for their actual damages, which will probably be lower than statutory damages. In some cases, they could still get a decent settlement.

And as always, if you’re going to push the envelope with your blog posts, it’s easier and cheaper to consult a lawyer (like me!) in advance than to have to hire one after you’ve been sued and you have to defend yourself.

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Please visit my homepage for more information about Carter Law Firm.

8 Questions to Ask Before Posting a Blog

No I'm Blogging This by Andre Charland

No I'm Blogging This by Andre Charland

I taught a class this week at Gangplank, an awesome collaborative co-working space in Chandler, on some of the legalities of blogging. It was part of Gangplank Academy. As I was going through my notes in preparation of this class, it occurred to me that there are some critical questions every blogger should ask themselves before publishing a new blog post.

1. Is all the information in your blog verifiable?

2. Is every statement that isn’t verifiable indisputable?
Statements like “My knee hurts like it’s going to rain tomorrow” and “My favorite color is blue” may not be verifiable, but there’s no one who can say those statements aren’t true.

3. Do you accuse anyone of committing a crime?
It’s one thing to say, “My neighbor gives me the creeps,” but you might get sued if you say, “In my opinion, my neighbor’s a pedophile.”

4. Are you sharing any information that you learned in confidence?
When you break up with your partner, don’t write a blog post sharing all the personal information you learned during the relationship like their weird fetishes and habits.

5. Are any of your statements misrepresentations or half-truths?

6. Do any of your statements insinuate anything that isn’t true?
If you write a blog about how you don’t like seeing drug users in the park and you include a photo of a person lying in the grass with their eyes closed, they may be unhappy and sue you if they’re not a drug user but were only taking a nap.

7. Is all your information public? Are you writing about a topic where your subject might have an expectation of privacy?
Your neighbor has no expectation of privacy in how he looks naked if you saw him at a public nude beach. He does if you had to creep up to his house and peer through the cracks in his closed blinds to see him.

8. Is all your information from reputable sources?
If you copy or repeat someone’s defamatory statement, even if you didn’t know it was false, you might get sued for defamation.

I love bloggers who push the envelope and sometimes it’s hard to know when you’re crossing the line. When in doubt, consult a lawyer who is a media expert and always follow my rule: “Never put anything online that you wouldn’t put on the front page of the newspaper.”

Bloggers Beware: Lessons from the Crystal Cox Case

92/365: Done? by PlayfulLibrarian

92/365: Done? by PlayfulLibrarian

This post was originally published on The Undeniable Ruth in December 2011. 

Many of us got into blogging because we like having a proverbial soapbox we can jump on to share our thoughts with the universe. The recent Crystal Cox case has made me wonder how many bloggers know the legal risk they take when they share their views.

For those of you who missed it, Crystal Cox is an “investigative blogger” in Montana who writes a blog called Bankruptcy Corruption. In one of her posts, she called Kevin Padrick, an attorney in Oregon, “a thug, a thief, and a liar.” Padrick sued Cox for defamation and won . . . $2.5 million!

The interesting thing for bloggers to note is that Cox lives and writes in Montana but she was sued in Oregon and Oregon law applied to the case.

If you write about other people, you open yourself up to the possibility of being sued for defamation or invasion of privacy. These cases are generally based on state laws. The good news is that there isn’t much variation between the laws. The bad news is that there are exceptions.

The really bad news is that the person who claims to have been injured by your blog gets to sue you in the state where they were injured, which is usually their home state. And it’s their home state law that applies. So, if you’re a blogger in Mississippi, and you write about someone in Alaska, and they sue you for defamation, you have to go to Alaska to defend yourself and hire an attorney who can defend you in Alaska. (Another lesson from the Crystal Cox case: don’t be your own attorney!)

Let’s look at the shield law, one of the laws Cox tried to use to defend herself. This is the law journalists invoke to prevent a court from forcing them to reveal an information source. There isn’t one national shield law. There are 40 different state shield laws, and some states don’t have a shield law. Cox tried to use the shield law to defend herself; and in another state, her argument may have held water. But unfortunately for her, the Oregon shield law specifically states that you can’t use the law as a defense in a civil defamation case.

Another challenge surrounding the legalities of blogging is that sometimes the laws are old, really old, as in the-internet-wasn’t-invented-when-the-law-was-written old. In a lot of these cases, the court has to decide how the laws apply to these new situations didn’t exist before we had the internet. You and the other side can propose your interpretation of the law, but there’s no guarantee that the court will accept your interpretation. And you might get really lucky and get a judge who barely knows how to turn on their computer and has no concept of what a blog is.

Someday the laws will be updated to account for the internet and blogging practices. Even when that happens, we will still have to be conscientious of the fact that each state has its own laws, and that we run the risk of being sued in any of the 50 states depending on who and what we write about.