A woman living in Staten Island must pay her flooring contractor $1,000. What did she do wrong; a negative review on Yelp.com. While the first amendment (freedom of speech) generally lets you critique your home improvement contractors (and anyone for that matter) and comment upon their quality of work and professionalism, the Judge in this case stated that the home owner went too far when she called her contractor a “con artist” and that he “robs” his customers and it is a “scam”.
Under Pennsylvania tort law, libel is defined as “a maliciously written or printed publication which tends to blacken a person’s reputation or expose him to public hatred, contempt or ridicule, or injure him in his business or profession.” Specifically, in an action for libel a plaintiff in Pennsylvania has the burden of proving each of the following:
- The defamatory character of the communication;
- Its publication (communicated to a third person) by the defendant;
- Its application to the plaintiff;
- The understanding by the recipient of its defamatory meaning;
- The understanding by the recipient of the communication as intended to be applied to the plaintiff;
- Special harm resulting to the plaintiff from its publication; and
- Abuse of a conditionally privileged communication.
I don’t want to get into the intricacies regarding each above element and corresponding defenses and privileges (for example, truth is an absolute defense to any defamation claim or that defamatory statements are allowed in company employee reports). However, I think it is important to recognize that the Judge in this contractor case merely applied the tried and true law of defamation of character in written form and found that the customer defamed her contractor. The mere fact that her “opinion” was posted online did not relieve her of any responsibility for not violating the laws of libel.
In his ruling, the Judge said that her post was “opinion and protected speech,” but several of her comments crossed the line from opinion to libel. “Terms such as ‘scam,’ ‘con artist’ and ‘robs’ imply actions approaching criminal wrongdoing rather than someone who failed to live up to the terms of an agreement,” the Judge said.. While I am sure this case will be appealed, the take away here is be sure not to cross the line when you post anything online. Your opinion is protected free speech but if you go too far, you may be held responsible for your actions. From a business owner perspective, have someone regularly review Yelp and FaceBook and other online forums to see if anyone is posting reviews that might damage your reputation. However, remember that if a review is negative does not mean it is defamation if it is couched as an opinion instead of as a fact.
If you have any questions regarding this topic or any other issue affecting your business, please feel free to contact Doug Leavitt at Danziger Shapiro.
This entry is presented for informational purposes only and does not constitute legal advice