False Bad Yelp Review

Bad Review on Yelp? Sue Your Former Customer! — Well, Maybe.

Much has happened since last November when a home contractor filed a lawsuit for $750,000 against a former customer for defamation. If you read the headlines across the news agencies, you saw, “Contractor Files Lawsuit against Customer for Bad Review. This is very misleading because it implies that the only reason the contractor filed suit was because the review was negative–suggesting that it had nothing to do with whether the comments were true or not. The judge granted a preliminary injunction requiring the homeowner to remove some of the most egregiously inaccurate (as alleged) statements from the Yelp review. However, the lawsuit, itself, caused some bad press for the contractor, compounding the harm of the original posting.  What do you if you find an outright lie on Yelp? Certainly not what the contractor did, which was to post his own negative Yelp remarks, alleging that the homeowner had “stolen” his goods and services since she never paid him for the job. That move cost him his victory.  In June, a jury found that although the homeowner had defamed the contractor, his later remarks also defamed her. Forget the $750,000. There was no award.

Statement of Fact

This is where an online reviewer can skirt some liability by making statements of opinions instead of facts. This has a fine line. A statement of fact implies a provably false factual assertion while a statement of opinion does not. The main purpose of this distinction is to walk to the line of where freedom of speech begins and ends; however, spreading false opinions that imply the allegation of undisclosed defamatory facts as their basis is beyond free speech. Also of great importance is the context of the speech, what the reader is likely to conclude from the statements. For example, saying that this plumber is a “thief” because he charges an arm and leg is probably more of an opinion because there is no fact to prove false since whether a plumber is expensive is subjective and an opinion; compare that to a review that says this plumber is a “thief” and so I called the cops on him–this implies he is an actual thief, a provable (or disprovable) fact.

Damages

If argued properly, an injured business could not only get an order requiring the slanderous review to be removed but also obtain damages for the harm to reputation and even specific lost business opportunities if proved accordingly.

The Actual Review on Yelp Being Sued For

Here is the review in full from AngelsList.com:

Overall: F Price: F Quality: F Responsiveness: F Punctuality: F Professionalism: F Description of Work: Dietz Development was to perform: painting, refinish floors, electrical, plumbing and handyman work. I was instead left with damage to my home and work that had to be reaccomplished for thousands more than originally estimated. Member comments: My home was damaged’ the “work” had to be re-accomplished; and Dietz tried to sue me for “monies due for his “work.” I won in summary judgement (meaning that his case had no merit). Despite his claims, Dietz was/is not licensed to perform work in the state of VA. Further, he invoiced me for work not even performed and also sued me for work not even performed. Today (six months later) he just showed up at my door and ‘”wanted to talk to me.” I said that I “didn’t want to talk to him,” closed the door , and called the police. (The police said his reason was that he had a “lien on my house”; however this “lien” was made null and void the day I won the case according to the court.) This is after filing my first ever police report when I found my jewelry missing and Dietz was the only one with a key. Bottom line do not put yourself through this nightmare of a contractor.

Not exactly a glowing review. Highlighted above are statements that may be considered “statements of fact” and if false could definitely lead to damages against the reviewer. Included in these highlighted statements are ones the judge ordered removed after hearing only a small amount of testimony in a preliminary injunction. Notice that a majority of the comments can be construed as fact because they could be proved otherwise and it’s not a matter of opinion. Compare that to the letter grades given of straight F’s which are complete opinion.

Do Not Pay People to Write Positive Online Reviews

First and foremost, posting false positive reviews and paying for it will be against the terms of service of the website. For example, back in October of this year, Yelp announced that it would start showing warnings to users when they have found businesses that have paid for reviews. A “Consumer Alert” will appear on those listings. Yelp has said they have caught people red-handed trying to buy reviews for their business and they wanted to do something about it because buying reviews not only hurts consumers, but also honest businesses who play by the rules. Second, this is like paying for false testimonials. There are a number of statutes and regulations that vary state to state regarding advertising, but FTC guidance controls on this issue, prohibiting “unfair and deceptive acts or practices in commerce.” There may be a fine line between giving incentives for any reviews versus paying for them as the FTC has expanded its regulation to include online reviews requiring the authors to disclose they are being paid to do so (which of course would defeat its purpose).

Dealing with A False Customer Review

Another recent Virginia case deals with the perplexing problem of anonymous Yelp reviews that may be phony.  The legal fighting has not yet gotten to the issue of defamation. It remains about whether Yelp must disclose the identities of the individuals writing negative reviews. After it chose to stop advertising with Yelp, a carpet cleaning business suddenly began to rack up anonymous negative reviews. Many of the seven reviews in question used similar language and repeated similar themes about deceptive advertising and doubled prices. One was from a state in which the carpet cleaner conducts no business. The business claimed that it could not match these negative reviews with actual customers, and that the reviews were therefore in violation of Yelp’s Terms of Service which requires that users actually patronize a business before writing a review. In its defamation suit, the carpet cleaner further claimed that it cannot determine if the claims about price and advertising are false because it cannot tell who the customers are. There is, of course, some reason to believe that the claims about actual patronage are not true. Anonymous statements of opinion are protected under the First Amendment, and Yelp has fought fiercely against the subpoenas that would require it to disclose the identities of the negative reviewers, even to the extent of paying fines for being found in contempt of court. When the shoe was on the other foot, Yelp was successful in a lawsuit based on breach of contract, unfair competition and false advertising against authors of phony positive reviews. This could get interesting. The Virginia Supreme Court will hear the case in the near future. For some businesses, filing a lawsuit right away may sound good, but as we have seen it can backfire pretty quickly once people find out you are suing your former customers. As in all litigation matters, dealing with things before it is a problem is of utmost importance and when does become an issue, dealing it before it escalates is imperative. When you do get a bad review, see what you can do for the customer directly to address his or her concerns–in the long run it will make a significance difference. For some businesses, a few negative reviews here and there is the cost of doing business especially when you already have a bunch more positive reviews. For example, a restaurant bar and grill recorded their negative reviews and started playing them in their bathroom.  One pizzeria owner reportedly reprints nasty Yelp reviews on employee t-shirts. As a general rule, litigation should be a last resort. Most do not realize the expense and toll that it can play on the wallet and mind.

Why Not Just Sue Yelp?

Yelp itself is protected by Section 230 of the Communications Decency Act and cannot be held liable for these kind of acts. Section 230 grants interactive online services of all types, including news websites, blogs, forums, and listservs, broad immunity from certain types of legal liability stemming from content created by others. This immunity covers defamation and privacy claims, as well as negligence and other tort claims associated with publication. Yelp or other review sites will not lose this immunity even if they edit the content, whether for accuracy or civility, so long as the edits do not materially alter the meaning of the original content.

Former Employee Spilling the Beans Online

Besides just negative reviews from customers, former employees of businesses may get into the mix. Notwithstanding a defamation claim as discussed, non-disparagement agreements with employees are generally enforceable, but the scope and in what circumstances may be severely restricted as to how the clause is drafted but most importantly by whistle-blower statutes and general rights of freedom of speech.

Anti-SLAPP Motion: A Scary Threat to Suing Your Customers for Defamation

SLAPP stands for strategic lawsuits against public participation. It is a tool in California and some other states that can be very useful for defendants in protecting freedom of speech; without an anti-SLAPP statute, a malicious business could inflict substantial expense and hardship upon someone in retaliation for their speech, even if their claim is without merit.  If done properly, such a motion shifts the burden on the plaintiff to prove that they are likely to win their case based upon the evidence provided. Losing such a motion would not only stop the lawsuit on its track but also expose the plaintiff to attorney’s fees–a scary threat to any defamation lawsuit.

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  • Ep 45: All You Can Eat and Paying Minimum Wage

    May 23, 2014

    The guys talk about all you can eat buffets implementing surcharges for unclean plates.  They then address, “I have an minor working for me who said they would work for half of what the minimum wage is. Can I legally do this?”

    Read More
  • Ep 44: Are Secret Apps Really Secret with Daniel Libby

    May 21, 2014

    Nasir and Matt welcome security guru Daniel Libby to discuss the issues involved with the secrecy of whistleblower apps, and answer the question, “We had an issue with some customer info that was compromised. Should we tell our customers, and if so, how?”

    Read More
  • Ep 43: The House That Johnny Manziel Built

    May 19, 2014

    Nasir and Matt talk about the trademark filing surrounding Johnny Manziel and Texas A&M.  They also answer the question, “Can I put anything in my contracts that prevents my customers from leaving a negative Yelp review?”

    Read More
  • Ep 42: Snapchat Battles the FTC

    May 16, 2014

    The guys discuss Snapchat’s seemingly minor punishment for misrepresentations about its privacy policy and answer, “How do I decide what salary to pay myself?”

    Read More
  • Ep 41: Copyright Infringement of Mobile Games

    May 14, 2014

    Nasir and Matt welcome Jesse Lindsley to talk about people are ripping off successful mobile games and answer the question, “My partners and I have been developing an online software and a mobile app, but we are wondering if we should split the mobile aspect of our business into a separate LLC since not everyone is […]

    Read More
  • Ep 40: Workplace Loans to Employees

    May 12, 2014

    Nasir and Matt discuss the trend of employers providing loans to employees and answer the questions, “I know I need to pay some of my employees more to prevent them from leaving but I won’t have the revenue for another 6 months, what else can I do to keep them in the mean time?”

    Read More
  • Ep 39: Start a Fad Business & Business Bartering

    May 09, 2014

    Nasir and Matt talk about how a businesses based on a fad can succeed and answer, “I don’t have money to pay for certain services. Can I trade my products for other company’s services?”

    Read More
  • Ep 38: Creepy Privacy Policies & Protecting Proprietary Info

    May 07, 2014

    The guys discuss how companies use the data they collect and answer, “How can I make sure my employees don’t steal my proprietary info after they leave?”

    Read More
  • Ep 37: The Law Behind Donald Sterling’s Ban & Firing Annoying Employees

    May 06, 2014

    Nasir and Matt discuss the legalities behind the NBA banning Donald Sterling and answer the question, “One of my employees is very annoying. He does great work but I can tell he is not liked by most coworkers. I also know he will sue if I fire him. How can I handle this best?”

    Read More
  • Ep 36: How Workplace Relationships Affect Culture

    May 02, 2014

    Nasir and Matt discuss the story of a woman’s claim of sexual harassment at the software company Github.  They then answer the question, “Is it a good idea to get a patent before I start my company or wait down the road?”

    Read More
  • Ep 35: Roy Daya the Startup Guru

    April 30, 2014

    Nasir and Matt welcome business guru Roy Daya.  They talk about why a business might fail after an acquisition and answer the question, “I have put in many years to get my business profitable and just reached that goal this past year. We have a sound business model in place and secured investments so we […]

    Read More
  • Ep 34: Working at Walmart

    April 28, 2014

    Nasir and Matt discuss the Walmart that claimed its employees were home on Easter but were really working in the store.  They also answer the question, “I gave a small ownership interest to a friend. Now he refuses to do any voting in which a shareholder vote is required. I have the majority so do I need […]

    Read More
  • Ep 33: Working Remotely

    April 25, 2014

    Nasir and Matt talk about Amazon’s offer to employees to take cash to quit and answer a question on hiring employees to work remotely.

    Read More
  • Ep 32: Heartbleed

    April 23, 2014

    The guys discuss the effect of the Heartbleed virus on small businesses and then provide guidance on exempt employees.

    Read More
  • Ep 31: Hell’s Kitchen

    April 21, 2014

    Nasir and Matt discuss a lawsuit involving Gordon Ramsay and his business partner.  They then address the question of whether an attorney or a CPA should take priority.

    Read More
  • Ep 30: Culture is King

    April 18, 2014

    Nasir and Matt discuss UPS laying off 250 employees over the decision by one worker.  They also answer a question on the best techniques to keeping employees long-term. Update: Those 250 employees have been rehired.

    Read More
  • Ep 29: Working Overtime

    April 16, 2014

    Nasir and Matt address the problem surrounding employees not taking vacation.  The two also talk about overtime pay in the question of the day.

    Read More
  • Ep 28: Toothless Stock

    April 14, 2014

    Nasir and Matt talk about Google’s new class of stock that has no voting rights, as well as how to bring on investors without losing equity in the company.

    Read More
  • Ep 27: Ronald McDonald

    April 11, 2014

    Nasir and Matt discuss the commercials featuring Ronald McDonalds approving of Taco Bell’s breakfast.  They also attack the independent contractor misclassification issue from the employee perspective in the question of the day.

    Read More
  • Ep 26: Items of Flair

    April 09, 2014

    Nasir and Matt talk about the lawsuit over items of flair from Office Space and answer a question on options in purchasing a business.

    Read More
  • Ep 25: PiinPoint

    April 07, 2014

    Nasir and Matt discuss the potential benefit of PiinPoint, the digital location finder, will have on small businesses.  They also answer a question on whether you should make the first draft a contract.

    Read More
  • Ep 24: Candy Crushed

    March 31, 2014

    Nasir and Matt discuss the IRS deciding that Bitcoin is property and not currency, the recent ruling that college football players may unionize, a lawsuit filed over an asset purchase gone wrong, and why one early investor is not excited about the Candy Crush IPO.  They also answer questions about putting the “LLC” designation after […]

    Read More
  • Ep 23: Bracket Busters

    March 24, 2014

    Nasir and Matt start things off by discussing PayPal’s decision to stop freezing accounts for crowdfunding, as well as Starbucks licensing its mobile payment system, a company having to advance legal fees for a manager, and which NCAA tournament bracket contests are legal.  They also answer questions about what to discuss at board meetings, corporate […]

    Read More
  • Ep 22: Podcast Patents

    March 17, 2014

    In this week’s episode, Nasir and Matt welcome attorney Mark Wisnosky to discuss the ongoing legal battle involving patents on podcasts and legal crowdfunding.  They also talk about a class action lawsuit against McDonald’s, the proposed new rules for overtime pay, and Uber’s smart move to increase its insurance policies.  Nasir and Matt also answer […]

    Read More
  • Ep 21: Taking Selfies

    March 10, 2014

    This week’s episode examines who owns the selfie taken at the Oscars, why one food truck is facing criminal charges, how Getty Images is making some of its photos free, and a teen’s Facebook post that may cost her dad $80,000.  Nasir and Matt also field questions about who owns work created by an employer’s […]

    Read More
  • Ep 20: Best of the Podcast

    March 05, 2014

    This week’s episode features the best moments through the first 20 podcasts.  Topics include the popular sauce vs. crust debate, having your employees work on Thanksgiving, the interview with Jerry Sanders,  legalities of running a fake promotion, Texas A&M licensing the 12th man to Seattle, and the first and last employee vs. independent contractor discussion. […]

    Read More
  • Ep 19: Capital One, What’s in Your Home

    February 24, 2014

    Nasir and Matt start the show off discussing Facebook’s newest acquisition (WhatsApp), how Capital One’s credit card policy allows entry into consumer’s homes, the importance of new top level domains to small businesses, and how to not respond to a (fake) employee quitting.  They also answer questions concerning about hiring a minor, what expense you can […]

    Read More
  • Ep 18: Dumb Starbucks

    February 17, 2014

    In this week’s episode Nasir and Matt discuss the Dumb Starbucks store that surfaced in Los Angeles, an NFL player voiding his contract for more guaranteed money, and employees at Starbucks questioning a disabled veteran with a service dog.  They also welcome special guest Reggie Lal to discuss Ponzi schemes in real estate investing.  Nasir and Matt […]

    Read More
  • Ep 17: The 12th Man

    February 10, 2014

    Nasir and Matt kick off this week’s episode by discussing Microsoft partnering with Foursquare.  They also talk about Texas A&M licensing use of the “12th Man” to the Seattle Seahawks, the FTC going after a mega spammer, and the backlash by developers of King.com’s “candy” trademark.  Nasir and Matt answer questions about legal concerns of running […]

    Read More
  • Ep 16: Another Show about Pizza?

    February 03, 2014

    In this week’s episode, Nasir and Matt discuss some of Obama’s planned executive actions for 2014, Ohio pizzerias breaking employment laws, the importance of forum selection causes in contracts, and the crazy story behind one man losing his Twitter handle.  They also answer questions about changing business agreements, being an at-will employee, and running multiple […]

    Read More
  • Ep. 15: Fresh Off the Press

    January 27, 2014

    Nasir and Matt discuss a new law mandating paid sick leave for employees in New York City, the Union-Tribune in San Diego losing a lawsuit for misclassifying independent contractors, small businesses finding another loophole in the Affordable Care Act, and one person’s opinion to never do online banking for your business.  They also answer questions […]

    Read More
  • Ep. 14: A Golden Ticket Promotion

    January 20, 2014

    Nasir and Matt start things off by discussing one company’s huge victory over Yelp, and then get into Staples’ motives for cutting the hours of part-time employees and the FTC cracking down on Sensa for weight loss claims.  The two give a call to former gym owner, Noah Mangus, to discuss cancellation policies for gyms and the […]

    Read More
  • Ep. 13: Seacrest Out, Blackberry In

    January 13, 2014

    Nasir and Matt discuss Blackberry’s lawsuit against Ryan Seacrest, the changes to the small business health care tax credit, when unpaid volunteers can be considered employees, and combating bad weather for a business.  The two also answer questions about being responsible for debt in dissolved companies, valuation ideas for startups, and a partner withholding access […]

    Read More
  • Ep. 12: Ringing in the New Year, in Texas?

    January 06, 2014

    Nasir and Matt kick off 2014 discussing the new changes to Obamacare, a bookkeeper stealing from the business she works for, the consequences of raising minimum wage, and the backlash surrounding Uber’s surge pricing.  They also answer questions about paying yourself in an LLC, copyright infringements in a t-shirt printing business, and working with international […]

    Read More
  • Ep. 11: That’s What She Said

    December 30, 2013

    In the final episode of 2013, Nasir and Matt discuss an age discrimination case involving the Maui police department, FICO opening up to small businesses, the lawsuit over a copyright on the Baltimore Ravens’ logo, and the merger of Elance and oDesk.  The two also answer questions concerning starting a business at the end of […]

    Read More
  • Ep. 10: Smart San Diego Business with the Mayor

    December 23, 2013

    For the 10th episode of the podcast, Nasir and Matt welcome Jerry Sanders, President and CEO of the San Diego Chamber of Commerce and former mayor of San Diego.  The three of them discuss the jobs outlook in San Diego for 2014, the importance of retaining quality employees, and the value of craft breweries in […]

    Read More
  • Ep. 9: Phil Mickelson’s Home Office (he’s a golfer)

    December 16, 2013

    This week’s episode kicks off by discussing a photographer winning a lawsuit against Getty Images, businesses in Washington getting scammed over workplace posters, disability lawsuits targeting small businesses, Domino’s Pizza involved in a minimum wage dispute, and an animated reenactment of a recent Bob Filner suit.  Nasir and Matt also answer questions about someone stealing your business’ name, […]

    Read More
  • Ep. 8: Too Hot to Work & Too Cold to Shop

    December 09, 2013

    Nasir and Matt discuss Amazon’s refusal to sell a company’s products, one company’s lawsuit against a customer who wrote a negative review, Swarm Mobile’s attempt to track consumers inside stores, and the most recent lawsuit filed by the woman claiming to be too hot.  The two also answer questions about dissolving a company with debt, bringing […]

    Read More
  • Ep 7: Patent Trolls

    December 02, 2013

    In this week’s episode, Nasir and Matt debate how patent firms affect small businesses, discuss the importance of Small Business Saturday for local businesses, and analyze the lawsuits surrounding companies offering fake markdowns–anyone hear of false advertising?  The two also welcome guest Tyler Jensen of The Startup Garage, who offers his take on making financial […]

    Read More
  • Ep 6: Mining for Bitcoins

    November 25, 2013

    Tyler Sickmeyer of Fidelitas Development crashes the podcast, offering his perspective on stories about lawsuits surrounding the legitimacy of negative Yelp reviews, the crackdown on Airbnb and the sharing economy, the possibility of Facebook disappearing, and the legalities of fake online profiles.  Tyler also assists Nasir and Matt in answering questions about making employees work […]

    Read More
  • Ep. 5: Bean Counting with the IRS

    November 18, 2013

    This week Nasir and Matt discuss the legalities of Google’s virtual library, the lawsuit brought by Yelp reviewers, and watching porn in the workplace.  They also discuss the IRS shifting its audit focus with the help of Brad Gastineau of Gatto, Pope & Walwick, LLP.  Nasir and Matt also answer questions about employees making special […]

    Read More
  • Episode 4: Sauce vs. Crust

    November 11, 2013

    This week’s episode features stories about restaurant trade secrets, the falling out of a coffee shop partnership, and the assumption of risk involved in attending sporting events.  Nasir and Matt also answer questions about what a business should trademark, getting compensated for free services, and how to fire an employee.  Matt also recounts his experience […]

    Read More
  • Episode 3: Big Yellow Taxi

    November 04, 2013

    In their third episode, Nasir and Matt debate the significance of company culture, voice their opinions on legal directories, and discuss a newly formed taxi cab union.  They also answer questions about an employee taking his company’s domain name, whether it’s better to purchase or start a business, and the difference between employees and independent […]

    Read More
  • Episode 2: Chicago’s Deep Dish Pizza

    October 29, 2013

    Nasir and Matt discuss the questionable business decision that led to Deepak Chopra’s lawsuit, a new insight into Twitter’s valuation, the class action lawsuit of the week involving some big names participating in no-hire pacts, and new SEC proposals for crowdfunding.  Nasir and Matt also answer questions about ending a business partnership, the effect of non-competes, making […]

    Read More
  • Episode 1: Basement Slave Labor

    October 21, 2013

    In our first episode, we answer questions sent to Top Floor Legal regarding the legal needs of businesses.  We also cover the most recent Amazon lawsuit, the Legal Zoom v. Rocket Lawyer case, and the situation surrounding Arian Foster taking himself public.  We close by discussing a perplexing blog post on how to draft your own contract.

    Read More
  • Kriticas

    Yelp is allowing false reviews from “unhappy” customers -But Yelp wasn’t there so Yelp DOES NOT know the details of the business transaction, therefore Yelp should investigate the bad reviews, or allow businesses to contest and provide proof of that the bad reviews are false -But Yelp Does Not care, Yelp people said to me that their policy is to provide “customer satisfaction” -but Yelp is hurting honest businesses, because they are allowing false reviews from bad and dishonest customers!

    • Angela O’Brien

      Its called “flagging a review”
      I have had problems with one particular customer who didn’t get her way and first posted a review as a friend and when it was flagged. She rewrote as herself stating false information and saying we were probably writing our own reviews or paying people to do so. It is a filtered review but again I flagged and if they don’t erase it this time, I will have to write a comment in defense. But after reading this article, I definitely won’t be suing her, unless she tried to sue me first

  • Free Speech

    Article by: ABBY SIMONS , Star Tribune

    Finding no harm done, justices toss out lawsuit by Duluth physician.

    Dennis Laurion fired off his screed on a few rate-your-doctor websites
    in April 2010, along with some letters about what he saw as poor bedside manner
    by his father’s neurologist. He expected at most what he calls a
    “non-apology apology.”

    “I really thought I’d receive something within a few days along the
    lines of ‘I’m sorry you thought I was rude, that was not my intent’ and that
    would be the end of it,” the 66-year-old Duluth retiree said. “I
    certainly did not expect to be sued.”

    He was. Dr. David McKee’s defamation lawsuit was the beginning of a
    four-year legal battle that ended Wednesday when the Minnesota Supreme Court
    ruled the doctor had no legal claim against Laurion because there was no proof
    that his comments were false or were capable of harming the doctor’s
    reputation.

    The unanimous ruling reverses an earlier Appeals Court decision and
    brings to an end the closely watched case that brought to the forefront a First
    Amendment debate over the limits of free speech online.

    It’s a frustrating end for McKee, 51, who said he’s spent at least
    $50,000 in legal fees and another $11,000 to clear his name online after the
    story went viral, resulting in hundreds more negative postings about him –
    likely from people who never met him. He hasn’t ruled out a second lawsuit
    stemming from those posts.

    “The financial costs are significant, but money is money and five
    years from now I won’t notice the money I spent on this,” he said.
    “It’s been the harm to my reputation through the repeated publicity and
    the stress.”

    He said he offered to settle the case at no cost after the Supreme Court
    hearing. Laurion contends they couldn’t agree on the terms of the settlement,
    and said he not only deleted his initial postings after he was initially
    served, but had nothing to do with subsequent online statements about McKee.

    The lawsuit followed the hospitalization of Laurion’s father, Kenneth,
    for a hemorrhagic stroke at St. Luke’s Hospital in Duluth. Laurion, his mother
    and his wife were also in the room when McKee examined the father and made the
    statements that Laurion interpreted as rude. After his father was discharged,
    he wrote the reviews and sent the letters.

    On at least two sites, Laurion wrote that McKee said that “44 percent
    of hemorrhagic strokes die within 30 days. I guess this is the better
    option,” and that “It doesn’t matter that the patient’s gown did not
    cover his backside.”

    Laurion also wrote: “When I mentioned Dr. McKee’s name to a friend
    who is a nurse, she said, ‘Dr. McKee is a real tool!’”

    McKee sued after he learned of the postings from another patient. A St.
    Louis County judge dismissed the lawsuit, saying Laurion’s statements were
    either protected opinion, substantially true or too vague to convey a defamatory
    meaning. The Appeals Court reversed that ruling regarding six of Laurion’s
    statements, reasoning that they were factual assertions and not opinions, that
    they harmed McKee’s reputation and that they could be proven as false.

    The Supreme Court disagreed. Writing the opinion, Justice Alan Page
    noted that McKee acknowledged that the gist of some of the statements were
    true, even if they were misinterpreted. Page added that the “tool”
    statements also didn’t pass the test of defaming McKee’s character. He
    dismissed an argument by McKee’s attorney, Marshall Tanick, that the
    “tool” comment was fabricated by Laurion and that the nurse never existed.
    Whether it was fabricated or not was irrelevant, the court ruled.
    “Referring to someone as ‘a real tool’ falls into the category of pure
    opinion because the term ‘real tool’ cannot be reasonably interpreted as
    stating a fact and it cannot be proven true or false,” Page wrote.

    Marshall Tanick said the ruling could present a slippery slope. “This decision gives individuals a license to make derogatory and disparaging statements about doctors, professionals and really anyone for that matter on the Internet without much recourse,” he said

    Jane Kirtley disagreed. The professor of media ethics and law at the
    University of Minnesota School of Journalism said the ruling stems from
    “an elementary principle of libel law. I understand the rhetoric, but this
    is not a blank check for people to make false factual statements,” she
    said. “Rather, it’s an endorsement that statements of opinion are
    protected under the First Amendment.”

    Laurion’s attorney, John D. Kelly, said the fact that Laurion’s speech
    was made online was inconsequential to the ruling, which treated it as a
    standard defamation case. “It’s almost as if things were said around the
    water cooler or perhaps posted in a letter to the editor,” he said.
    “I think the principles they worked with are applicable to statements made
    irrespective of the medium.”

    Full article:
    http://www.startribune.com/local/189028521.html?refer=y

    • Harry Nevus

      This is from an April 4, 2014, Buzzfeed article by Jake Rossen.

      David McKee, M.D., a Duluth, Minn., neurologist, was unaware of the
      Streisand phenomenon at the time he decided to sue Dennis Laurion. Laurion’s
      father, Kenneth, had suffered a stroke in April 2010; McKee was called in to
      assess Kenneth’s condition.

      According to the Laurions, McKee was oblivious to Kenneth’s modesty. “His
      son was right there,” McKee counters. “If he was concerned about the gown, he
      didn’t get out of his chair to tie it.”

      Dennis Laurion consulted with his family to see if his impression of the
      arrogant doctor was real or imagined. He fired off a dozen or more letters to a
      variety of medical institutions, including the hospital’s ombudsman, the
      Minnesota Board of Medical Practice, Medicare, and the American Medical
      Association.

      McKee sued Laurion for defamation. A local Duluth newspaper picked up on the
      story, favoring Laurion’s interpretation of events.

      In April 2011, the judge granted Laurion’s motion for summary judgment,
      ruling his comments were protected free speech. A user on Reddit.com posted the
      newspaper story. Almost overnight, dozens of “reviews” popped up on RateMDs.com
      and other sites with outlandish commentary on McKee, who was referred to as
      “the dickface doctor of Duluth.”

      McKee found no easy way to exit the situation. “You get drawn in,” he says,
      suggesting his lawyer ( * ) nudged him into further action. “It’s throwing good money
      after bad. … I wanted out almost as soon as I got in, and it was always, ‘Well,
      just one more step.’” McKee appealed, and the summary judgment was overturned.
      The case, and the measurable impact of being labeled a “real tool,” was now
      headed for the Minnesota Supreme Court.

      McKee was rated for several years as a top provider in Duluth Superior
      Magazine, but“From now until the end of time, I’ll be the jerk neurologist who
      was rude to a World War II veteran,” the physician says. “I’m stuck with it
      forever.”

      ( * ) Marshall H. Tanick

      • naspasha

        Thank you for the share. Classic situation. When you are paying an attorney to litigate on your behalf, he or she has an incentive to push you into litigation even if not in your best interest. Even the honest attorneys have this underline incentive.

    • Uranus

      [[ Marshall Tanick said the ruling could present a slippery slope. "This
      decision gives individuals a license to make derogatory and disparaging
      statements about doctors, professionals and really anyone for that
      matter on the Internet without much recourse," he said. ]]

      From the American Health Lawyers Association: In this case, the court found the six allegedly defamatory statements were not actionable because the “substance, the gist, the sting” of
      plaintiff’s version for each of the statements as provided in deposition and
      defendant’s version essentially carried the same meaning, satisfied the
      standard for substantial truth, did not show a tendency to harm the plaintiff’s
      reputation and lower his estimation in the community, or were incapable of
      conveying a defamatory meaning (e.g., when a nurse told defendant that
      plaintiff was “a real tool”) based on “how an ordinary person understands the language used in the light of surrounding circumstances.”

      From the Business Insurance Blog: The Minnesota high court said, for instance,
      that Dr. McKee’s version of his comment about the intensive care unit was
      substantially similar to Mr. Laurion’s. “In other words, Dr. McKee’s account of
      what he said would produce the same effect on the mind of the reader,” the
      court said. “The minor inaccuracies of expression (in the statement) as
      compared to Dr. McKee’s version of what he said do not give rise to a genuine
      issue as to falsity.”

      From the Duane Morris Media Blog: The doctor said in his deposition that
      with regard to finding out if Mr. Laurion was alive or dead, “I made a
      jocular comment… to the effect of I had looked for [Kenneth Laurion] up
      there in the intensive care unit and was glad to find that, when he
      wasn’t there, that he had been moved to a regular hospital bed, because you
      only go one of two ways when you leave the intensive care unit; you either have
      improved to the point where you’re someplace like this or you leave because
      you’ve died.” The court said the differences between the two versions of the
      statements about death or transfer by both plaintiff and defendant were so
      minor that there was no falsity in the website postings. In other words, the
      court indicated that the allegation about the statement was true.

      In reply to an e-patients.net article “Minnesota Supreme Court sides with patient
      on social media defamation suit,” Attorney Marilyn Mann said, “I think McKee’s
      lawyer is incorrect. The case turned on standard principles of defamation law
      and doesn’t really break new ground.”

      According to the Duluth News Tribune, Minnesota Newspaper Association attorney Mark
      Anfinson, who watched the oral arguments before the Supreme Court in September,
      said that the justices made the right decision. Anfinson also told the News
      Tribune, “What this case really exemplifies is not so much legal precepts in
      libel law, but the impact of the Internet on the ability to publish
      unflattering comments about people.”

      The Mankato Free Press said in February 2013: “It’s puzzling
      why McKee’s defamation lawsuit — filed nearly four years ago — was still in
      court. It’s long been established that people may spout any opinion they want
      without fear of being sued . . . It’s unsettling that the Appeals Court earlier ruled to allow the suit to continue.”

      In his Technology & Marketing Law Blog, Eric Goldman said on February 4, 2013,
      “I’ve been tracking doctor v. patient lawsuits for online reviews. . . doctors
      usually lose or voluntarily drop these lawsuits. Indeed, with surprising
      frequency, doctors end the lawsuit by writing a check to the defendant for the
      defendant’s attorneys’ fees where the state has a robust anti-SLAPP law.
      Doctors and other healthcare professionals thinking of suing over online
      reviews, take note: you’re likely to lose in court, so legal proceedings should
      be an absolute last-resort option–and even then, they might not be worth
      pursuing.”

      Dan Hinmon, the principal of Hive Strategies, wrote for Health Care Communication, on
      March 21, 2013, “According to the Star Tribune, McKee is now ticked off at the people
      who posted hundreds more negative comments about him after the story went
      viral. Incredulously, the story reports that McKee ‘hasn’t ruled out a second
      lawsuit stemming from these posts.’ Yes, you read that right. After spending ‘at
      least $50,000 in legal fees and another $11,000 to clear his name online after
      the story went viral,’ McKee is considering suing the rest of the people who,
      exercising their right of protected speech, chimed in. I’m speechless.”

  • Jojo

    Yelp is not helpful , yelp will post negative reviews and hold back good reviews !!!!! Why ? Can they be sued for this?

    • http://www.bluewavewebdesign.com/ Blue Wave Web Design

      I noticed that too, good reviews tend to get hidden

  • Justin Olshan

    id love to get together with other people and file suite yelp, they called me to pay them for advertisement when i declined they took down my positive reviews and left the negative reviews inbox me if anyone is interested in jiont siute

    • http://www.bluewavewebdesign.com/ Blue Wave Web Design

      Yelp does hides positive results from real people when there is a negative result. I would focus on Google+, they are a lot better at handling fake reviews.

  • http://www.bluewavewebdesign.com/ Blue Wave Web Design

    Suing is expensive.

    My advice to business owners is that if you know who is posting
    lies about your business, they are being abusive and will not be reasonable
    when you approach them; you can expose the full name of the perpetrator and what
    they are doing in your reply.

    That information will show up in searches about them and can provide an incentive to
    stop.

    • naspasha

      Interesting suggestion.

      • http://www.bluewavewebdesign.com/ Blue Wave Web Design

        I did that once, and it worked.
        Some crook wanted to get work delivered without paying for it, and tried to force it by extortion. He placed nasty lies, I responded with the facts, stating that he was late on his bills, and the work would not be delivered until he pays his overdue bills. My response appeared on the 2nd page when searching his name. When he realized that, he took his lies (and my response) down.

        • Joseph Erle

          I like how you handle this. Good work getting paid. Have you changed your payment requirements since working with this guy?

          • http://www.bluewavewebdesign.com/ Blue Wave Web Design

            Yes, I now charge 30% upfront, I don’t take nags trying to get heavy price cuts, and contracted a collections agency.

          • Joseph Erle

            Good idea. Hopefully, businesses can learn from this story and not have to learn the hard way like you did.

  • Joseph Erle

    “Section 230 of the Communications Decency Act and cannot be held liable for these kind of acts. Section 230 grants interactive online services of all types, including news websites, blogs, forums, and listservs, broad immunity from certain types of legal liability stemming from content created by others.”
    -Thanks for sharing this info with me. I was unaware that this statute was in place. Like any statute, I’m sure that there are exceptions. In addition, just because there is a statute, it doesn’t mean you can’t get sued anyway. I would tell anyone with a popular blog, forum, or media outlet to get proper insurance. Counsel can use Section 230 to defend you, but at least you’ll have defense (included with the correct media insurance policy). A good Terms of Service (TOS) is also going to be your first line of defense. Team up with an experience law firm such as Pasha Law to get that done, so you can put to bed frivolous law suits quickly and move on with your business.

  • kristine08

    Attorneys are the biggest babies of all professions. One bad review and suddenly, they take interest in you, but never did while they were retained.
    The threats that ensues from these bullies is laughable at best. It is MY experience with your firm, and I have the documents to back up what I wrote. The best defense against libel is TRUTH.

    I am being told via email, that I have 15 days to remove my avvo, yelp and word press reviews, “or else I am going to file a lawsuit and you better not transfer your house to anyone.”

    They act like they give all of us the same due diligence. There is no ethics with attorneys. I learned that much.

    • baz

      thats not so bad, i once had the lawyer from hell, during my first face 2 face meeting with my lawyer while i was detained by the government my lawyer threatened my life, this was to warn me against reataliating against her in the future if i didnt like the way she represented me and or didnt like the outcome of my case, my lawyer later colluded with the opposition gov against me while representing me, she also gave me ridiculously bad advice that was obviously puropsly intended to get me into trouble if i followed her aevice such as telling me if the police or social services ever come 2 my home again that i shouild verbally abuse them and also throw a bucket of water or urine over them, my lawyer turned a blind eye 2 me being renditioned and she warned me against informing the authorities if i was beaten or raped by state workers while i was detained, my lawyer als tried to extort money from me and again gave me death threats before going and i never saw her again, she colluded with the authorities to leave me in custody without leghal reprsentation.

    • Dennis

      Good luck. I wish you success.

  • baz

    as a non jew athiest i dont like it that jews claim -

    1. jews claim there is a god and that them being circumsized is proof of this.
    2. jews claim that god likes and favours jews over non jews and god gave them a country.
    3. jews claim that god always saves jews such as saving them from hitler.
    4. that jews are willing to occupy a land and kill on the basis of their unprovable claims.

    in regards to number 2, isnt this defamation when jews make these claims that put non jews down and so can i/non jews sue jews/synogouges/state of israel.
    in regards to number 3, it is a known fact that the brit, US and russian militaries saved the jews and there is no proof that god saved them or assisted in the saving of them, as my british grandparents faught the germans in europe in ww2 then the jews unproven claims that god saved them offends me and smears my dead grandparents name and honour so can i sue jews/synogogues/state of isreal.
    inregards to 4, if jews r willing to seize another persons property and land and also be willing to injure and kill persons/non jews because of an unproven belief then shouldnt jews be incarerated in a mental asylum to protect non jews from them

  • Content Scraper

    “A Portland dentist is suing a former patient for what the dentist claims are defamatory reviews in online forums.”

    By Sam Stites, Willamette Week

    Dr. Mo Saleh, of Dental Dynamics, originally filed suit against Spencer Bailey in Multnomah Circuit Court on June 26 seeking $300,000 after Bailey wrote about Saleh’s dental skills on Yelp, DoctorOogle.com and Google. In his lawsuit, Saleh says Bailey posts caused damage to his reputation, loss of profits and emotional distress.

    The reviews cited in the complaint include statements saying Bailey implied ”improper and insufficient dental services by Dr. Saleh.” The complaint further alleges that Bailey wrote, “if Dr. Saleh tells you that you have a cavity — GET A SECOND OPINION.”

    According to the complaint. Bailey said he had never had a cavity in 32 years until Saleh found several. Bailey’s lawyers have responded by stating that Bailey went to Saleh for dental work and then went to another dentist after experiencing pain. They claim that the other dentist advised Bailey that some
    of the fillings were unnecessary and some were poorly put in.

    Bailey’s attorneys, Jeremiah Ross and Linda Williams, also claimed that Saleh contacted Bailey after he reviewed the dentist on various web sites, threatening him to remove them. They say Bailey removed the postings out of concern for his and his family’s safety. Even though Bailey removed the postings, Saleh is proceeding with his suit. (Saleh’s lawyer declined to comment.)

    As online commentary about all manner of topics has exploded, so too has the number of lawsuits unhappy targets have filed about such commentary. Saleh’s suit falls under what lawyers call a practice of Strategic Law Against Public Participation or SLAPP. SLAPP cases take aim at people making statements or
    publishing information that could be damaging to the plaintiff. Critics say these suits are sometimes little more than attempt to censor, silence and in intimidate the defendant.

    In a similar case, a Washington County pastor sued a former parishioner in June, claiming an online review of his church was defamatory. The defendant’s attorney, Linda Williams—who is also representing Bailey, the dental patient—employed an Oregon anti-SLAPP statute passed in 2001 aimed at frivolous SLAPP lawsuits. The judge ruled in favor of the Washington County defendant and said that the statements were made “in a public forum and concern an issue of public interest,” according to KATU.

    Earlier this month Bailey’s attornies filed a motion to strike Saleh’s lawsuit under the anti-SLAPP statute, declaring that Bailey’s online reviews are free speech in a public forum. “Spencer’s review was a protected opinion and the Plaintiff cannot prove their allegations,” Ross, Bailey’s co-counsel tells WW via email. “Nor can they prove $300,000 in damages for a post that was up for three weeks.”

    A judge will hear the anti-SLAPP motion on Sept. 5.

    http://www.wweek.com/portland/blog-29111-portland_dentist_sues_patient_over_internet_posts.html

  • Voglbauer V Llewellyn

    By Associated Press, 22 May 2014

    WHITEWATER, Wis. (AP) — A University of Wisconsin-Whitewater professor is suing a former graduate student who posted online comments and videos that the teacher considers defamatory.

    Anthony Llewellyn took a class last year from communications professor Sally Vogl-Bauer, but the experience didn’t go well, the Janesville Gazette reported (http://bit.ly/1hcjNmn ) Thursday.

    Llewellyn posted comments on professor-rating sites accusing the teacher of criticizing his academic abilities, grading him unfairly and causing him to fail out of school. He said he spoke with her in
    April about his concerns, two months before he was told he had failed her class.

    Vogl-Bauer contends the comments amount to defamation, while Llewellyn says his goal was simply to inform the public about how the professor treated him.

    Tim Edwards, the attorney representing Vogl-Bauer, said the comments could be especially damaging to someone in a small professional community. He said he and Vogl-Bauer agree that students should be
    allowed to express their opinions, “but when you go so far beyond that, into a concerted effort to attack somebody’s reputation because things didn’t go your way, that’s much different.”

    Edwards and Vogl-Bauer asked Llewellyn to take down his online comments and videos. They filed the lawsuit after he refused.

    Llewellyn said it’s important for the videos and comments to stay online so the public can remain informed.

    “I don’t feel I’ve (gone) too far with my videos and comments because everything posted basically communicates exactly how Sally Vogl-Bauer treated me,” Llewellyn said.

    The lawsuit seeks punitive damages and attorney and trial fees. The case is scheduled to go a jury trial in September.

    It’s not clear how successful the lawsuit will be, but a similar case in Minnesota ended with a ruling in favor of the person who posted the online rating. In the case (*), a doctor took offense when a patient’s son went on a rate-your-doctor website and called him “a real tool,” slang for stupid or foolish. The Minnesota Supreme Court ruled in January 2013 that the comment wasn’t defamatory because it was an opinion
    protected by free-speech rights.

    (*) David McKee MD vs Dennis Laurion
    Minnesota Supreme Court Case # A11-1154