Thursday, March 26, 2015

Another lawsuit against a consumer for a "bad" review, against a dog training business in northern Virginia, stirs debate on anti-SLAPP in more states; also, reviews are safer if they stick to "opinions"

There’s another defamation lawsuit (for $65,000) against a customer for a negative review in northern Virginia. This time, the business is Dog Tranquility, in Burke, VA and the consumer is Jennifer Ujimori, as reported in the Washington Post by Justin Jouvenal in the Metro Section, first page on Thursday March 26, 2015, link here.  Jouvenal links to an earlier Post story on December 4, 2012 about another earlier suit in Fairfax against a home remodeling contractor, “In Yelp suit, free speech on Web vs. reputations”. Indeed!
The reviews had been posted on Yelp and Angie’s List.  The Yelp review was removed by the company, so far.  The business claims it had tried to work with the consumer. 
The consumer says that businesses are playing hardball by forcing consumers to spend money on legal fees to defend possibly frivolous suits.  The businesses say that one bad review can deep-six them, and the owners have to make a living to provide for their families in the real world.  In the US, “truth” I an absolute defense to libel (no so in Britain, according to Kitty Kelly).  Still, it can cost money for a defendant to show “truth” to a jury (by a 51% preponderance).  Some regard the suits as a form of legal bullying as a “real world” tactic. 
In the video above, reporter Jouvenal says attorneys tell him that they should stick to “opinions, not facts”, because there is an “Opinion Rule” that says that opinions alone cannot be defamatory. But when reviewers state “facts” they may have to prove the facts in court at their own expense.  Think about this.  When I have a fender-bender, I don’t report the “facts” about an accident online. 
In this specific case, the news story reports the business owner saying that, as a small business owner, the business has to “rely on these review sites as a major source of advertising.”  To me, that sort of argument doesn’t sound like it can work;  review sites are a kind of “journalism”; they are not “supposed to be advertising”. Except when they are!.  But, true, some of the material I get from Angie’s strikes me as “advertising”, personally at least. 
In another case, Hadeed Carpet Cleaners, the Virginia Supreme Court will decide soon whether Yelp must release the identities of anonymous “critics.” Electronic Frontier Foundation, among others, has been a strong proponent of defending anonymous critical speech on the Web.  (This was reported here Jan. 9, 2014.)
The consumer wants to encourage Virginia to pass an “anti-SLAPP” law, similar to what exists in DC, Maryland, California, and over half of states.  SLAPP stands for “Strategic Lawsuit Against Public Participation”.  Such a law allows a judge to dismiss a frivolous suits on First Amendment grounds.

There are other accounts already on the case.  The American Bar Association has a summary (with some of the reported fact pattern) here. The "Inquisitr" has a valuable article on the underlying debate and how it could affect the "consumer review site" industry here.  
I do belong to Angie’s List and get its magazine by mail (their article on water heaters and new EPA standards sounded important, for example), and I get contacted by email to write reviews all the time!  I don’t do reviews on these sites. News media has reported on Angie as aggressively promoting her business model.  Wikipedia characterizes it as “subscription supported” with “crowd-sourced” review content.
 I do have a few small disputes in the past, a couple outstanding, but not of an existential nature.  One of these concerned an unqualified assumption sale of real estate in Texas in the early 90s. and another involved my tangential involvement with a dubious discrimination claim by another employee back in the 1990s.  Had that case gone to trial, my first book might have been delayed, as well as my 1997 relocation!  Generally, I don’t settle individual disagreements online, as, yes, that’s dangerous.  On the other hand, “journalistic integrity” would seem to demand full disclosure eventually.  I may eventually give more details on some of these on my “Do Ask Do Tell Notes” Wordpress blog.
Art work: from St. Mary's City. MD (my trip).

Update: March 27, 2015

The NBC Today show covered this incident briefly, and conducts a survey that reports that 87% of respondents report that review sites affect their purchasing decisions.  I replied "No", although I sometimes look at hotel reviews (does the WiFi work?) and movie and theater reviews.  Frivolously, an actor said he wondered if Hollywood would sue critics.
The UK Daily Mail has a story by Evan Bleier, and the comments are interesting.  The story also has screenshot illustrations of the review process.  One comment suggested the defendant use "GoFundMe".  That strikes me as a bit tacky, but the defendant probably does get a lot of "free publicity", which maybe she didn't want.  The business owner is likely to get resentment from the public for merely filing the suit, which may hurt business more than the review itself.

Update: March 29

Rick Callahan, on p. A3 of the Sunday Washington Post, in discussing protests against Indiana's new "religious freedom" law. notes that Angie's List has considered adding (or moving) 1000 jobs in Indiana (link here).  Wikipedia says it has over 1600 employees now. I had no idea that a review site company could need so many employees and was this big! In fact the Indianapolis Star reports more detail about possible cancellation by Angie's here.  The company had planned to rehab a run-down area of the city (in which I worked for the summer in 1970). 

Update: April 1

There has been a sequence where people posted negative reviews of an Indiana pizza place over its position on gay marriage, with the reviewers never visiting the place, on Yelp, story by Robby Stoave on the Hit-Run Blog on Reason. 

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