First Amendment or Legal Case?

Screen Shot 2014-07-21 at 11.03.42 AMFirst Amendment or Legal Case?

If you could sue over a bad review, would you?

Some businesses have been successfully doing just that. A recent judgement in France has US bloggers on alert. Restaurants have had random success suing professional food critics for libel in the past, what makes this one different is that the amateur blogger, Ms. Caroline Doudet, has only 3,000 followers, compared to a newspaper or magazine food critic with over 100k readers.

Personal blogs and review sites such as Yelp have changed the complaint game. Criticisms amongst friends are now online, viewable by anyone who does a search. Does the “potential” threat of lost business turn a negative review into reprehensible slander? We have all seen reviews that are clearly off base and rude, but even those, are they lawsuit material?

Earlier this year, Virginia contractor Dietz Development LLC  won a judgement of slander against a homeowner who wrote a scathing Yelp review in 2011. The homeowner, Jane Perez, complained of “shoddy” work, damages to her home, and that Dietz didn’t have a license. She also accused the crew of stealing her jewelry. Dietz claimed defamation, sued, and won. However, the courts denied his damages claim of approximately $750,000, finding him guilty of posting defamatory responses.

What if the reviews don’t claim illegal behavior? The First Amendment grants consumers free speech rights to complain about bad service, doesn’t it?

In January, The Virginia Court of Appeals said no, ruling against seven customers of a carpet cleaning service in Alexandria. Unhappy, they complained on Yelp, but the business owner, Joe Hadeed, claimed the reviews were false because the reviewers’ profile names didn’t match customers in his database.

The judge, William G. Petty, agreed that free speech wasn’t relevant, stating “the review is not an opinion, instead, the review is based on a false statement.”.

Yelp is now required to turn over user information associated with such cases. They responded that the judgement, an attempt “to silence online critics”, failed “to adequately protect free speech rights on the Internet”.

If a service is truly flawed, should a guest have the right to say so? The courts might be saying no. French blogger Ms. Doudet didn’t hide her identity or claim theft. She stated service was inattentive, something the manager himself recognizes was a possibility.

He agreed that, ”Maybe there were some errors in the service, that happens sometimes in the middle of August – I recognise that.”

Speaking to Arret Sur Images, the manager stated, “People can criticise, but there is a way of doing it – with respect. That was not the case here.”

The 6 month old review, entitled “the place to avoid in Cap-Ferret: Il Giardino” , was claimed to cause “great harm” because it appeared 4th in Google search.

The manager stated that because it was in Google, it “did my business more and more harm, even though we have worked seven days a week for 15 years. I could not accept that.”

Are hurt feelings enough of a reason for a lawsuit?

French law allows a judge to make a judgement of slander if a casual relationship tying the potential for harm to the defendant’s review is identified, regardless of review’s facts. Therefore Il Giardino did not need to prove loss of business, or dispute claims, only the potential to harm. The judge found the post title to be defamatory, ordering it changed to reduce prominence in Google, and fining Ms. Doudet approximately $3,400 US dollars. Ms. Doudet deleted the post.

Is the publicity surrounding a case worse than the original review? In trying to silence one bad review, it gets republished in all press about the case, gaining more readers, rather than less. Even if a business wins, the lawsuit might make guests question the validity of the review. Why not just ignore it? It’s  ONLY one review, right?

What about false reviews by a vindictive former employee, competitor, or ex? It happens, but not often. Is the best response to sift for truth, improve staff training if needed, but otherwise ignore the bad reviews?

The problem with these lawsuits is said best by Ms. Doudet,  ”If bloggers do not have the freedom to write negative reviews, positive reviews make no sense either.”