(The author is a Reuters contributor. The opinions expressed
are his own.)
By Mitch Lipka
Jan 2 If you are mad as hell about a consumer
experience you've had, you may want to exercise your right of
free speech to express your dismay in a public forum - these
days, by posting a negative review on a site like Yelp or
But a lawsuit in Virginia may make you think twice about how
exactly to word your gripe to avoid provoking a defamation
lawsuit that could cost you, whether you end up guilty of
defamation or not. At a time when consumers routinely rely on
what other consumers have to say about products and services,
the case has bearing on the boundaries of online behavior.
The Virginia dispute started when homeowner Jane Perez
posted negative comments about Washington, D.C.-area contractor
Christopher Dietz to Yelp and Angie's List in the fall
of 2012. Perez's comments accused the contractor of stealing her
jewelry and charging her for work that was never done, according
to a lawsuit filed by Dietz accusing Perez of defamation.
In early December, the judge in the case, Thomas Fortkort,
ruled that portions of the reviews had to be removed from the
That prompted the intervention of lawyers from advocacy
groups Public Citizen and the American Civil Liberties Union,
who filed an appeal last week that asserted the judge's decision
amounted to prior restraint - action that prohibits speech
before it takes place and is generally regarded as a violation
of First Amendment freedom of speech rights.
The Virginia Supreme Court, in a decision made public
Wednesday, overturned Judge Fortkort's injunction, saying it was
The defamation case now goes back to Fortkort, who can set a
trial in the case. A veteran litigator has agreed to represent
Perez for free; she has had to spend her own money to this
point, something that made her consider giving up the fight,
according to Public Citizen.
"The decision confirms the importance of not shutting down
public discussion on the Internet just because someone doesn't
like what's being talked about," says Paul Alan Levy, an
attorney for Public Citizen.
HOW TO PRACTICE SAFE CRITICISM
When consumers do let fly and provoke a reaction, more often
than not they face just the threat of litigation, intended to
get them to voluntarily withdraw the reviews, says Eric Goldman,
director of the High Tech Law Institute at Santa Clara
University Law School in California. Actual litigation is rare.
"Businesses that choose to sue their customers to silence
them rather than address their comments rarely prevail and often
bring additional unwanted attention to the original criticism,"
says Yelp public relations manager Kristen Whisenand.
Nevertheless, with consumers writing millions of reviews
without lawyers poring over them (Yelp.com alone has more than
30 million user reviews posted to its site), some are taking
risks - even big ones, says Goldman. "Most people don't know the
legal nuances of how to write negative reviews without making
defamatory statements," he says. "Every time people post
negative online reviews, they are betting their houses - in the
sense that the criticized business can sue them and try to take
Under the law, defamation involves making a false statement
that harms someone's reputation. Other factors may come into
play, including fault or negligence by the person making the
statement. When a statement concerns a public figure there are
still more factors.
While Goldman favors a federal law to protect consumer
opinions, he suggests staying focused on facts and personal
experience to avoid potentially problematic commentary that
could end up being called defamatory.
If you're writing about your experience with the plumber,
for example, explain what happened: You called because the pipes
were clogged or the toilet overflowed. Detail what your
experience was like. If you were gratified the plumber took your
call right away, say so. If you were frustrated because it took
hours to get a call back, say that.
Focus on facts like how long the plumber was there and
whether the job was completed, or that it cost $500 for a
five-minute visit that only involved the use of a plunger. Mad
that he was on your dime while taking an extended lunch? Say
what you saw without embellishment, Goldman says. Calling him a
crook could have consequences.
Most of all, offer information that can benefit others.
"Your goal shouldn't be to punish the vendor; it should be to
help your peers make better marketplace choices," says Goldman.
(Follow us @ReutersMoney or here.
Editing by Beth Pinsker Gladstone, Leslie Adler, and Prudence