Can I Sue an Individual for Posting a Bad Yelp Review About My Business?
A Manhattan woman who gave a Kips Bay gynecologist a one-star review on Yelp1 has spent over $20,000 defending herself in court—and the litigation has barely even started. In July 2017, Michelle Levine went to see Dr. Joon Song for a check-up. “A week later, he billed [her] insurance company $1,304.32 for the new-patient visit and ultrasound, and [she] got a bill for $427 that wasn’t covered.”2
In her Yelp review, she wrote: “[v]ery poor and crooked business practice. I suspect that this doctor gives unnecessary procedure [sic] to a lot of people and then charges the insurance sky high prices and no one knows the difference.” She also stated, “[e]verything about my one and only visit here has caused me emotional distress and panic, and now they want me to cough up an extra $500 for services I didn’t even need?” In response to her review two weeks later, Dr. Joon’s lawyers sent Ms. Levine a letter informing her that she was being sued for about $1 million.
Think about it, how many times do you look at online reviews when deciding which restaurant to eat at, what hotel to visit, etc. Positive reviews will reward business owners for doing well, while negative reviews will alert business owners of some of their areas that need improvement. Online reviews are here to stay and are part of conducting business.
However, substantial litigation has surfaced in recent years and more and more business owners are taking action against the negative reviewers by suing them for defamation. Business owners have a right to protect their reputation from the publishing of untrue and harmful words, but on the other hand customers have a First Amendment right to free speech under the Constitution. So, where do we draw the line? When does a negative review amount to defamation? Most importantly, what does this mean for business owners and consumers in Arizona?
While this article will not prepare you with the legal tools to fight a lawsuit on your own, it will give you some necessary basics to assess your unique situation, understand your potential liability as a Yelp reviewer, and know your rights as an Arizona business owner. There is a rapidly increasing number of defamation cases arising from online reviews and an even more rapidly increasing reliance on them by consumers. These reviews are critical to the success of your business. While there are generally no special rules that apply to online reviews in Arizona, the courts will apply traditional defamation rules to the modern platform. We will discuss and elaborate on several of those rules in this article. If you have been served with a lawsuit for posting a bad review or are thinking about filing a lawsuit against someone who has slandered you, please contact our office today.
What is defamation?
Defamation can generally be divided into two different categories: libel and slander. Libel arises from the written publication of defamatory statements (e.g. emails, letters, published articles) and slander occurs as a result of spoken words (e.g. public statements, workplace gossip, or accusations of misconduct). Liability for defamation can extend to an enormously vast set of communications, such as a conversation with a peer in the breakroom, a public speech, a newspaper article, or even a Yelp review.
Understanding and recognizing the differences between slander and libel are imperative for defamation victims as it could make all the difference between bringing a valid defamation claim and being prevented from bringing such claims altogether. Most of the time, the statute of limitations for bringing a slander claim is shorter than the statute of limitations for libel. Additionally, both slander and libel claims will have different filing and procedural requirements. For a more detailed discussion of what constitutes libel and slander, contact an experienced attorney today.
What are the Elements Required Under Arizona Law to Prove Defamation?
Defamation is generally governed by state law. In Arizona, a plaintiff must demonstrate that the following elements are met in order to successfully argue his case for defamation:3
- A false statement was made by the defendant concerning the plaintiff;
- The statement was defamatory;4
- The statement was published5 to a third party;
- The requisite fault was on the part of the defendant; and
- The plaintiff was damaged as a result of the statement.6
In addition to the above factors, Arizona courts frequently look to the Second Restatement of Torts in analyzing defamation claims, viewing it as a persuasive authority.7
Opinion is Generally Not Defamation
As a business owner evaluating your potential claim against a Yelp reviewer, ask yourself: was the statement the customer made true or false? If a customer posts on Yelp that “there was a human finger in my chili!!!”—this is not an opinion, but a “factual” statement that could amount to defamation if untrue. Such a statement could lead to a substantial loss of business income. However, if a customer posts “I think the chili tastes awful,” then the owner will have a very difficult time establishing defamation because the statement was merely an opinion and not an assertion of fact.
Defamation Per Se
Like many other states, Arizona recognizes the legal theory of defamation per se. Defamation per se, also referred to as slander or libel per se, is a legal principle acknowledging that when certain statements are so inflammatory and damaging, the plaintiff will not need to prove that he or she has been damaged by the defamatory statements. So which statements trigger an analysis under defamation per se in Arizona?
- Any publication which impeaches honesty, integrity, or reputation of a person;
- Any written statement which, on its face, tends to “bring any person into disrepute, contempt, or ridicule;”8
- Any statement which injures a person in his or her profession, trade, or business;
- Any statement which imputes the commission of a crime involving moral turpitude;9 or
- Any statement that charges an infectious sexually transmitted disease, or alleges that a woman is unchaste.
So why is defamation per se an important concept for Yelp reviews? Well, if a Yelp reviewer makes a defamatory statement on Yelp, there is also a considerable chance that the review is related to that owner’s profession, trade, or business. If this is the case, then the owner may not have to prove that he was injured by the defamatory statements and may not be required to prove special damages. Generally, this means that the owner can merely allege non-pecuniary damages—such as damage to his reputation—and still prove his prima facie case for defamation.
Defamation Per Quod
Arizona also recognizes defamation per se’s arch nemesis, defamation per quod. Statements can be considered per quod when they do not “fall within the definition of defamation” on their face, “but which by reason of special extraneous circumstances actually do.”10 Under defamation per quod theory, an Arizona plaintiff must allege special damages—such as actual pecuniary loss.11 So if a defamatory statement is made by innuendo, for example, a plaintiff will have the burden of proving, through extrinsic evidence, that the innuendo was defamatory. Let’s say a scientist writes a research paper that exposes a new popular drug as a fake. If the pharmacologist who invented the drug sues the scientist for defamation because the scientist’s conclusion is drawn from data which he knows to be false, then they might have a strong case. However, since a lay person would neither know how to interpret the report’s findings nor its ramifications without being a scientist, extrinsic evidence would be necessary to make an evaluation as to whether there actually was defamation.
Public vs. Private Figures
When analyzing defamation claims, courts will usually consider both the status of the plaintiff in society (whether the plaintiff is a public figure or a private figure) and whether the statement relates to either a public or private issue. When an individual voluntarily and purposefully avails themselves to the public light, comment, and scrutiny, such individuals are generally considered public figures. Examples of public figures can include movie stars, musicians, politicians, individuals with large social media following, etc. In order for a public figure to succeed as the plaintiff of a defamation lawsuit, they must be able to prove a heightened standard of scrutiny—that the defendant acted with actual malice or reckless disregard. On the other hand, if the plaintiff is a private figure, merely proving that the defendant made the false assertion with ordinary negligence is usually sufficient to prove defamation.
The courts will also take into consideration the actual public or private nature of the defamatory statement itself. For example, if a defamatory statement is made about Gordon Ramsay’s cooking, then he has undoubtedly availed himself in a place in society to be a public figure on the subject. However, if a defamatory statement is made about his family, then a court may likely determine that such a statement should not be analyzed under the heightened scrutiny of malice or reckless disregard because he has not become a public figure for such purpose. On the other hand, if a defamatory statement is made about Kim Kardashian’s family, it will likely still fall under the heightened standard because her entire family has stepped out into the public light for virtually all purposes.
Determining which level of scrutiny the court will apply to analyze your claim can be quite complex. However, with an experienced attorney, you will be able to navigate through such determinations with confidence. For help in assessing your claim, please call our office today.
Yelp Reviews and the Inevitable Problem of the Anonymous User
Another problem courts and plaintiffs are dealing with is the challenge of discovering the identity of anonymous users on Yelp. In the case Moblisa v. Doe,12 the Court found it necessary on summary judgment to compel the discovery of an anonymous defendant after the plaintiff made a sufficient showing to justify revealing the anonymous online reviewer. In Arizona, to reveal an anonymous user a plaintiff must first put forward sufficient evidence to support their defamation claim, then they must put forward enough evidence to show that the strength of the plaintiff’s argument and the need for disclosure outweigh the anonymous reviewer’s First Amendment right to free speech.13
Why Can’t I Just Sue Yelp?
In 1996, Congress passed Section 230 of the Communications Decency Act, which holds that Internet service providers and online platforms, like Yelp, cannot be held liable for these kinds of acts. This immunity generally covers all defamation and privacy claims, as well as negligence and other tort claims connected to a statement’s publication. As long as the defamatory statements or false reviews are published by third-party users, Yelp will be immune from liability. While cases have repeatedly tried to circumvent Section 230, courts, including Arizona courts, have repeatedly reaffirmed its protection.
Arizona Privileges and Defenses
Along with Section 230, courts in Arizona have recognized several other privileges and defenses for defamation actions, which include substantial truth, the fair report privilege, retraction or correction, and the opinion and fair comment privilege.
Remember: “truth” is an absolute defense against defamation.14 In order to prove defamation, a plaintiff must show convincing evidence of a statement’s falsity in order to have a chance at proving defamation. If truth is on your side, then you are generally in a good position. Additionally, this defense is referred to as substantial truth because under the doctrine, marginal blunders and inaccuracies by a plaintiff will be ignored as long as they do not materially or substantially affect the center claim being made.
Historically, only one case in Arizona has applied the fair report privilege.15 As a result, its effectiveness is not entirely certain. In the Arizona Court of Appeals case, Sallomi v. Phoenix Newspapers, Inc., it was found that the fair report privilege applied to statements published by the Arizona Republic because they were considered a “fair and accurate abridgement of the public records used.” In its statements, it described a local restaurant as a “hangout for narcotics dealers and users.” The restaurant sued, but was unsuccessful, because the statements made by the Arizona Republic were based on police interviews, affidavits, a grand-jury-indictments, and a booking slip. Even though the Arizona Republic relied primarily on the police interviews, which were by no means public, the comments were still supported by readily available public information so the court applied the fair report privilege.
Opinion and Fair Comment Privilege
Opinion and fair comment privilege is described as a “common law defense [that] guarantees the freedom of the press to express statements on matters of public interest, as long as the statements are not made with ill will, spite, or with the intent to harm the plaintiff.” This privilege protects non-media defendants the same way as media defendants when the plaintiff is a public official. In Arizona, the opinion and fair comment privilege is generally “limited to discussions of matters which are of legitimate concern to the community as a whole because they materially affect the interests of all the community.”16 However, a showing of actual malice will defeat the opinion and fair comment privilege.
Defamation through social media and other digital platforms can be compared to the devastating effects of a wildfire—the longer you passively watch it happen, the more it is going to spread and damage your profession and your personal life. If you are being defamed in any way, contact an experienced attorney today.
Denton Peterson in Mesa, Phoenix, and Scottsdale has represented clients in the Phoenix valley for libelous, slanderous and defamatory statements. While not every false statement constitutes actionable defamation, those that do can be very harmful. Contact us today to discuss your case.
1 Ms. Levine wrote reviews on several other sites as well.
2 See https://nypost.com/2018/05/28/i-wrote-a-negative-yelp-review-and-it-made-my-life-a-nightmare/.
3 See Morris v. Warner, 160 Ariz. 55, 62 (Ariz. Ct. App. 1988).
4 In order to be “defamatory,” a statement generally must be false and bring the defamed person into disrepute, contempt, or ridicule, or impeach her honesty, integrity, virtue, or reputation. See Godbehere v. Phoenix Newspapers, Inc., 162 Ariz. 335, 341 (Ariz. 1989).
5 Published merely means communicating the statement at issue to a third person other than the plaintiff.
6 Morris v. Warner, 160 Ariz. 55, 62 (Ariz. Ct. App. 1988).
7 Sanchez v. Coxon, 175 Ariz. 93, 95 (1993).
8 See Ilitzky v. Goodman, 57 Ariz. 216, 220-21 (Ariz. 1941).
9 See Modla v. Parker, 17 Ariz. App. 54 (1972).
10 See Goodman at 221 (Ariz. 1941); see also Boswell v. Phoenix Newspaper, 152 Ariz. 9 (1986).
11 Boswell at 6.
12 See Moblisa v. Doe, 170 P.3d 712 (Ariz. Ct. App 2007).
13 See also Dendrite Int’l v. Doe, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001).
14 See Time Inc. v. Hill, 385 U.S. 411 (1967).
15 Also known as the “public records privilege.”
16 See Phoenix Newspapers, Inc. v. Church, 103 Ariz. 582, 595 (Ariz. 1968).