Jim Hunt Provides Commentary for MainStreet.com Article.
on March 11, 2014
Below is the text version of the article. The full article can be found here.
NEW YORK (MainStreet) — The trickle of lawsuits that have been filed by restaurants and hotels over negative reviews posted to sites such as Yelp and TripAdvisor is about to become a torrent. That’s the opinion of many experts who say this now is inevitable.
“Businesses that generate income from Yelp and TripAdvisor will be more and more aggressive about how they protect themselves,” said James T. Hunt, an attorney with Slater, Tenaglia, Fritz & Hunt in New York.
“The rapid growth of online reviews has certainly led to an increase in lawsuits against reviewers,” said Josh King, general counsel for legal marketplace Avvo.com, which features reviews of attorneys by clients.
Bad reviews can translate into lost revenues and that has become a prod for businesses to file suit to silence critics.
They rarely will sue the sites such as Yelp and TripAdvisor, which have significant legal protections because they are not expressing opinion. What they do is provide a venue for others to express and a body of federal law says that is protected activity.
That means the angry businesses will point their gun barrels at you, the posters.
There isn’t any hiding under a pen name, either. Most review sites – possibly all — will reveal what information they have on a poster if presented with a court order. That information generally amounts to an IP address, rarely much more, but with that and a little investigative luck, sometimes the identity of the user can be determined. And a lawsuit gets filed.
Don’t you have “free speech?” Succinctly put: free speech exists in online forums but targets of that speech – hotels and restaurants are cases in point – have a right to defend themselves when subjected to defamation, which are statements that are damaging to the person or business’s good reputation.
Many lawyers have traditionally shied away from defamation suits because they are not easy to win – but more of them are getting filed because, frankly, more defamation is happening.
So, exactly when do reviews trigger lawsuits?
In perhaps the most celebrated lawsuit of its kind, early this year a Fairfax, Va. jury reached a verdict in the case of contractor Christopher Dietz vs. homeowner Jane Perez. Perez had posted a Yelp review wherein she said that Dietz had botched a home improvement job and jewelry had been stolen during the work.
Dietz yelled foul, and filed suit. When the jury ruled, it said, indeed, Perez had defamed Dietz – but it added that Dietz, in various postings, had defamed her. He had sued for $750,000. The jury decided nobody was owed damages.
In Quebec City, Canada Laurent Azoulay stayed at the Hotel Quebec where, he alleged in a TripAdvisor review, he was bitten by bed bugs. The hotel responded with a suit for $95,000. That case is in Quebec’s Superior Court.
Either way, win or lose, it will be expensive for Azoulay, because legal defense does not come cheap.
How can posters defend themselves against suits?
“Expressions of opinion usually are protected,” said Bryan Sullivan, an attorney with law firm Early Sullivan in Los Angeles.
In general, it is fair to say: “In my opinion, the soup tasted canned” or “In my opinion, the hotel bathroom did not smell or look clean.”
Trouble lurks in statements of fact, because they can be disputed. Say: “The restaurant serves canned soup” and if there is not a can opener in the joint, you are in trouble.
Ditto for: “I was bitten by bedbugs.”
What if you were bitten? Said attorney Columbus, Ohio attorney Shane McClelland: “Truth is always a defense.”
The trouble comes in proving it is true, that in fact those red marks are bed bug bites that you did not have before entering the hotel.
Proof can be elusive.
That is why, when posting the truly negative, even better than truth is when “five or ten other posters share similar feelings,” said Hunt. Numbers bring safety, certainly in online forums.
Yes, but you swear there were cockroaches parading across the table in that Middle Eastern eatery on the Upper Eastside? I feel your pain, I have seen them, too, but until I snap a photo of them with my Android, my lips are sealed about the establishment’s identity – and that is the advice for you before rushing to vent on Yelp or TripAdvisor about matters of fact.
Post. Vent. But stick with opinions. And emotions (“I hate the pizza here, wouldn’t feed it to my chinchilla”). Don’t veer into facts, because that is where the risks escalate.
That’s the formula for safe posting, and probably very soon we all will need to follow that advice as lawsuits multiply.
–Written by Robert McGarvey for MainStreet