Does Angie's List Have a Section for Lawyers? Online Review Leads to Libel Suit

From the Cincinnati Enquirer, a case that highlights the perils of speaking your mind online:

Erinn Richard was so upset about the care her 3-year-old received at a Blue Ash day care that she wrote a fairly harsh review on Google reviews.

The day-care operators saw it - and sued her for defamation.

"Everything I posted, happened," said Richard, 30, of Fairfield.

She enrolled her son in the Blue Ash Educational Building, a day care in the 10000 block of Kenwood Road "for about eight months" in 2009 before leaving because of what she said was inadequate care.

After that, she was online and posted a review….

Richard had no idea she'd been sued by the day care until a reporter called to ask about it for this story.

"I would not recommend anyone's pet to attend this school," the lawsuit accuses Richard of writing in her review.

Bonus points: The review was posted on the school's own site, which solicited comments from parents. Given relatively loose laws governing online intermediaries, the school can at least breathe a sigh of relief that it doesn't need to sue itself for publishing the statement on its site. More:

Another post on that online review site identifies herself as "Mary Lynne" and as the school's assistant director. She calls the negative posts by Richard and another couple as untrue.

That post notes, "I will not allow untrue anonymous postings to damage our reputation and our business. Yes, the school's attorneys always pursue the ill-advised malicious internet posters!"

Neither [Mary Lynne] Schulok nor the school's attorney returned repeated calls.

The school has two other defamation lawsuits pending involving similar allegations.

A lawyer interviewed for the story says that such court cases will turn on findings of fact.

Whole thing here.

For those of you itching to slag folks online (not you, gentle Hit & Run readers), The Electronic Frontier Foundation has a handy online primer of what to avoid.

Comments

[Steven Smith, Therapist]

I find the internet to be a wonderful source of clients and business advice.

[Art-P.O.G.]

^^^^^^
I see what you did there.

[Eduard van Haalen]

"The school has two other defamation lawsuits pending involving similar allegations."

Does this mean that three parents independently decided to defame this excellent business? Or was it a conspiracy?

[Chupacabra]

I blame the Kochtopus.

[Ben P.]

Big Daycare is just another tool of the Kochtopus, yes.

[Pro Libertate]

Sue first and ask questions later.

[Tim]

So this school will be suing Reason next?

[Warty]

What about that one guy who likes to fuck sh*CARRIER LOST*

[GILMORE]

The review was posted on the school's own site, which solicited comments from parents.

um.

I'm no lawyer... but can you really claim 'defamation' over solicited comments?

via the EFF:

The elements that must be proved to establish defamation are:

a publication to one other than the person defamed;
a false statement of fact;
that is understood as
a. being of and concerning the plaintiff; and
b. tending to harm the reputation of plaintiff.
If the plaintiff is a public figure, he or she must also prove actual malice.

'one other than the person' is sort of what i mean. If it was their own commentary board, then they were themselves making comments 'to themselves' publically available (as opposed to a 'submit suggestions!' that no one else gets to see sort of thing...)

I'm a little confused as to whether the issue was over Google Reviews or their own website. I suppose it makes a difference.

"Her post implies that parents are not permitted to visit their kids during the day. She also implies that the center does not set up opportunities for parents to meet teachers, and does not inform parents about their kids' behavior. Those are all fact-based comments that probably would support a libel claim."

Implies, schmlies... wouldn't they have to disprove it didn't happen *to her* first? @#$(*!# lawyers.

[ffrr]

"'one other than the person' is sort of what i mean."

That wont work. The forum, even though it solicited comments and was set up by the day care, was public. It's the same as if someone at your party gave a toast and said something defamatory about you and it ruined your reputation with all your friends and neighbors.

That said, there may be a case to be made that when you yourself create the public forum that (i) there is a certain assumption of risk involved that negates your ability to sue or (ii) if not that, then it might be possible to argue that, since you are the subject of the forum, and the forum is "public" that you become a "public figure" and malice must be proved.

[GILMORE]

The forum, even though it solicited comments and was set up by the day care, was public

Again - i'm no lawyer - but "public" does not mean, "a forum set up and controlled by the individual in question"...

It's the same as if someone at your party gave a toast

Right; and a 'party' would be something I *invited* people to, and would be ultimately responsible if the invitees happen to be complete tools... So my drunk cousin told the story about how we set the neighbors cat on fire, or how i got my best friend's sister pregnant? You know what, maybe I *shouldn't have invited the asshole* now that i think about it.

Same goes for their "solicitation" of commentary: if they had a "you can only say nice things about us" policy, perhaps they should have moderated it? I know the article also says it was on "Google Reviews"... in which case I think you might be right - but not if they themselves hosted commentary...

I think you get the idea after your, 'that said'...

Anyone ever do that youth-group-type experiment thing, where people all tape a big white cardboard sheet to their backs, and everyone walks around the room and writes *exactly* what they think of the other person? The idea being that its just as hard to say nice things as it is to be critical, and the exercise allows people to express themselves more fully. Once you get past the "DOUCHE FACE!! U SMELL"-type stuff, it can actually be kind of rewarding. (also often leads to teenage hook ups)

I'm just saying, the dumb Day-Care fuckers shouldn't have had a comments section in the first place.

[ffrr]

You are misunderstanding the meaning of "publication" and "public" - public in this instance doesn't mean as opposed to private (for e.g., a private place rather than a public one). Public and publication means making the statement to third parties (in other words, libel is not a remedy for someone hurting your feelings by saying something mean to you, it is a remedy for damaging your reputation by saying something false to someone else)

I am a lawyer (although I don't specialize in this area).

Also, see my comment as to how the defendant could still easily win (because if the day care is a public figure they must prove that the false statement was made with malice - very difficult to impossible). I agree with you that the day care are scumbags - but that doesn't change what a court would likely rule

[ffrr]

And in this instance, the reason why the day care would be a "public figure" is because it was the subject of the forum (which was a "public" place - even though privately owned, operated and set up).

[Tulpa]

I have a hard time believing that a business that advertises its services publicly isn't a "public figure" for the purposes of defamation. Whether they have a forum or not.

[R C Dean]

In classic fashion, the school has succeeded in drawing national attention to its unhappy customers.

Well played, Blue Ash!

[Mo]

Is Barbara Streisand an investor in this school?

[WuckNee]

Well that does indeed make a LOT of sense when you think about it.

http://www.anon-stuff.us.tc

[Colonel_Angus]

Blue Ash molestered me.

[Warty]

Take note, ladies.

Long-distance cardio does terrible things to bodies, especially women's. Compare marathoners to, say, 100m sprinters.

[Warty]

Oops, that was supposed to be a reply to somebody on the morning links. It's ok, though. The picture is nice enough to stand on its own.

[Not Rather]

PWND!

[Apogee]

The picture is nice enough to stand on its own.

Yes. Yes it is.

[PS]

Xfit is definitely better than chronic cardio, but I don't like the overly muscled core. HIT training that maintains WHR for the win.

[Dave]

So... the First Amendment is essentially meaningless.

Can we pleeeaasee have legal reform???

How about "loser pays" to start?

[MNG]

Iirc defamation was one of those areas like intellectual property where there is some disagreement among libertarians.

[R C Dean]

Free speech does not mean freedom from responsibility for the results of your speech.

If your speech wrongfully damages to someone else, then it is not an infringement on your rights to be responsible for the damage you caused.

Of course, telling the truth can never be wrongful, which is why it is an absolute defense to libel and slander.

[Abdul]

telling the truth can never be wrongful

Try telling your wife that she's put on a little weight.

[Tulpa]

Free speech does not mean freedom from responsibility for the results of your speech.

If those "consequences" involve coercion by government, then yes, freedom of speech does demand freedom from such consequences.

A defamation lawsuit means that if you fail to appear for the court date and/or fail to pay the damages the court decides on, persons with guns and badges come to your door.

[Tulpa]

s/consequences/results/

[R C Dean]

If those "consequences" involve coercion by government, then yes, freedom of speech does demand freedom from such consequences.

Ah, so laws against murder and assault are unconstitutional under the Second Amendment?

Freedom means to freedom to act, not freedom from responsibility.

I also don't see how defamation can really be seen as "damaging", unless there's a right to a good reputation.

So, if you're running, say, a kennel, and one of your competitors puts up billboards falsely saying that you sell dogs to the local Asian restaurants and your business dries up and fails, you should have no recourse?

Damage to your reputation can be the cause of other, financial, damage. That strikes me as a legitimate object of tort law.

[Tulpa]

Murder and assault aren't speech, so I'm not sure where you're getting at with the first part.

How can being deprived of something you have no right to be considered "damage"? Assuming you don't have a right to continued business.

If I open up a kennel across the street and charge half as much as you do, and that puts you out of business, you can't sue me for that, despite the fact that my actions led to the same outcome as the person putting up false accusations.

Yes, yes, I know that in the common law tradition this type of thing is viewed as a damage, but if we're talking about arguing from first principles we have to throw tradition out the window, no?

[Tulpa]

And I should add that I think defamation, perjury, threats and such shouldn't be protected by the 1st Amendment, but that's on a utilitarian basis. I don't see how natural rights devotees can justify banning such things.

[Tulpa]

Of course, in the case of the kennel, my kennel business would be a "public figure" if I'm advertising my services to the public, so I should have to prove malice, right? If the billboards were put up by my competitors that would actually be somewhat easier.

It's not like a private citizen being dragged into the public eye and criticized. The performance of a business that caters to the public is a legitimate topic for public discussion, unlike the personal failings of a private citizen.

[Tulpa]

I also don't see how defamation can really be seen as "damaging", unless there's a right to a good reputation.

[Get dick cancer MNG]

Please kill yourself.

[P Brooks]

Yes, the school's attorneys always pursue the ill-advised malicious internet posters!

Of course, this statement leads me to believe the school is inundated by complaints from dissatisfied customers.

[P Brooks]

I wonder if every "This school is awesome" comment can be verified as authentic.

[Karl Hungus]

I have a check for US$10,000 that will be presented ot the first person who can tell me how to italicize and how to insert a hyperlink here in the Comments. All I have to do is fill in the name and slap a stamp on it.

[robc]

<i>italics</i>

<a href="url">link text</a>

[robc]

Will result in:

italics

link text

[robc]

Save the check, once my brewery opens, buy 10k worth of my beer.

[Karl Hungus]

I'm not much of a drinker, so a check for $10,000 has just been sent, in your name, to the Committee to Reelect Representative Barney Frank.

Thank you for taking the time to show me that!

[robc]

As long as he continues to push for legalized online gambling....

[SugarFree]

The only online gambling Frank truly supports is chatroulette.

[Karl Hungus]

I'd never heard of that until it was parodied on 'South Park'. Every new person that came up on the boys' computer immediately took out his cock. So yeah, that would be a gamble; and yeah, that's the kind of gambling Barney Frank could really get behind.

[Apogee]

Or in front of.

[T]

He didn't ask you to drink it, Karl, just to buy it.

[robc]

Exactly. Who knows, he might have friends he can give it to.

[T]

robc, if your beer is available down here, I will buy some.

If it sucks, I tailgate. Somebody will drink it.

[Karl Hungus]

What sort of beer will you be brewing?

[robc]

Right now, according to the ever changing plan, the two regular beers (as opposed to seasonals and one offs and etc) are going to be a hefeweizen and a schwarzbier.

[T]

If you can make a decent schwarzbier, I'm definitely in. I'm ambivalent about hefes, but I loves me some Shiner Black.

[robc]

I question your ambivalence if you are judging anything based on Shiner's versions.

[Mr. FIFY]

The obvious solution is government-run daycare.

/sarcasm

[Tulpa]

Thus illustrating why it's extremely stupid for a private business to sue for defamation/libel/etc.

Now many more of its potential customers know not only that there are several extremely unhappy former customers of it, but that they don't shrink from suing customers at the drop of a hat.

[Mr. FIFY]

So... they're saying "we want you to comment", but they really mean "we only want *positive* comments; otherwise, we'll sue".