Libel lawsuit over 'It was horrible'

|The Volokh Conspiracy |

Jacob Gershman & Sara Randazzo (Wall Street Journal Law Blog) report on a new libel case:

Some time earlier this year, a Google user named "Mia Arce" posted those words ["It was horrible"] as a review of [Donald J. Tobias'] boutique legal practice in Manhattan. The three-word review accompanies a one-star rating that Google users can find just by searching Mr. Tobias's name.

The lawyer says he's never heard of a person by that name and fears the three-word review is tarnishing his professional reputation. After failing to get Google to remove the review, Mr. Tobias is now petitioning a New York judge to identify the author.

In principle, libel plaintiffs can indeed use subpoenas to try to uncover the identity of whoever libeled them, so they can then sue the right person. But most courts require a showing that there is a potentially viable libel case, and I doubt such a showing can be made here:

Mr. Volokh said he sympathizes with Mr. Tobias but said the phrase "it was horrible" falls in the camp of statements that are entirely opinion and "so devoid of fact" that they can't be viewed as libelous.

Something even slightly more concrete, like "this person cheated me," could stand a chance, Mr. Volokh told Law Blog, but "'it was horrible' … is not enough without specific allegations."

For one illustration of courts' views on such matters, see Nygard, Inc. v. Uusi-Kerttula (Cal. Ct. App. 2008):

No reasonable reader could understand the description of Timo [Uusi-Kerttula]'s work experience with plaintiffs as "'horrible'" and a "'horror'" to mean that Timo was literally struck with horror while working for the company. Instead, "'horrible'" and a "'horror'" colorfully convey Timo's subjective belief that working for the company was unpleasant. His subjective reaction does not contain "provable facts," and no reasonable reader could understand these words as statements of actual working conditions. Timo's statements that "'I was used!'" and "'I Felt Myself Used!'" also connote his subjective judgment that working for the company was unpleasant.

(I believe the California court referred to Uusi-Kerttula as "Timo" under the so-called Finnish Name Doctrine, though in principle the same doctrine could be applied to Thai, Sri Lankan and Polish.)

UPDATE: For a New York high court case that helps illustrate my legal point—that highly general condemnations can't lead to defamation liability—see Mann v. Abel (N.Y. 2008):

Distinguishing between opinion and fact has "proved a difficult task," but this Court, in furtherance of that endeavor, has set out the following factors to be considered:

"(1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to signal … readers or listeners that what is being read or heard is likely to be opinion, not fact." …

[W]hen viewed within the context of the article as a whole, a reasonable reader would conclude that the statements at issue were opinion. Although not dispositive, we note that the column was on the "opinion" page of the newspaper and accompanied by an editor's note that the article was an expression of opinion by the author. Moreover, the tenor of the column, including allegations that Mann was a "political hatchet Mann" who appeared to "pull[] the strings," clearly signals the reader that the piece is likely to be opinion, not fact. Likewise, the statement that Abel thought Mann's actions were "leading the Town of Rye to destruction" could not be anything but a statement of opinion.

Whether "it was horrible" is hard to prove true or false, and both the text and the context suggests that this is opinion, not fact. Can a reader infer that maybe the author had some specific undisclosed information supporting the opinion? It's possible; but it's also possible to infer that from a claim that someone was a "political hatchet [man]" (which suggests that he's done some things that were "horrible," or at least bad). That's not enough, said the court in Mann, and it wouldn't be enough here; and Mann is one of many cases that take precisely this view.