If you own a business, you likely rely on positive reviews on the internet to expand your clientele. And, to that end, one of your worst nightmares may be a review on a consumer review website labeling you something along the lines of a “crook,” “thief,” “scammer,” or “fraudster.”
We are frequently asked by clients what recourse is available to them in response to such derogatory postings, which are etched in the tableau of the internet – absent voluntary or judicial intervention – for anyone with a computer, tablet, or smart phone to see. But because internet defamation remains a somewhat nascent area of the law, there is, at present, some inconsistency between lower court rulings as the legal landscape in this area continues to form, and thus uncertainty among potential internet defamation plaintiffs.
Four recent lower court decisions in New York are illustrative, with three of them providing internet defamation plaintiffs with a glimmer of hope in the face of Appellate Division law adhering to the perhaps antiquated notion that “readers give less credence to allegedly defamatory remarks published on the Internet than to similar remarks made in other contexts.” Sandals Resorts Int’l Ltd. v. Google, Inc., 86 A.D.3d 32, 43 (1st Dep’t 2011).
In one case, the court denied the defendant’s motion to dismiss the plaintiff’s entire claim for defamation where, among other things, the defendant posted on a prominent consumer review website that the plaintiff “is an incompetent and dishonest person. He defrauded me out of 15K and has a trail of people to which he has bounced checks (including me) and caused harm.” Torati v. Hodak, 2015 WL 5578264 (2015).
In another encouraging case for internet defamation plaintiffs, following a trial the court found the following statements to be defamatory:
- “do not use mr sand less of staten island matt is the name he will destroy you [sic] floor he is a liar and a con artist beware.”
- “This guy mat the owner is a scam do not use him you will regret doing business with his company I’m going to court he is a scam . . . he is nothing by [sic] a liar he robs customers and promises you everything if you want shit then go with him if you like nice work find another he is A SCAM LIAR . . . .”
Technovate LLC v. Fanelli, 49 Misc.3d 1201(A) at * 2 (Civ. Ct. 2015).
Then, in a case emanating from Long Island, the court required the internet poster to take down a website he had created where, among other things, he compared a physician to “to the notorious nazi doctor, Joseph Mengele and asserts that he is anti-semitic.” The poster also wrote, “Beware, he is stubborn, act [sic] like a mule, and will discriminate against you if you are not Italian with a Mercedes Benz.” Sachs v. Matano, 004586/2015, NYLJ 1202741327174, at *1 (Sup., NA, decided October 28, 2015). There, the court pointedly noted that “[t]he tone of plaintiff’s statements, and the statements themselves, are nothing more than an attack on the defendants designed to injure their reputation and business.” Id. at * 2.
Finally, in a decision issued in December 2015, the defendant, a former employee of the plaintiff, was accused of posting comments labeling the plaintiff “crooks, liars, and thieves,” stating that the plaintiff does not provide loans as promised, and that the plaintiff’s business was a “scam.” While the defendant disputed making these remarks, the court nevertheless held they could not be deemed defamatory, even though the plaintiff alleged a 55% reduction in business since their posting, because, among other things, “a reasonable reader would view the internet postings as grievances of angry consumers who utilized an internet forum as a way to express their opinions.” SBC Telecom Consulting, Inc. v. Vega, 2015 WL 9851737, at * 7 (Sup. Ct. 2015).
Given the extent to which consumers and business alike rely on online reviews, it bears following how courts continue to grapple with the sometimes blurry line between actionable and non-actionable derogatory statements made on the internet – statements which justifiably result in nightmares for business owners and professionals. Because while freedom of speech for angry, jilted consumers is essential, it is undeniable that every day more and more consumers turn to the internet as their primary source for business referral – and that unfounded remarks made with the sole purpose of injuring another’s livelihood can – and do – cause real, if not irreparable, harm to business owners and professionals.