A writer friend of mine called me this morning before 9 a.m. I knew it was important, because anytime a writer picks up the phone that early in the morning, it usually involves blood or at least gore.
Not this time. My friend called to say that she hated me, because I was right about something she’d written. She was out of town most of the week, and got home to find that she is being sued by a publisher over a warning she posted on her personal blog after a bad experience with the publisher.
When I saw it a couple of weeks ago, I had called her and suggested a relatively minor rewrite because that publisher is known to file SLAPP suits against those who attempt to expose their shoddy business practices. But she asserted that she had “told the absolute truth, so there’s no way that the publisher could prevail.”
“Prevailing” isn’t usually the point of a SLAPP suit. Shutting up a critic by buying them in expensive legal paperwork is the point. Wikipedia defines a SLAPP suit this way: “A strategic lawsuit against public participation (SLAPP) is a lawsuit that is intended to censor, intimidate and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.”
In a defamation, product defamation, or tortious interference lawsuit, the burden of proof is on the defendant. So when you get sued, hiring a good lawyer is essential, and that can quickly get very expensive. My excellent attorney charges $280 per hour to keep me out of trouble.
A SLAPP suit can cost upwards of $20,000 to defend — even more if it goes to trial. Most bloggers, writers, and ordinary citizens who post reviews on Yelp, comments on Facebook, or write about their personal experiences with companies on a blog like this one can’t afford to defend against a SLAPP suit, so they settle by removing the offending comments, issue an apology, or even pay a smaller agreed settlement to make the litigation go away.
It’s nearly impossible to find an attorney who can afford to handle a SLAPP suit on a contingent fee or at no cost (pro bono). That’s because the strategy of the lawyers who file the suits isn’t to win the case. It’s to drag it out as long as possible, with motions, depositions, and requests for information (discovery) that take time and cost hard dollars for the attorney handling the case as well as the person being sued.
So the best way to handle a SLAPP lawsuit is to do your best not to become the subject of one. As I told my friend several weeks ago, how you phrase something matters — a lot — in cases like this.
Don’t Ask for a SLAPP Suit
Here’s what my friend wrote about the publisher that caused me to suggest revisions:
“XXXXX did an awful job of producing my book. This is a warning to anyone wanting to publish a book. DO NOT USE XXXXX, XXXXX is a rip-off operation.”
Had she written, “I thought that this publisher did an awful job of handling my book, and I wish I had never worked with them,” it could have reduced the chances of her being sued. Why? Because what she wrote (“do not use…”) is arguably tortious interference, contract interference, or product defamation. All three of those are common causes of litigation with lots of precedents, and lots of cases on file in nearly every state.
What I suggested (“I wish I had never worked with them”) is an opinion, usually protected free speech under the First Amendment to the U.S. Constitution. I am (generally) entitled to my opinion, and to express it. But when I state something as a fact (“They did a bad job” as opposed to “I was not pleased with their work” or “The contractor used substandard material” instead of “I don’t think that the Chinese drywall used in my construction was good quality…”), then it becomes a matter of proving a fact — which is a lot harder to do than most people think.
I’ve been collecting copies of SLAPP suits and cease and desist letters threatening a SLAPP suit for the last few years. If you’ve received such a letter — or sent one — or been sued, please send me yours. And whatever you do, don’t throw it away or ignore it on the mistaken belief that it’s a joke or you don’t have anything to lose even if they win.
A legal judgement will ruin your credit, and it can take away money you desperately need later. For instance, in many states a settlement from an insurance policy, money you receive from selling your house, tax refunds, a lottery win, or even future earnings or retirement payments may be garnished or attached to pay legal judgments.
I know one person who laughed when they were sued for a million dollars, saying, “I’m a single mom, I owe $50K on my student loans, and I get food stamps. You can’t get blood out of a turnip.” Several years later, that person was employee #4 at a tech start-up, and the first million dollars she earned when the company was sold was confiscated to pay that old judgement. Chances are, had she bothered to defend herself, she might have won, or at least settled at a lower cost.
Phrases to Avoid
Based on an unscientific review of about 200 such lawsuits and letters filed against individuals by businesses since 2007, there are four common elements. The first is profanity and pejorative names.
Fighting words, name-calling, and profanity crop up in a surprisingly high number of SLAPP suits. No one wants to be called names, so if you want to post your views online while minimizing your risk of being sued, avoid getting personal, and avoid the kind of language your mother warned you about.
Three phrases that seem to crop up most often in the suits (based on an unscientific review of about 200 lawsuits filed by businesses against individuals for online reviews or social media comments) are:
- WARNING: Beware of… (or the variations: Stay away from…Don’t do business with…DO not hire…Do not buy…Do not waste money…)
- SCAM ALERT: (Company or individual’s name) is a con artist… (or the variations: I got taken in by…These scammers took my money…Don’t trust…)
- (Company or individual’s name) lied (or the variations: misrepresented…promised but did not deliver…ruined my property description by doing shoddy work…did shoddy work…is the worst company description…)
When I first talked to my friend about what she’d written on her blog, she said plaintively, “But I don’t want any other writer to go through what I went through. I am doing this to save other people! I wish somebody had warned me!”
That’s something I hear often from people who’ve been hit with a SLAPP suit. For the most part, they thought they were doing a public service by warning other people about a business they had a bad experience with.
The common phrases and variations listed above have one thing in common: they’re written to steer business away from the company. That’s the problem. When you tell other people not to do business with a company, you’re crossing the line into lawsuit territory.
So here’s the first rule of writing a negative review, or posting a story of your experience with a company: Focus on your own experience, and don’t tell other people what to do. Keep your language in the first person. “I hired…” “I found…” “I paid…” “I thought…” “I feel…”
Legally, there is a difference between these very similar comments — so avoid phrases like the ones in red, and focus on statements of opinion like those in blue:
- “Don’t eat at Deb’s Restaurant. The food will make you sick.” vs. “I won’t be eating at Deb’s Restaurant again after spending last night hugging the porcelain fixtures in my bathroom. I have never felt so sick!”
- “Don’t buy flooring from Peek’s Carpet and Tile! They scammed me out of $600 to remove old tile, and then wound up putting new tile down on top of the old tile. Now my foyer is ruined and the new tile is coming up, and they won’t refund” and “In our recent flooring experience, I wish that I had stopped the work as soon as I saw that the installer was putting new tile down over the old tile, even though I had paid to have the old tile pulled up.”
- “Bottom line: Do NOT put yourself through this nightmare of a contractor.” vs. “I wish I had never hired this contractor. I was very unhappy with the results.” (This one resulted in a $750,000 defamation award for a contractor who sued a homeowner after her review was published on Yelp and Angie’s List.)
- “Don’t waste your money with these guys. Hire (another company) instead.” vs. “I wish I had hired (another company) first. I wasn’t happy with (first company’s) work, and paid (another company) to come in and re-do things the way I wanted.”
One thing to take special note of: don’t attempt to disguise an assertion of fact as an opinion in an attempt to avoid a lawsuit. For example saying, “It is my opinion that John Doe is the hacker who stole credit card numbers and ran up a charge on my credit card” isn’t likely to be viewed as an opinion by anyone reading it, including a judge.
Don’t Try to Prove the “Truth”
It’s a common belief that as long as you tell the truth, you can’t be sued — or, if you are sued, you can’t be held liable. Unfortunately, proving exactly what the truth is can be costly, time-consuming, and a lot harder than you think.
Let’s say that I am unhappy with a haircut. If the salon sues me, claiming that what I said wasn’t true, and I need to prove the truth of what happened, I would need to be able to:
- Prove that I was in the salon on the day I said I was. (Receipt of payment, email confirming appointment, check-in on social media site, witness who saw me there, etc.)
- Prove that the hairstylist I said cut my hair was working that day, and cut my hair. (Same “proof” as the first item.)
- Prove that no one else touched my hair after I left the salon. (Hard to prove a negative!)
- Prove that the haircut provided was different than what I asked for or approved at the time. (Who keeps before and after photos of their hair? Writes down the instructions given to a hairstylist? Goes to the salon with a witness who can confirm what was said?)
- Prove that the haircut was substandard for some reason. (Exactly what was wrong? Too short? Uneven? Damaged hair? Photos and “expert testimony” may be needed.)
Even if I can prove those five elements, depending on how I wrote my negative review, the stylist might still win if he or she can prove that they suffered damages (loss of a job, loss of income, decreased bookings, etc.) as a result of my review.
The saving grace for many people who write reviews is that the people whose reputations were damaged may not have the wherewithal to find and hire a lawyer to sue on their behalf. But an increasing number of small businesses are suing over online reviews and social media postings.
There are reputation management firms that offer clients the documents they need to file small claims court suits on their own, and there are states where a “small claim” case can result in up to $15,000 in damages, with an automatic judgement if the defendant fails to show up in court.
The Electronic Frontier Foundation (EFF) offers an excellent guide to online defamation that outlines what you can — and can’t — say in an online review.
Review/Comment Tactics to Avoid
Most of the “rules” for online comments and postings are subject to being interpreted in the context of where and when they were written. For instance, it matters how many times you post something. A single review might not be considered tortious interference, but posting the same rant on every online review site you can find and sending it to every local consumer reporter or letters to the editor site probably crosses the line between “expressing unhappiness over a transaction” and “trying to injure the reputation” of a person or company.
Taking revenge for something you are upset about or intending to cause financial harm to the person or business you’re writing about is another kind of “context” courts can consider. Specifically, don’t threaten a business. Here are several “threats” found in emails submitted as evidence in recent lawsuits won by business owners against online reviewers.
- I’m going to make it my business to tell everyone I meet what a crook you are.
- I am going to tell everyone not to do business with you.
- If you don’t fix the problem you caused, I am going to ruin your reputation online.
- You just turned a satisfied customer into someone who wants to see you put out of business by negative reviews.
Some statements are considered libel per se — that is, unless you can prove them to be true against a very high standard of proof (which, as noted above, is hard to do), you will likely be found guilty of defamation. Avoid statements that:
- Charge any person with crime, or with having been indicted, convicted, or punished for crime;
- Impute in him the present existence of an infectious, contagious, or loathsome disease;
- Tend directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects that the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits;
- Impute to him impotence or a want of chastity.
The first and second are pretty easy to understand. The third one gets many people into trouble with their online reviews. You may think that the installer who came to your home to hook up your new computer couldn’t tell a router from a plunger, but saying so is likely to result in a damage award if he shows up in court with a diploma from a reputable trade school or university, or even his certification from a vendor or company where he works.
As for the last one, if you’re talking about someone’s sexual habits in an online review, you’re probably so far over the line on what’s acceptable that what you say about their chastity may be the least of your worries. Just don’t go there.
Pictures Can Paint 1,000 Libelous Words
One final suggestion. Take extra care with photos, cartoons, and videos. You don’t have to say or write a single word to be guilty of libel, defamation, or tortious interference and their cousins contract interference and product defamation. A picture can result in a defamation lawsuit, too.
For example, let’s say that I have a bad experience with a hotel, and post a negative review on my personal blog — and then illustrate it with a photo I snagged off of Flickr, making sure that it was available to use under a Creative Commons license. (No copyright infringement for me, thanks!)
If that photo shows an employee of a hotel (the one I stayed at or any other hotel), and puts that individual “in a bad light that tends to injure his reputation or standing” in his profession, then I’ve just committed defamation.
As a general rule, if you take a photo of something you’re unhappy about — a stained bed cover in a hotel room, a dirty glass in a restaurant, an empty gas tank when you pick your car up from the dealer after service — make sure to turn on the date/time stamp on your camera or cell phone. Don’t use a photo of any identifiable person without written permission to use it — and don’t use it at all if you’re writing something negative.
Beware of Emails & Requests for Help
Last, but not least, be careful with how you answer follow-up questions after an online review. I’m starting to hear more and more often about attempts by companies that are unhappy about online comments to trick a careful writer into crossing the line into defamation in comments or emails sent after the original post.
Here’s how it works. The company, using an alias, sends an email or posts a comment that asks the reviewer for help. The reviewer, assuming that they are part of a private conversation says something in their reply that wasn’t part of the original review. The result: a lawsuit.
This summer, I received no fewer than 300 comments and emails on two blog posts about the kinds of scams that parents of would-be child actors face. I’m convinced that at least 250 of them came from a company mentioned in one of the posts. I sent most of them directly to the spam folder, after the first few raised my suspicions.
All of the suspicious questions originated from an IP address that was within a very small range of the IP address hosting the company’s website. More importantly, they all told a sob story and begged me for help by “revealing the real facts” or “giving a plain answer” or even “helping me get back money they stole”. The goal is to induce me to claim that a specific company is unethical or engaged in a scam.
I answer all such inquiries the same way.
- I refuse to speculate about whether any company is unethical or not by truthfully saying that I don’t know.
- I encourage the person to check references and then decide for themselves whether to do business with any company.
- I repeat the key points from the blog post, and never add any details that didn’t appear in the original blog post.
- I wish the person well in making their own choice about who to work with.
My mother’s constant advice always rings in my ears when tempted to say something blunt and not very nice about a company or a person. “If you can’t state your complaint calmly and politely, wait until you can. Speaking out in anger demeans you, and when you speak in anger you can’t speak wisely. Making your case calmly and politely may not get you what you want, but it won’t get you into a fight you can’t win, either.
“Don’t say it in private if you wouldn’t say it in public. Just because you think it’s private, doesn’t mean the person you’re talking to won’t blab it all over town.”
Mom was right. I do share my opinions about companies and products, but I choose my words carefully before I post them. I think if everyone took time to cool down before posting a negative review and followed my mother’s advice about profanity and name-calling, then it would dramatically reduce the number of lawsuits filed. Don’t you?