Photo by Jason Rosewell on Unsplash

Your business may have an entry at online platforms such as Yelp and Glassdoor (or Avvo for attorneys).  You may have even used it to write reviews, both positive and negative, yourself.  These online review sites generally provide useful information while some posts are obviously angry rants by someone who has a bone to pick, a personal vendetta, or posted by a business competitor in some instances.  The veil of anonymity on the internet allows many people to say things they would never say in public or if their names and faces were attached the statement.  Thus, it is not uncommon for people to make blatantly false statements online that often times spells financial or reputational ruin to the recipient.

One legal remedy that businesses and individuals may have to combat these false statements is to bring a defamation lawsuit against the person who made the false statements.  However, it bears noting that not all false statements are defamatory and California law has specific requirements in order for someone to win a defamation lawsuit.

What is defamation?

If you’ve ever wondered what the difference is between defamation, libel, and slander, they’re all false statements that are published without privilege that has a natural tendency to damage someone’s reputation.  Defamation is the general umbrella and is made up of either libel or slander.

Libel occurs when the false statement is made in “writing, print, picture, effigy, or other fixed representation to the eye” and that writing “exposes any person to hatred, contempt, ridicule, or obloquy [strong public criticism or verbal abuse], or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.”  (Cal. Civ. Code § 45)

Slander, is essentially spoken libel.  A statement is slanderous if it falsely 1. Charges someone with a crime; 2. says (directly or indirectly) that the person has an infectious, contagious, or loathsome disease; 3. Tends to injure the person in their work; 4. “imputes to him impotence or a want of chastity;” or 5. Naturally causes actual damages.  (Cal. Civ. Code § 46)

Do you have a potential defamation lawsuit?

If you can establish the following things then possibly.  (I refer you to the various standards above that makes this more complicated).  But these are the things that matter generally:

1. The statement was an assertion of fact (not opinion). In a case out of Orange County, a business’s rebuttal on RipoffReport.com prefaced each false statement with the word “Fact:” thus, undermining the defendant’s argument that the heated statements made online by the business owner was a protected opinion.  It bears noting that in that case (Sanders v. Walsh), it was the business owner’s rebuttal to an online complaint that was considered defamatory and resulted in the business owner losing at trial and on appeal.

Although actually stating that a statement is a fact is an extreme example, the court will generally look at the circumstances surrounding the statement, including where it’s published, in determining whether a reasonable person would consider it a statement of fact or an opinion.  A statement published in the “Rants and Raves” section of craigslist.org is more likely to be an opinion while reviews of employers on Glassdoor.com is more likely to be considered a statement of fact.

2. The statement is false. Truth is a complete defense.
3. Publication. The statement must be communicated to a third party.
4. Injury. The false statement must either actually cause damage such as lost business, harm to reputation, shame or hurt feelings, or having to pay money as a result of the defamatory statements for example or damages could be assumed.

These days businesses live and die by their reputations and false statements posted online could be extremely costly.  Therefore, it is important to monitor what is being said about you online.  Additionally, businesses must also be careful to ensure that rebuttals to negative statements and reviews are truthful or risk finding yourself on the defense in a defamation lawsuit.  Although most defamation cases, although legitimate, are not worth pursuing, there are definitely cases that are.

Here’s what a lawsuit looks like.

Contact me at (949) 529-0007 if you have questions about defamation law or general California laws related to business disputes.

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