Guide Through the Legal Jungle

Options for Responding to Negative Online Comments, Reviews, and Defamation

Someone posts online a critical comment about you or your company, and it is having a negative impact on your business. What can you do?

Reality Check. Realize that not every critical comment qualifies as a defamatory or libelous comment that merits legal action. To be defamatory, the statement must be false. The First Amendment protects our rights to express our opinions and to share (truthfully) any bad experiences we have with a business. The First Amendment even protects us if we share those opinions and experiences in a tasteless, mean way. Here is a comparison of critical statements that are defamatory versus critical statements that are non-defamatory. If you are on the other side and want to express (truthfully) your outrage about a situation, here are examples of good (and not-so-good) word choice suggestions as a guide to staying on the non-defamatory side of the line.

Outreach to Poster. If you view the poster’s complaint as having some validity; and you can remain calm and objective in your communications, it might be worthwhile to engage the poster in a constructive dialogue. Some companies view customer complaints/feedback as an opportunity to showcase their customer service prowess and uncover improvements for their products/services.

Platform Assistance. Some online platforms will work with you to remove comments that are defamatory, violate the platform’s terms of service, or are otherwise inappropriate. However, federal law insulates platforms from liability for defamatory statements made by visitors. Hence, platforms like Yelp, Amazon, Facebook, etc. have discretion in what they deem as inappropriate and whether they will remove it. Many lawsuits attempting to force social media platforms to remove material are unsuccessful.

Positive Statements. One method of diluting a negative review or comment is to seek favorable reviews. But be careful. As I will discuss further in a future posting, there are right and wrong ways to request online reviews. Doing it the wrong way can lead the Federal Trade Commission to conclude that you have violated its Guides Concerning the Use of Endorsements and Testimonials in Advertising.

Reputation Management Companies. There are companies that specialize in repairing one’s online reputation. However, if you do use such a company, be mindful that some companies in this space might use questionable tactics and provide sub-par service. Check references and use due diligence prior to selecting one with which to work.

Lawsuit. If the online statement is libelous, you can pursue a claim against the specific person who made the comment. Even if the person posts anonymously, there are methods of legally requiring the platform to reveal the name/contact info of the anonymous poster. When considering this course of action, one has to evaluate whether a lawsuit against the person is even worthwhile (e.g., what is the primary objective? If it is money, does the person have the resources to pay a monetary penalty if your lawsuit is successful?).

More Lessons on How Not to Use Stock Images. Improper Use of Stock Image in HIV Ad Results in Successful Lawsuits against Getty Images and Advertiser.

Stock images, stock footage, and stock music are fantastic resources when you need material for your website, advertisements, video productions, and other creative projects. Using stock materials can lower costs, legal risks, and administrative work – if used properly. Proper use is key as there are definitely incorrect and risky methods of using stock materials.

HIV Ad Results in Lawsuits against Getty Images and Advertiser

In April 2013, the New York State Division of Human Rights released an advertisement advocating rights for people who are HIV-positive. The ad featured a picture of Avril Nolan with the caption “I am positive (+),” and, “I have rights”. You can see the ad in the New York Post coverage.

However, Nolan is not HIV positive and did not consent to the use of her image in the ad. The New York State Division of Human Rights obtained Nolan’s picture from Getty Images, a well-known stock image company. Getty Images obtained the picture from photographer Jena Cumbo, described as an acquaintance of Nolan, who took the picture.

The incident resulted in Nolan filing lawsuits against both the New York State Division of Human Rights and Getty Images. I initially blogged about this incident in 2013. Since there has been some resolution to the legal proceedings, I thought it worth re-visiting the mistakes made by the New York State Division of Human Rights, by Getty Images, and by the photographer.

The New York State Division of Human Rights’ Mistakes:

Kudos to the New York State Division of Human Rights (NYSDHR) for licensing the image from a reputable stock image company rather than allowing its staff to meander the internet in search of images to cut and paste. (Some companies do that for their social media posting needs and it often does not work out well.)

NYSDHR Mistake One. Unfortunately, no one at NYSDHR read the Getty Images license agreement. The NYSDHR staff person who made the online purchase clicked through the license agreement while downloading the Nolan image but did not read the license agreement which contained the following provisions:

"2.6 Pornographic, defamatory, or otherwise unlawful use of [stock images] is strictly prohibited, whether directly or in context or juxtaposition with other material or subject matter. (emphasis added)

2.7 “If any [stock image] featuring a model or property is used in connection with a subject that would be unflattering or controversial to a reasonable person”, the stock image must be accompanied by a disclaimer indicating “that: (i) the [stock image] is being used for illustrative purposes only; and (ii) any person depicted in the [stock image] . . . , is a model."

NYSDHR Mistake Two. Several NYSDHR staff people reviewed and/or participated in preparation of the ad. Yet, none of them considered the implications of using the picture of a woman who’s not HIV positive as the focal point of an “I’m HIV-positive” advertisement.

The Outcome for NYSDHR. Those actions constituted negligence by NYSDHR. As a result of negligently labeling Nolan as HIV positive in its advertisement, NYSDHR was found liable for defamation and for violation of Nolan’s privacy rights in a summary judgment motion (Nolan v. New York, 2015 NY Slip Op 32023(U) (Court of Claims, Oct. 18, 2015). The Court of Claims left the issue of NYSDHR’s damages for a subsequent trial.

Getty Images’ Mistakes:

Getty Images’ Mistake One. During the purchase process, Getty incorrectly informed NYSDHR that Nolan had signed a model release and that the image was available for commercial use.

Getty Images’ Missed Opportunity. During the purchase process, Getty learned that NYSDHR would use Nolan’s image for advertising. However, Getty did not make any inquiries regarding the advertisement’s subject matter. Since not all purchasers are going to read Getty Image’s eight-page licensing agreement, the purchase process presents a good opportunity for Getty Images to highlight the additional steps required prior to using stock images in an ad about a sensitive subject.

The Outcome for Getty Images. Nolan sued Getty Images for using her image for trade or advertising purposes absent any written consent in violation of New York Civil Rights Law §§ 50 and 51 (the state’s privacy laws). Getty tried very hard to get Nolan’s complaint dismissed by pushing any liability onto NYSDHR and the photographer. Getty’s arguments included the following:

• Getty had a First Amendment right to display Nolan’s image in its database and license the image to the press;
• Neither NY Civil Rights Law nor the First Amendment required Getty to investigate the existence or validity of every image release within its database
• Nolan was a model and such status negated her privacy claim.

The court disagreed with Getty finding that Nolan had a valid claim against Getty for placing her image in the Getty catalogue, especially where that photograph is ultimately used in an advertisement in a manner that created a false impression about Nolan. According to the court there were many factors that needed to be resolved via summary judgment or trial:

• whether Nolan is a model,
• whether Nolan signed a written release,
• whether Civil Rights Law §§ 50 and 51 required Getty to investigate the existence of a release signed by Nolan,
• whether the First Amendment protects Getty's exploitation of Nolan's image without Nolan's written permission,
• whether Getty's inclusion of the image in its database of images available for licensing qualifies as use of the image for either advertising or trade purposes, and
• whether Getty can shift to NYSDHR and the photographer the burden of obtaining Nolan's written consent.

Getty decided not to pursue answers to those questions and settled with Nolan in January 2015.

The Photographer’s Mistakes:

Nolan posed for the photograph in May 2011 in connection with an article in Soma Magazine about New Yorkers interested in music. Nolan did not receive payment for the photograph, did not sign a written consent form, and did not grant permission for use of the photo for any purposes other than the Soma Magazine article. The photographer provided that image to Getty for inclusion in its stock image database.

According to Getty, as part of that transfer, the photographer signed Getty Image’s contributor agreement. I just took a look at Getty Images contributor agreement and it does require that those submitting images to Getty obtain valid model and property releases where necessary in accordance with the Submission Requirements. It took a lot of clicking through other areas of Getty Images website to determine when those Submission Requirements deem it necessary to obtain model and property releases.

Ms. Nolan did not sue the photographer. The photographer likely does not have the deepest pockets of the parties involved in this affair. She and Ms. Nolan might also be friends or at least social or professional acquaintances. While it appears that the photographer escaped unscathed, she likely did not strengthen her relationship with Getty Images and Getty Images might pursue her for reimbursement of any settlement feeds paid to Nolan. The Getty Images contribution agreement does include indemnification provisions.

Online Snarking. Is It Libel or Free Speech? Some Libel Do’s and Don’ts for Online Speech.

With Facebook, Twitter, Yelp, online forums, and so many other digital venues in which to share our thoughts with the world, it is easier than ever to become the target or the perpetrator of libel.

Some Defamation and Libel Basics

Defamation law varies from state to state but there are several general, common principles. You defame someone when you make a false statement about the person and the statement harms the person’s reputation. The defamatory statement is libel if you write it down and share it with other people. When you simply speak the defamatory statement, that’s slander. Defamatory statements posted online are libel.

To be defamatory, the statement must be false. A truthful statement - even if unflattering - is not defamatory. Similarly, a statement of opinion is not defamatory. However, do not take this as carte blanche to make any statement you want hoping to pass it off as an opinion. Merely labeling a statement as opinion does not insulate the statement from being defamatory. “I think Mr. Jones is a dishonest person,” may be a valid non-defamatory statement of opinion. In contrast, “I think Mr. Jones is embezzling money from the company,” is likely defamatory if Mr. Jones is innocent of embezzlement.

Libel Do’s and Don’ts for Online Speech

DO understand that you are accountable for your Internet speech. Just because you present it in 140 characters or place it in a Facebook posting does not mean you are not accountable for your defamatory language.

DO realize that every online, negative comment about you or your business is not libel. The First Amendment protects a customer’s right to cybergripe, that is share online the truth about any bad experiences he has had with your business. In many cases, the disgruntled customer may even use a website name that mimics and parodies the business’ name – JonesConstructionIsAwful.com. The cybergriper steps outside legal boundaries only if his criticism includes false statements and those false statements harm the business.

DO realize there is more leeway when making comments about public figures and issues of public concern. The risk of libel decreases if the real people mentioned are public figures or other people involved in events of public concern.

DO realize the benefits of the Communications Decency Act (CDA). Thanks to this federal law, online forum operators, bloggers, and website owners are not legally re¬sponsible for libelous statements posted by visitors to their sites. This is starkly different from the offline world in which a publication like a newspaper or magazine would be liable for printing a reader’s defamatory comments.

DON’T think you can hide behind anonymity. While you have a First Amendment right to speak anonymously, the First Amendment does not make it okay to violate someone’s rights. A person you libel online may be able to uncover your identity by serving a subpoena upon your internet service provider.

DON’T think eliminating or changing names is sufficient. The person about whom you make untrue statements might still have a libel claim even if you don’t mention him by name. The person might still be identifiable through your mention of a nickname, geographic location, physical description, personality trait, or real-life events in which the person was involved. If readers can identify the person about whom you make a false and harmful statement, there is potential risk for libel.

Libel Versus First Amendment Protected Speech

To place some of these principles and do’s and don’ts into context, here are comparisons of what is libel and what is not libel.

Not Libel. “This architect lacks compassion. He doesn’t care about the needs of his customers or the community.”

Libel (if untrue). “Don’t hire him for your project. He is on illegal drugs and has been hospitalized for mental instability.”

Not Libel. Posting online a photograph or video of someone. (However, depending on the circumstances, the posting might yield copyright, privacy, or other claims.)

Libel. Posting a photograph or video after adding a misleading caption or editing it in a way that negatively misrepresents what actually happened.

Not Libel. “This firm charged $10,000 when other firms charged only $5,000. The quality of their work was not worth the extra money.”

Libel (if untrue). “After demanding full payment upfront, this firm started work two months later than promised and delivered a structure that was not up-to-code.”

An earlier version of this article was published in the American Institute of Architect’s CRAN Chronicle.

Making Defamation Disappear: Turning Libelous Statements into Libel-Free Statements

What Is Defamation?

You defame someone when you make a false statement about the person and the statement harms the person’s reputation. The defamatory statement is libel if written and slander if spoken.

Reducing the Risk of Defamation

To be defamatory, the statement must be false. A truthful statement - even if unflattering - is not defamatory. Therefore, even when making controversial or potentially offensive statements, you can reduce the risk of a libel claim by focusing on the raw facts.

When doing a full pre-publication or libel review (also called vetting) of an article, book or script that is an exposé, I make word and editing suggestions designed to make the piece a more objective reporting of events and, thus, less likely to be libelous.

Here are illustrative examples of word selection changes that reduce libel risk:

DO NOT refer to John as Nick’s accomplice in an activity that did not result in a criminal arrest, charge, or conviction. INSTEAD refer to John as working with Nick on the activity.

DO NOT say John sabotaged the process (if John’s actions are not criminally or civilly actionable). INSTEAD say John opposed the process by {description of John’s actions}.

DO NOT say John misrepresented the process. INSTEAD say John misstated the process or John made an inaccurate statement {followed by a factual explanation of how John’s statement was inaccurate}.

DO NOT say John falsified claims. INSTEAD, say John made claims that did not withstand scrutiny.

DO NOT refer to a blog as a hate blog. INSTEAD, refer to the blog as a blog that is critical of {subject}.

DO NOT say Attorney Smith’s argument to the District Court begins with a list of poorly researched items accusing . . . INSTEAD, say In trying to convince the court, Attorney Smith used a list of items that were inaccurate or used out of context.

DO NOT refer to Mr. Smith’s years of stonewalling INSTEAD, refer to Mr. Smith’s delays in sharing the requested information.

When Does Cybergriping about a Business Cross the Legal Line?

If people are posting negative comments online about your business, can you do anything about it? It depends.

Not every negative statement posted online is actionable. Criticizing a person, product or service online is often referred to as cybergriping – and it is perfectly legal as long as the cybergriper sticks to the facts.

The First Amendment protects a customer’s rights to share with others the truth about any bad experiences he has had with a business. In many cases, the disgruntled customer may even use a domain name that mimics and parodies the business’ domain name – JonesCarpetCleaningIsAwful.com.

However, the cybergriper steps outside legal boundaries when his criticism includes false statements about the business and the business suffers harm as a result of the false statements. In that case, the business may have a valid legal claim that’s worthy of a lawsuit – or at least a cease-and-desist letter.

Seinfeld Case Emphasizes that Opinions Are Not Defamatory

I have previously blogged about the copyright infringement and defamation lawsuit against Jessica and Jerry Seinfeld filed by Missy Chase Lapine here and here.

From the start, I believed Lapine’s defamation claim against Jerry Seinfeld was stronger than her copyright infringement claim against Jessica Seinfeld’s cookbook. However, in the end, the court dismissed both the copyright and defamation claims. The defamation dismissal just took a little longer.

Basis of Seinfeld Defamation Claim

The defamation claim arose from comments Jerry Seinfeld made during an October 2007 appearance on the Late Show with David Letterman.

In the complaint she filed to initiate the defamation lawsuit, Lapine originally accused Seinfeld of characterizing her as a stalker, assassin, and mentally ill person. Interestingly, Lapine changed her defamation argument during the course of the lawsuit. Perhaps because the court said the transcripts and recordings from the David Letterman Show clearly demonstrate that Seinfeld did not make the statements that the complaint attributed to him.

In the court papers Lapine later filed to oppose Seinfeld’s dismissal motion, Lapine based her defamation argument on the fact Seinfeld said "that Lapine had fabricated opportunistic allegations of plagiarism against his wife." The problem for Lapine with this second argument is that Seinfeld's statement qualifies as an opinion.

Opinions Are Not Defamatory

A statement of opinion is constitutionally protected and can not be defamatory. However, merely labeling a statement as opinion does not automatically insulate the statement from being defamatory. For your statement to qualify as an opinion, your audience must realize that your statement is not meant literally.

In Seinfeld’s case, the court said it was inconceivable that a reasonable person would believe that Seinfeld's statements were conveying facts about Lapine. Seinfeld, a well-known comedian, made the statements in question primarily on the Letterman show, a late-night entertainment program, during a comedic interchange between Seinfeld and Letterman. His comments were statements of his opinion about the lack of merit of Lapine’s lawsuit and were, therefore, not actionable.

Is News-Reporting Via Twitter More Akin to a Haiku or a Bumper-Sticker?

No television cameras were allowed in the Connecticut murder trial of the men accused of killing the wife and daughters of Dr. William A. Petit, Jr. in Cheshire, Connecticut. Nevertheless, those unable to be present in the packed court room were able to stay completely updated on each trial development as it occurred.

That’s because at least half a dozen mainstream journalists tweeted the trial. One reporter referred to this method as “haiku journalism”. A commenter to a New York Times article on the topic, “A Grisly Murder Trial, in 140-Character Bits”, thought comparison to haiku was much too flattering and referred to this evolving news-reporting method as “bumper sticker journalism”.

Using Twitter for news reporting raises questions about voyeurism as reporters sent out all the grisly details of a horrific crime and the lack of editorial review for a news article sent out in tweets. I’ll add two legal questions to the debate over twitter as a journalism method.

Does Copyright Protect Tweeted News Articles?.

News articles are protected by copyright. Several newspapers have been battling to force bloggers, portals, and others to show proper respect for those copyrights in an online world.

Does news sent out via Twitter enjoy copyright protection? I would say yes. While a single 140-character tweet is likely too short to qualify for copyright protection, a stream of tweets that together comprise one coherent story should qualify for copyright protection.

A related question is how much control over that copyright does the reporter or news organization retain? When you post to Twitter, you retain ownership in your tweets. However, you give Twitter “a worldwide, non-exclusive, royalty-free license” to use the tweet in any way Twitter wants. That means Twitter can stream or share the tweeted news story with other online and offline outlets.

Does the Risk of Libel Increase for Tweeted Articles?.

The news stories most likely to be tweeted include those stories that are sensational and controversial. When reporters are tweeting the stories as fast as they can type and there is no editorial overview, twitter-journalism seems to introduce more opportunities for defamation claims as reporters, who are only human, get their facts wrong and “type without thinking”.

A Shirley Sherrod Lawsuit against Andrew Breitbart?

In an interview with CBS’ Early Show, former Agriculture Department official Shirley Sherrod said she would consider legal action against Andrew Breitbart, a blogger who posted an excerpt of the video clip leading to Ms. Sherrod’s firing.

The Clip Versus the Full Video

The video features Ms. Sherrod speech at the March 27 NAACP 20th Annual Freedom Fund Banquet. The clip posted by Mr. Breitbart suggests that Ms. Sherrod, who is an African-American woman, denied assistance to a white farmer who was about to lose his farm. The full version of the video shows that Ms. Sherrod actually helped the farmer save his farm and that Mr. Breitbart’s clip was taken out of context.

You can view the edited clip and the full version of Shirley Sherrod’s speech here.

Likely No Defamation Claim; But Maybe False Light Claim

While Ms. Sherrod may not have a good defamation claim against Mr. Breitbart, she might have a good false light claim.

Defamation. You defame someone when you make a false statement about the person and the statement harms the person’s reputation. Mr. Breitbart distributed a clip from a presentation given by Ms. Sherrod. That’s unlikely to qualify as a false statement for defamation purposes if the words heard in the clip are words actually spoken by Ms. Sherrod.

False Light. False light may be the better claim for Ms. Sherrod. You commit false light invasion of privacy when you publish information about a person which – although the information may be true on the surface – creates an inaccurate impression of the person. False light claims result from “half truths” when producers embellish a story or use a statement or photograph out of context.

As a public official, Ms. Sherrod might also be required to show that Mr. Breitbart acted with actual malice when placing her in a false light. Actual malice exists if Mr. Breitbart realized or should have realized that his presentation of the clip created an inaccurate impression of Ms. Sherrod.

Resolution of Seinfeld-Lapine Cookbook Lawsuit

I blogged about the Seinfeld-Lapine cookbook spat when Missy Chase Lapine, author of The Sneaky Chef, first filed a copyright and trademark lawsuit against Jessica Seinfeld, author of Deceptively Delicious and wife of comedian Jerry Seinfeld. My predictions for the case came true. I love when that happens!

Courts Grant Summary Judgment to Seinfeld on Copyright and Trademark Claims

First, the court confirmed that hiding vegetables in foods children enjoy is a basic idea and copyright does not protect basic ideas. Copyright infringement requires substantial similarity and the court found none between The Sneaky Chef and Deceptively Delicious. Lapine argued that the cookbooks have a similar organization, pattern, structure, and sequence in that both books have

• a cover and title conveying a concept of secretly getting children to eat healthy foods
• an introduction or forward by a doctor
• a personal narrative by the author describing her struggle, revelation, recipe testing and effects
• a discussion of appliances
• a list of essential ingredients
• instructions for making the purees in advance and storing them for later use
• a collection of individual recipes using those foods

However, the court found all these elements to be stock elements of cookbooks (i.e., they are elements one would naturally expect to find in a cookbook) and as such, copyright does not protect them.

The look and feel of the two books also differed in several ways. According to the court:

• Deceptively Delicious lacks the extensive discussion of child behavior, food philosophy, and parenting that pervades The Sneaky Chef.
• The Sneaky Chef uses primarily black, gray, and shades of brownish orange while Deceptively Delicious employs bright colors and more photographs.
• The Sneaky Chef assumes greater familiarity with cooking, recommends thirteen methods for hiding healthy foods, and provides recipes for multiple-ingredient purees, Deceptively Delicious instructs readers about only single-ingredient purees and contains more basic instructions.

The court also made short work of the trademark infringement claim finding that the images used on each of the cookbook covers were not similar.

Court Does Not Grant Summary Judgment on the Defamation Claim

In my previous posting on this matter, I predicted that Lapine’s defamation claims against Jerry Seinfeld for remarks Seinfeld made on the Late Show with David Letterman were actually stronger than her copyright and trademark claims. Note that the court allowed the defamation claim to stand. I don’t know the status of that claim but I would not be surprised if the Seinfelds ultimately prevail on the defamation claim. It’s just going to take longer.

Some Consolation for Lapine

Even though Lapine has lost most of her lawsuit, she can take some consolation that her book is outpacing Seinfeld’s in the marketplace. The last time I checked, Amazon ranked Lapine’s The Sneaky Chef at 1,183 in books and Seinfeld’s Deceptively Delicious at 8,740 in books.

Courtney Love’s Twitter Defamation Lawsuit

Dawn Simorangkir, aka Dawn Younger-Smith, aka Boudoir Queen is an up and coming fashion designer who was retained by singer Courtney Michelle Love. After becoming unhappy with their business relationship, Love posted some not-very-nice and profanity-filled online comments about Simorangkir.

Simorangkir has filed a lawsuit against Love for libel and related claims.

Why Is Everyone So Atwitter Over the Courtney Love Defamation Lawsuit

Everyone seems quite excited that this defamation action spawned from comments that Love posted on the popular social networking site Twitter. Evidently, the Love/Simorangkir lawsuit is the first defamation action connected to someone’s activities on the micro-blogging site. Note that Love also posted comments on MySpace and on Simorangkir’s etsy.com feedback page

Is This Defamation Lawsuit Really Special?

Outside of the use of Twitter, I would say this defamation lawsuit is not that special. However, it should serve as reminder that bad behavior is not immune from consequences just because the bad behavior takes place via the internet.

As a general review of how to avoid defaming people, you might want to listen to my recent One-Minute How-To – Challenge interview during which I gave a one-minute overview of How to Avoid Defaming People In Your Writing.

Is Courtney Love In Trouble?

Maybe. Much of Love’s internet musings are a rant which could be classified as Love’s statement of her opinion about Simorangkir or simply as name calling. Insults and name calling by themselves are normally not actionable as defamation.

However, within her rant, Love does make statements that a court might interpret as being offered as statements of fact. According to Simorangkir’s complaint, Love said Simorangkir sold drugs, is a drug addict, has a history of dealing cocaine, has a history of assault and burglary, has a record of prostitution, has committed grand theft, stole cash and goods from Love, has engaged in felonious behavior, lied, embezzled money, has committed blackmail, was deemed an unfit parent, lost custody of her child, is a racist and homophobe, has outstanding warrants for her arrest, and that the Austin police confiscated Love's property from her home.

If Love made such statements about Simorangkir and the statements are false, those are good grounds for a defamation claim.