back to article US court ungags Yelp reviewer who dissed builder

Negative reviews are okay, a Virginia court has ruled in a case hailed as a triumph for free speech. Justices Lemons, Goodwyn and Powell of the Supreme Court of Virginia ruled (PDF) that a woman's negative review of a building contractor on Yelp should not be taken down until a court has ruled that it is libellous. A 7 December …

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Still, look on the bright side

If the building thing doesn't work out for the chap, he could go into the rich, heady world of patent trolling, where you sue first and ask questions later.

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Trollface

Re: Still, look on the bright side

No he can't, I've patented patent trolling.......

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Meh

Ban all online reviews

Problem solved, but how will I then get my trolling fix?

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Facepalm

Re: Still, look on the bright side

We'll see you in court then, Phil.

Apple patented patent trolling years ago.

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Re: Still, look on the bright side

But I have a patent that pre-dates that. That patent is for patenting things!

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Worse than censorship?

"A 7 December judgment had ruled that Jane Perez should rewrite her review of builders Dietz Development, ..."

When you say 'rewrite', does this mean that the court ordered her to remove certain statements (censorship) or to change some statements to a form required by the court or the builder? If the latter the that would be disgraceful (IMO).

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Yes

But one persons Truth is another persons Lie

The grey area in between is for lawyers.

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People should welcome negative comments posted truthfully as these will help them to offer a better service to the customer.

Any companies putting up blinkers when it comes to negative comments, deserve epic failure.

Of course, honesty is required when posting anything negative. If you had a bad experience, do post it, but don't embellish and make things up.

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The honesty part is the most important, if the builder can present immediate evidence the review is false then sure she can be asked to remove the false statements or pay ongoing damages and damages for the original impact can be figured out. Otherwise the review stays until the builder can go through the normal process of a libel trial.

She shouldn't be forced to remove it, eve if it's false, but if she chooses to exercise her right to free speech and leave a false review up indefinately then she can accept the responsibility and pay damages indefinately. That is assuming the review is false (which we don't know yet right?).

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Anonymous Coward

The thing is here, that the builder is being assumed guilty. This is the fundamental difference between UK and US libel law. In the UK if I say "Bloggs and Co are shite builders" then that's an accusation and I have to prove that Bloggs are guilty. In the US, it's a comment and Bloggs have to prove that I'm guilty of libel.

In something like building work, "shite" can be very subjective and can turn on the question of what was a reasonable interpretation of words and phrases like "Smooth", or "a modern style", not to mention "prompt".

I'm not convinced that the US system of making the accused bear the cost and responsibility of defending themselves is actually better than our system of making the accuser do it, despite all the constitution waving and cries of "free speech" when these things come up. At the end of the day, one side or the other is potentially getting the shitty end of the stick.

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Meh

-- @Robert Long 1

But the judge's (overturned) "change/take down" order was not about the perceived quality of any building work. It was specifically related to an unproven accusation of theft, and incorrect references to a previous court case.

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If it's a matter of fact, and it's false, she should DEFINITELY be required to remove it. Freedom of speech doesn't allow you to make false statements that adversely affect others. In the US, this is called "yelling fire in a crowded theater" and will get you in trouble, rightfully so.

Allowing someone to leave false statements up in public because they have deep enough pockets to sustain them in the face of damages is a VERY VERY BAD idea.

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Boffin

@robert long

I'm interested in why you think "accuser pays" is ever a bad thing. When I said in an earlier message that we both "correctly" shudder in horror at each other's systems, that's was the british side of the argument - that in the US, the accused faces crushing legal costs defending themselves against frivolous cases. The US side of horror is that in the UK, truth isn't an absolute defense, and you have things like secret gag orders.

An "accuser pays" system with truth as a trivial and instant defense, would be a great system. It's a shame we have both cocked it up.

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@pet peeve

I understand what you are saying. However, we have free speech or we don't. Now if his business looses 10000 a month, he would be getting 40000 a month and theres nothing stopping him or the court posting an addendum to the review stating it has been proven false. He's making 400% of his normal salary, the review carries no weight as anyone who reads it also reads it is proven false and free speech is maintained. I totally appreciate others may not approve, but when I elected Supreme Leader and Eternal President you can expect more of the same crazy logic :-)

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@Rampant Spaniel

He's making 400% of his normal

And if the defamer is "a man of straw"? What would your position be with a malicious allegation of child-abuse? The allegation would remain on official records for all time. do you want the law to protect the legal system, or to dispense justice fairly?

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Libel doesn't cover statements of opinion. So going on Yelp and posting "Builder ABC is shite" wouldn't be covered under libel. However, saying something like, "Builder ABC went 50% over costs and 3 months after the estimated completion date still hasn't finished the work.", would be since those are statements of fact that can at least be attempted to be proved true or false.

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(Written by Reg staff) Silver badge

"Libel doesn't cover statements of opinion. So going on Yelp and posting "Builder ABC is shite" wouldn't be covered under libel"

In the UK you can be sued for defamation for an opinion if it is not completely backed by fact: for the fair comment defence to work, you need to have prove there is truth to support your view. So describing a builder as shoddy, incompetent, lazy, etc is unsafe unless you have hard evidence.

C.

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Re: @Pet Peeve

The US does have an "accuser pays" system, when it comes to the courts, but not to speech. In your "accuser pays" system of free speech, if I want to say something true, but possibly hurtful about a business or person, then who would I pay before I make the statement?

I think the US system is the better of the two here. If someone has wronged me and I want to actually extract money out of them, then I have to take them to court and pay up front. If I have a good case, then I'll be paid back, if not then it's on me. But speech is too important to be regulated in the same way. I shouldn't have to call a lawyer every time I open my mouth. But if I say something hurtful and false about someone, then I should be ready to face the consequences when their lawyers come knocking.

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Linux

Re: -- @Robert Long 1

Apparently that's what Chris Dietz' lawyers would have you believe a month ago, but the STATE SUPREME COURT just said otherwise. Ergo, you were misinformed, misdirected and now manipulated into making a fool of yourself.

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Re: -- @Robert Long 1 --@Jim_Beam

And you Jim_Beam are just a shit-stirring troll who has come here just to cause mischief on this topic.

My comment was based on the court transcripts (I have posted my sources in other comments), and the words of the judges involved. If you can demonstrate otherwise, please do, and quote sources (as any real penguin supporter would).

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A negative review (adversely) affected their business

That's the whole idea, just as a glowing review would.

The point of reviews is to help other decide for or against the reviewed. That said you do have to read the reviews and balance things. Look at the reviews on Amazon and other sites where you can have negative reviews because the customer made a mistake and didn't read the blurb properly (an example is a review for "Odd socks" where the customer complained that the socks didn't come in pairs and where not suitable tor business - that's the whole point of the product, you get 6 odd socks to wear in whatever combination you like).

Let's hope that the MP's here in the UK allow truthful reviews either way without interference.

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Anonymous Coward

Re: A negative review (adversely) affected their business

but if you tried to make thruthful reviews of some MP's they might be inclined to sue you for criminal libel.

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Ah, but Amazon ...

allow a debate on a review ... a neat feature which helps balance things out. I recently purchased a set of grab rails from an Amazon retailer. They were notably cheaper than anywhere else (anything intended for disabled people seems to attract a massive premium). There were a few 4/5 star reviews, and a couple of 0-star reviews. Reading the 0-star review it became clear the author was upset because the rails (which they admitted were "faultless" weren't supplied with rawl plugs and screws.

There were a few replies to that review, effectively saying "what a twat - you're saving £4 per rail, and you're niggling over 50p worth of screws".

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Re: A negative review (adversely) affected their business

Problem is yelp removes good reviews over time. IF you buy advertising with them they make it go away.

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Stop

Truth != Libel

/discussion.

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Anonymous Coward

Re: Truth != Libel

But truth is not always a defence against *Criminal* Libel.

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The Accusation of Theft

that she has made against the company;s employees seems to be what concerned the judge the most. She is apparently continuing to publish these accusations despite a police investigation failing to find evidence that any theft took place.

http://www.huffingtonpost.com/2012/12/06/jane-perez-yelp-review_n_2250302.html

UPDATE: Dec. 7, 8:45 a.m. -- On Wednesday Dec. 5, the judge granted a temporary injunction in favor of Dietz and ordered Perez to remove the reference to stolen jewelry from her review, according to the Daily Mail. He also ordered her to change a reference to the previous lawsuit because it included incorrect legal terminology.

-- It will all come out in the wash.

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Re: The Accusation of Theft

It sounds like she's totally in the wrong here then. You can't call someone a thief if you have no evidence that it's true.

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Re: The Accusation of Theft

"You can't call someone a thief if you have no evidence that it's true."

So talking hypothetically, if you KNOW they took something but didn't happen to get video and independent witnesses, then you aren't allowed to say anything?

It's surprising so many cases ever get to court really...

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Re: The Accusation of Theft

But, in this case there is some evidence (accepted by Ms Perez) that she did not actually consider Mr Dietz responsible for a theft, and had reported it to the police in order to make an insurance claim. There was a suggestion that the police investigation was closed because there was no evidence of ANY theft. However this was just a request for a preliminary restraint; we should wait for the actual libel trial before deciding whose behaviour was right or wrong.

I think that this demonstrates a case for using an examining magistrate/investigating judge to look at the evidence and determine what actually happened rather than the obfuscating courtroom antics demonstrated in this instance of the adversarial system.

Ian Hislop (of Private Eye) said on a recent Have I Got News for You ( w.r.t. the Leveson Report) that in his opinion it was OK to publish defamation only if the publisher was willing to prove truthfulness or pay the damages. He did not think that it was right to defame someone without accepting these responsibilities/consequences. He was against defamatory publishing merely to make mischief and or money.

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WTF?

"Yelp off"

Since when has Yelp been the protector of free speech in their reviews?

I wrote a (deadly honest) review of a garage franchisee playing that ancient game of 'false MOT failures to generate business' to warn others of their practices, and it was taken down by Yelp.

Obviously they don't like to bite the advertising hand that feeds them.

So now I no longer read any Yelp reviews as I find them untrustworthy.

Oh well, I guess that last statement means this post will be taken down now too.

Aside: Surely if a review is merely stating an OPINION, can an opinion be libellous?

. . . OK, who's gonna be first to reply by saying 'and don't call me shirley'?

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Anonymous Coward

Re: "Yelp off"

Because the OPINION must have facts that it was based upon. Say I just hate Company X, never dealt with them I just hate them. I write a review that makes them look bad. What facts were used? None other than just a 100% opinion.

As for the free speech part. In the US we are guaranteed free speech that that it is only that the government cannot remove that right, it has nothing to do elsewhere. You can't go in yell and swear at your boss and then when you get fired claim free speech. There are laws that allow her to voice her opinion if it is based upon facts and firsthand facts at that.

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Re: "Yelp off"

I don't believe opinion needs facts at all. It is one thing to say; "X is a dishonest, scurrilous and lavender shop" which indicates a statement of fact not opinion. Opinion is not a statement of fact but a statement of perception; "it is my estimation that X shop is not only dishonest but scurrilous and lavender as well".

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WTF?

Re: "Yelp off"

"Lavender"?

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Re: "Yelp off"

Well, I can imagine, with a little stretching, where a green company might consider being called lavender libelous. Maybe?

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The only time a review should be taken down is if a court says so.

Otherwise the removal of reviews (and they will all be negative reviews) is merely a tool to make businesses (paying the review system provider, e.g., Yelp) look better. The ultimate result is that all the reviews are useless.

Best to have a user based moderation of reviews to see if they helpful or not (e.g., Amazon). Someone bitching about 5p of screws and hence giving a 1 star review would get moderated down until their review didn't affect the overall score. Someone pointing out genuine flaws/issues/etc with a product will get moderated up, and thus affect the overall score.

Generally when I look at a product to buy, I want several reviews at least, and for them to be good useful reviews (usually filling in the inadequate product descriptions most websites have), with negative reviews clearly being user failure rather than product failure.

As for negative reviews of your business - a review site should offer a right to reply feature, and you should use it to engage with the customer, set the record straight, or just apologise. All of these will make you look better, and it's certainly a better option than Streisanding yourself in the court system.

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Go

Agreed

Hostelworld is one site I've used where the reviews can actually be answered by the company in question. Whilst a lot of the time the reviews are not answered, I have sometimes come across answers from the companies which point out the person complaining was informed about things beforehand (e.g. a complaint about nobody being there to check them in at 2am when it says quite clearly the hotel doesnt have a 24 hour reception and you have to inform them if your coming late). Alternatively some of the answers are genuine apologies, and a couple of answers have made me turn away from that hotel because they were arrogant head in the sand "Not our problem" answers. All in all, I find it a good system. Also they have a trusted user system which gives you an idea of how many reviews the person has done, so normally if a person has lots of reviews theyre pretty well travelled and so probably worth paying more attention to then someone who has never stayed in a hostel before and wouldnt know a good one from a bad one...

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Amazon's "helpful" and "not helpful" rendered worthless by fanboy abuse

"Best to have a user based moderation of reviews to see if they helpful or not (e.g., Amazon)"

Amazon's "useful review" meta-rating system has been abused into worthlessness to the point that I'd rather they simply removed it altogether.

A critical review of almost anything by a musician, author, television series, etc. with a notable fan following, is likely to be modded as "not helpful" by fanboys/fangirls of the creator. It's entirely predictable, and it's also blatantly obvious this has nothing to do with how helpful or informative it is (or isn't) and everything to do with partisan fans punishing dissenting views they don't like.

If Amazon actually cared about the usefulness of the "helpful"/"not helpful" meta-ratings, they'd have figured a way around this now. As it stands, they haven't, and it's worthless.

Even in cases where this isn't likely to apply, I never bother considering that someone else considers the review "helpful" or not. I can judge that for myself.

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Re: Amazon's "helpful" and "not helpful" rendered worthless by fanboy abuse

Which can make it useless for a tv series, book or CD, but still useful for something that doesn't have fans, like a pepper mill or (most) computing products. Or, if applied to the wider world, a firm of builders.

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Re: Amazon's "helpful" and "not helpful" rendered worthless by fanboy abuse

"Amazon's "helpful" and "not helpful" rendered worthless by fanboy abuse"

Obviously there needs to be an option to thumbs-up or thumbs-down the meta-ratings.

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Negative reviews are more valuable

Surely I'm not the only person in the interwebs who primarily reads the negative reviews when looking at a product or service. You can quickly see if someone's being unreasonable and are able to dismiss that review as worthless. On the contrary, if all the negative reviews are constructive and reasonable you know to avoid the product/company.

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Re: Negative reviews are more valuable

I tend to find the middling reviews are the the most informative. "Feels flimsy but then it was cheap", "Service slow but otherwise food good", that sort of stuff. It it gives you a much better idea of what you're getting into.

The five star raves and one star rants tend to be biased or generally uninformative.

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Childcatcher

Additional Information

Some review sites allow feedback from the business owner, clearly labelled as such. I do not know about Yelp's stance on this, but giving the business owner a chance to respond to public comments seems fair. It also lets their customers know whether they are responsive to their feedback.

Review sites are advertising, whether directly paid for by the businesses they review or not. Obviously, the plaintiff in this case did not go to the P.T. Barnum School of Business.

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You have to wonder

If the person addressed their issues with the builder before writing the review, if that is the case then they have some evidence obviously.

if it was theft maybe she should look "closer to home" for the culprit.

I think that if you leave a review online about a service you have physically received at your house or business before you have even approached the supplied of said service, you deserve all the shite you get. If they install a shower upside down, you see the work, say nothing at the time, then write a scathing review in the online journals, then you deserve to be slapped with an old, wet herring!

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Calling them "shite builders" is not libelous, because it's not a matter of fact - nobody believes that the building company is constructing stuff out of shit, so you're not defaming them.

In the US, it is ALWAYS protected to call someone an asshole, but you can't call them a liar unless you can back up your assertion that they're lying. Truth is an almost perfect defense against defamation suits. I understand that the UK is different there. I think I've said in the past that both nations shudder in horror at each other's systems, and both have a point.

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Rotten business can't hide anymore? YESSS!

Let's face it, there are plenty of crap businesses who are content to be that way. As long as they make a buck, all is well. Furious customers previously could only warn friends and family about them. Thanks to the Internet, exploited customers have a voice.

I've found great doctors and other providers thanks to good reviews, and managed to avoid plenty of idiots. This is GREAT for us, but definitely bad for the crap businesses. I'm sure they'd rather nobody heard of their stupidity like the good old days.

With that said, not all reviews are equal. I appreciate sites that let the business respond. Some nice responses to poor reviews have kept me interested in a company or product.

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Is this the case where the lady accused a contractor of theft, but when police looked into it, there was no evidence of said theft?

If that's the one we are talking about, she should pay him for damages.

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No news here

Negative reviews are allowed everywhere but false claims/statements that are disparaging are libelous and can cost you dearly - as they should.

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Black Helicopters

Hmmm

If I was a business owner (I'm not) I would be pissed if someone was writing an unfairly negative review of my company. Now if it was the truth then so be it, but if the customer is distorting the truth and that in turn is causing a loss of revenue I cannot say I blame the builder for going after her/him.

Lying/Bad Mouthing to me should be liablous (spell checker is off) if it is not a truthful statement and people need to realize that what they write online is not always annonymous and simply a comment it can have a real world consequence.

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Here's the disputed language in the review.

Here's what Perez said about the theft: "This is after filing my first ever police report when I found my jewelry missing and Dietz was the only one with a key." I don't find that to be libel, she is stating two facts, and the reader can draw their own conclusion. Perez believes Deitz took the jewelry, but did not explicitly say so. A police investigation didn't conclude that Deitz didn't steal the jewelry, only that they could not find any evidence that Deitz had stolen the jewelry. In other words, the only evidence (Deitz had a key to the property) was circumstantial and the theft couldn't be substantiated.

The other text that the court asked to be removed is, "I won in summary judgement (meaning that his case had no merit)." Since this is not what a summary judgement means, it is technically wrong.

I can see where the courts would ask for the latter to be amended, but not the former.

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