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 …

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  1. Thomas 4

    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.

    1. Phil W
      Trollface

      Re: Still, look on the bright side

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

      1. Justice
        Facepalm

        Re: Still, look on the bright side

        We'll see you in court then, Phil.

        Apple patented patent trolling years ago.

        1. Phil W

          Re: Still, look on the bright side

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

    2. LarsG
      Meh

      Ban all online reviews

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

  2. frank ly

    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).

    1. LarsG

      Yes

      But one persons Truth is another persons Lie

      The grey area in between is for lawyers.

  3. Anonymous South African Coward Bronze badge

    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.

    1. Rampant Spaniel

      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?).

      1. Anonymous Coward
        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.

        1. vagabondo
          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.

          1. Jim_Beam
            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.

            1. vagabondo

              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).

        2. Pet Peeve
          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.

          1. mckeowbc

            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.

        3. mckeowbc

          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.

          1. diodesign (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.

      2. Pet Peeve

        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.

        1. Rampant Spaniel

          @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 :-)

          1. vagabondo

            @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?

  4. Tweetiepooh

    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.

    1. Anonymous Coward
      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.

    2. JimmyPage Silver badge

      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".

    3. kain preacher

      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.

  5. WonkoTheSane
    Stop

    Truth != Libel

    /discussion.

    1. Anonymous Coward
      Anonymous Coward

      Re: Truth != Libel

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

  6. vagabondo

    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.

    1. Pet Peeve

      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.

      1. PC Paul

        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...

        1. vagabondo

          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.

  7. Andy-Klockweiss
    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'?

    1. Anonymous Coward
      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.

      1. Eddy Ito

        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".

        1. Anonymous Coward
          WTF?

          Re: "Yelp off"

          "Lavender"?

          1. Eddy Ito

            Re: "Yelp off"

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

  8. JeeBee

    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.

    1. lglethal Silver badge
      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...

    2. Michael Strorm Silver badge

      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.

      1. teebie

        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.

      2. Anonymous Coward
        Joke

        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.

  9. Steve Sherlock

    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.

    1. Bakunin
      Thumb Up

      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.

  10. Robert Helpmann??
    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.

  11. SirDigalot

    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!

  12. Pet Peeve
    Thumb Up

    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.

  13. Tikimon
    Thumb Up

    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.

  14. Oninoshiko

    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.

  15. Boris S.

    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.

  16. The_Regulator
    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.

  17. Kevin Fields

    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.

    1. vagabondo

      Re: Here's the disputed language in the review.

      This is the best comment and report on this case that I have read:

      http://articles.washingtonpost.com/2012-12-04/local/35625084_1_yelp-online-reviews-defamation

      The current Yelp report, which is under continual review/change by Ms Perez:

      http://www.yelp.com/filtered_reviews/8tCNUqQyCV3ePikYsWIqwQ?fsid=1CplnCbNBPCrrNYPggO_Jg

      The court transcripts, etc:

      http://www.citizen.org/litigation/forms/cases/getlinkforcase.cfm?cID=794

      with the alleged defamations found in the Plaintiff;s Exhibits.

      Apparently in Va libel can be committed by implication. The Circuit Court was of the opinion that Ms Perez implied that Dietz Development was responsible for stealing, and that the allegation should be withdrawn pending the libel action being heard. The Supreme Court held that she should be entitled to maintain the allegation, whether founded or not, as Dietz could sue for damages if the libel was upheld.

      I find the Supreme Court's decision worrying because: (1) It assumes Ms Perez can/will pay any damages awarded; and (2) If the business folds as a result of this case, or runs out of money during appeal, justice will have been frustrated.

      I was surprised that the Circuit Court allowed the statements that Dietz was not a licensed contractor in Va without needing to make clear that the works in question did not require a licence.

  18. Jim_Beam
    Go

    Give your Feedback to Chris Dietz

    Let Chris Dietz know what you think about his handling of this client's complaint. He wont let you comment on his Facebook page, and he has taken his website down - but you can let him know what you think here and be sure to LIKE this page:

    https://www.facebook.com/DontDietz

    1. Boris S.

      Re: Give your Feedback to Chris Dietz

      If the woman made false or exaggerated claims then I hope he collects a lot of money from her. If her statements are 100% accurate then I hope he is held accountable for any frivolous lawsuits or allegations plus any damages or loss of value to her property. That is how the judicial system is suppose to work. The court of public opinion should have no bearing on the matter at all.

  19. Zap

    In this case it looks like Jane Perez is the one in the wrong to me, she did not provide a constructive review, but a nasty unfounded attack.

    The legal case has only been overturned because of a technicality "as said order does not prescribe the time during which such injunction shall be effective"

    but also because "the respondents have an adequate remedy at law" which means that he can sue her properly rather than just have the review removed

    http://www.citizen.org/documents/PetitionforReview2.pdf

    In my opinion Jane Perez is the Troll here, she did not pay a penny, held onto his tools, was offered to pay what she thought was fair and still paid nothing.

    Since then there have been a plethora of trolls who have tried to leave negative reviews even though they have never had any dealings with Dietz Development.

    I think this brings a more important issue to the news, the fact that Yelp encourages this kind of trolling and is slow to respond. For example under the review they offer buttons saying "useful", "funny", "cool" well what about an UNFAIR button.

    The guy did the work for an old school friend, she traded on that friendship, hence no deposit was taken. Whatever the state of the job, he spent money on materials and not all of his work has been replaced by other contractors.

    I think this will run and run.

    "As for the VA DPOR they did investigate Dietz Development, after a complaint was filed by Ms. Perez, and found no basis to Ms. Perez's complaint and dismissed the investigation and complaint. A complaint and/or an investigation can be requested by anyone against anyone for any reason."

    "This client is a high school classmate of mine(1994), she asked me to do some cosmetic repairs to her newly purchased home in VA. I let her know that what she was asking to have done did not require a license in VA. I am a licensed contractor in MD and DC. I did the entire job for her without one payment, based on our high school relationship/friendship. I was never paid one penny from her, although she kept telling me, "I just moved, I don't have any checks" etc, etc. I took her to court, only after asking her for months to pay me the balance or what she felt was a fair dollar amount for the work I did. She said no, and said she would win, as she knows contract law and would use it to make me lose. I took her to court representing myself, but didn't file the paperwork on time due to my oversight and trying to avoid loosing more money to this client by hiring an attorney. The case was dismissed. She did not win any case. It was dismissed for my lack of turning in the paperwork. I never was allowed by her to remove my materials nor tools/equipment, a value of over $2,000.00. The police investigated her claim of theft but found no grounds for her claim nor did they believe her statements. No charges were filed, no police action, no court action. If theft was made, it was her stealing services and money from me. A very sad way to treat a former classmate who did $13k worth of work for free and was never paid a penny for his time nor material.

    Please note she (Jane Perez), around the same time as she used my company and our services and then didn't pay, also seemed to be involved with similar such cases with a dry cleaner and a moving company. See her reviews. Now, this must be showing her true colors and intentions, or really really amazing coincidence and bad luck on her part. "

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