Yelp Sues Law Firm For Posting Fake Reviews

from the be-careful-what-you-review dept

Fake reviews online are something many people have just come to expect. Just recently we discussed an example of where it was obvious there were a ton of fake reviews on Amazon.com. Many sites that include user reviews work pretty hard to scrub the obviously fake ones, but it appears Yelp has taken that to a new level, deciding to sue a law firm for posting fake reviews. It should be noted that this same law firm, McMillan Group, previously had sued Yelp, claiming that it had been "coerced" into buying ads to get favorable reviews, so you could argue that there's a reason this particular firm was targeted. But, either way, it raises some fairly interesting legal questions.

Specifically, Yelp is arguing that when McMillan employees created fake accounts in order to post bogus positive reviews for their own firm, they violated the terms of service of the site. Thankfully, (unlike Craigslist), Yelp doesn't try to argue that violating the TOS is a CFAA violation. Instead, the lawsuit focuses on some specific charges including breach of contract, intentional interference with contractual relations, unfair competition and false advertising.

The filing details, rather comprehensively, how over a period of a few months, it appears that employees at the firm created accounts and immediately posted positive reviews of the firm, sometimes claiming things that are unlikely to be true. For example, certain users claim to be clients of the firm, which focuses on bankruptcy law, and then point out that the individuals in question have never filed for bankruptcy. There's also an amusing bit in which four accounts are created, one after the other, from a McMillan IP address, each leaving very positive reviews within minutes of creation, then logging out right before another account is created. And, of course, none of those accounts ever logged back in. Oh, and two of the accounts created one after the other started their posts with the identical sentence, including a typo:

They promissed [sic] me a fresh start through a Chapter 7 Bankruptcy and I got it.

Same exact sentence in both, one posted right after the other, but with different names and different accounts. Throughout the filing, you realize that these attempts to fake reviews are so hamhanded, that they were clearly done by someone who has no idea how to cover their own tracks. There were lots of cases of using the same IP address which was already associated with the company. In another case, the same email address is used for multiple accounts. It's as if they don't realize that Yelp can check these things.

No matter what, this should be an interesting lawsuit. While it does seem pretty clear that Yelp has caught this firm red-handed writing fake reviews, there are some pretty big questions as to whether or not that's actually a legal offense for the courts to sort out. There's a part of me that thinks that Yelp has every right to take action on its own site against those reviews and reviewers -- such as deleting the reviews and banning the reviewers -- but making the legal claims stick feels like a pretty big stretch. Also, some of the reviews they complain about don't even seem that questionable -- such as the so-called "circle of local lawyers" in San Diego who all reviewed each other. In some cases, those reviews just say things about how they recommend their own clients to those other lawyers when an issue comes up (such as bankruptcy) that another lawyer specializes in. That may actually be completely accurate.

There may be something to the fact that lawyer advertisements tend to be much more heavily regulated, so I could see a potential issue with false advertising, but I'm not sure that that's an issue for Yelp to take up directly, rather than whoever's in charge of making sure lawyers are advertising within the limitations of existing regulations. There's also some potential argument that a customer of the law firm could have standing to argue that they were harmed after believing fake reviews (though, even that's a stretch), but to argue that Yelp itself is harmed is, again, a bigger stretch (not impossible, but not a slam dunk).

None of this is a defense of the actions of whoever wrote those reviews, as it appears there's fairly strong evidence that the reviews are faked, I'm just not convinced that means it violates the law.

Filed Under: breach of contract, fake reviews, false advertising, law firms, reviews
Companies: mcmillan group, yelp

Manhattan Lasik Threatens Yelp Reviewer For Calling Them Scumbags Who Used Groupon As Bait-And-Switch

from the slappity-slapp-slapp dept

When will they learn? Yet another company upset by a negative review on Yelp has hired a lawyer to issue a highly questionable legal nastygram threatening a defamation lawsuit if the review wasn't removed. Paul Levy from Public Citizen has the full story of Manhattan Lasik hiring Frederic Abramson to send a legal threat to Michael Linden. Linden apparently purchased a $1795 Groupon deal for Manhattan Lasik, only to discover when he showed up that Manhattan Lasik claimed he wasn't eligible for the kind of surgery the Groupon covered. Instead, they wanted him to pay an additional $1700 for a different procedure. Linden, for obvious reasons, wasn't happy and posted a negative Yelp review back in July.

A few weeks went by and Linden received a letter written by Abramson, claiming that the review was defamatory, though without saying how it was defamatory. Levy called up Abramson and found him unwilling to point out anything actually defamatory:

When I first contacted Abramson to ask what parts of the letter were allegedly false, he began by blustering that everything was defamatory, but when I laughingly asked whether it was false that the doctor “was very nice,” he quickly focused instead on the use of words like “scumbag.”  Linden, he complained, had come in with a Groupon, the service covered by the Groupon would not have been right for his condition, and Linden, he said, simply refused to accept that he needed to buy a different kind of service even though, Abramson said, the reasons were given to him repeatedly.  So Abramson was admitting that the underlying factual statements were true, but complaining about the opinion words used.  In a similar case, a judge in Manhattan ruled that the words “scam” and “bait-and-switch” plainly reflected the consumer’s personal opinion of his dealings with a business.   Abramson knows about this case, having blogged about it himself a few years ago.

Abramson also complained that discount coupons were a major source of his client’s business, and have been a source for years, and he stands to suffer serious harm if consumers learn from Yelp that his discount coupons might not be worth a four-figure investment.  But as Med Express recently learned the hard way, companies can't sue for defamation just because criticism can hurt business, the criticism has to be based on deliberate falsehood.  And once the words are deemed opinion, they are  constitutionally protected.  And by the same token, I pointed out to him that if consumers needed to worry about whether the $1700 they would be spending up front for a Groupon might not do them any good, that was valuable information for consumers that ought not be suppressed.

I like the fact that Levy calls out the fact that Abramson himself blogged about the very case that destroys his own arguments. That's a nice touch. Levy also notes that Abramson has a bit of a reputation for copyright trolling -- and got smacked down by a judge in a case we wrote about. So it's probably not a huge surprise to find out that Abramson tried the laughable trick of putting this at the bottom of his threat letter:

Please be aware that this letter is copyrighted by our law firm, and you are not authorized to publish this in any manner. Use of this letter in positing, in full or in part, will subject you to further causes of action.

Oh really now? It's a pretty despicable practice by some lawyers to try to claim that copyright prevents the public discussion of questionable legal threat letters designed to silence criticism. Levy notes that it appears some lawyers have been lined up to support Linden should this progress -- with one of them raising the question of whether or not Manhattan Lasik is guilty of false advertising with its Groupon promotions. Levy and that lawyer sent the NY Attorney General's office some info for them to investigate.

Of course, Levy also notes that, yet again, this is one of those unfortunate situations where NY doesn't have a very good anti-SLAPP law to hit back on these kinds of threats. It's yet another reminder why we need a strong and comprehensive federal anti-SLAPP law that will help protect people who are expressing their opinions and presenting factual information in reviews from legal bullying.

Filed Under: anti-slapp, criticism, defamation, frederic abramson, opinion, reviews, slapp
Companies: manhattan lasik, yelp

Dentist Threatens Patient Who Left Yelp Criticism With Criminal Charges

from the enter-good-lawyer dept

We've seen lots of folks freak out when a bad Yelp review gets left about their service, but some people take it to extremes. Over at Popehat there's an example of a dentist, William Coppola, in San Antonio, Texas, who had a lawyer, Isabel de la Riva, send an absolutely ridiculous legal threat letter to a Yelp user named Jen B, who had left the following negative review of Dr. Coppola on Yelp:

I would never recommend this place to anyone. It is nice and clean. But the people are very pushy. I feel like they are doing more dental work than required. I went with a referral from a general dentist and they only spoke down to me about him, my child and came up with about 7 other teeth that had "issues" etc. They are seriously just out there for the money. Funny how when I went to a different dentist for another opinion they sided with MY dentist!!! DO NOT GO HERE.

Definitely harsh. Of course, there are a variety of different ways Dr. Coppola could have responded. He chose perhaps the worst: his lawyer didn't just threaten Jen B with highly questionable civil charges, but flat out ridiculous and bogus criminal charges as well. de la Riva first made some claims that were quite unbelievable, that she had somehow been able to get Jen B's medical records from another dentist -- which, if true, would violate all sorts of medical privacy rules:

Your willfully false and defamatory comments including that my client is "just out there for the money" are false. Our initial investigation shows that your review was written PRIOR to even seeing another dentist for a second opinion; and that when you did receive that second opinion at a later date, the diagnosis you received was the same or extremely similar to the one you received from Dr. Coppola. Please note that your post to encourage individuals on the internet to "not go here" is actionable. There are numerous lawsuits regarding these types of issues, and the Courts have found that in actions where misinformation is provided, there is serious financial exposure for each and every one of the defamatory comments you have made. If our investigation shows that your actions have resulted in damages to our client and its several locations in Texas, we will pursue legal action against you.

And while it's true that there are some (perhaps "numerous") lawsuits "regarding these types of issues," notice that de la Riva left out how nearly all of them end: with the service provider looking ridiculous after losing the lawsuit and getting a lot more negative attention for threatening to sue a customer for leaving bad feedback.

But, that wasn't the worst. There was the escalation into suggestion that such a review was a criminal issue, which is clearly bogus:

You are hereby on notice that if you fail to retract your libelous post on yelp.com that we will recommend to our client that he pursue legal action against you. Dr. Coppola has already consulted with the authorities regarding criminal charges and the Guadalupe District Attorney's Office stated that placing intentional false information on the internet can result in a felony charge of internet business defamation and libel. Although we have encouraged our client to pursue this avenue, he has not done so, mostly in deference to the military service of your husband. Dr. Coppola is a staunch supporter of the military and offers military discounts to his patients, such as yourself. However, he understands that if this matter is not rectified, that he must pursue all options at his disposal to protect his reputation of 33 years of exemplary service to his patients.

As Ken White points out, Texas repealed its criminal libel law in 1974. Also, just recently Texas passed what is probably the strongest anti-SLAPP law in the country, even better than the one in California. While de la Riva's letter initially worked in stifling Jen B's speech -- scaring her into pulling the review -- after White connected her with Leif Olson, a lawyer in Texas who was willing to help her out pro bono, things are looking up. Olson sent de la Riva and Coppola quite the epic reply. He notes that Jen B's post was clearly not legally actionable, but the threat letter from Coppola and de la Riva in response is legally actionable under Texas' anti-SLAPP law. Regarding the "investigation," Olson pointed out:

Your "initial investigation" has led you to facts that are wrong. Your letter stated that the "investigation" led you to the substance and timing of young Miss B's post-Coppola dental diagnosis and work. Northeast Children's doesn't need information about services young Miss B received from other dentists to secure whatever payment it might still be owed, and I assume that you and he aren't violating HIPAA and its regulations by getting access to young Miss B's medical records without her consent. This leads me to suspect that your "investigation" involved (1) conversations with an insurer that called to ask after possible double-billing after seeing claims from both Dr. Coppola and the dentist whom Jen B trusted to the dental work and (2) a search on Yelp, and possibly other review websites, for other reviews of dentists that Jen B left. This isn't the diligence required before one begins slinging accusations of libel.

Regarding the actual suggestion that anything Jen B wrote was defamatory:

A statement isn't defamatory unless it's false, and a statement that is "substantially true" isn't false. Nor is does "substantial truth" depends on how many nits Dr. Coppola thinks he can pick from Jen B's statement. A court evaluating whether Dr. Coppola is "just in in for the money" or the any of Jen B's other statements in the review will look to the "gist" of the statement in its complete context and whether a fully truthful statement would have been less damaging to an average reader than what Jen actually said. See McIlvain v. Jacobs, 794 S.W.2d 14, 15-16 (Tex. 1990). This is the test whether Dr. Coppola is a public figure or not. See Garcia V. Allen, 28 S.W.3d 587, 593-94 (Tex. App. -- Corpus Christi 2000, pet. denied) (applying test to non-public figure). It applies in business-disparagement cases like the one Dr. Coppola is threatening. See, e.g., Delta Air Lines, Inc. v. Norris, 949 S.W.2d 422, 426 (Tex. App. -- Waco 1997, writ denied).

Similarly, "[a]ll assertions of opinion are protected by the first amendment of the United States Constitution and article I, section 8 of the Texas Constitution." Carr v. Brasher, 776 S.W.2d 567, 570 (Tex. 1989). Hyperbole isn't defamation, either; according to the Supreme Court, rhetorical hyperbole "add[s] much to the discourse of our Nation." Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990); see also New Times, Inc. v. Isaacks, 146 S.W.3d 144, 167 (Tex. 2004). The San Antonio Court of Appeals, whose rulings bind the courts in both Bexar and Guadalupe Counties, has bluntly held that "rhetorical hyperbole and opinion are not actionable under Texas law." ABC, Inc. v. Gill, 6 S.W.3d 19, 32 (Tex. App. -- San Antonio 1999, pet. denied).

The review isn't defamatory.

Nothing in Jen B's review is defamatory under these standards--certainly not the two things that Dr. Coppola has identified.

Protected opinion: The review, in its parts and in its whole, is protected opinion. That is clear from the language Jen B used. She "feel[s]" that Dr. Coppola is doing too much work. Different people will have different perceptions of whether they are "speaking down to" someone about another professional or the person's child. That one dentist "sided" with a family dentist's recommendations rather than Coppola's recommendations depends on a person's comparison of the three recommendations.

Jen didn't express "opinions" that would lead a reasonable person to think that an untrue fact was true--as would have been the case, for instance, had she posted, feel it's inappropriate for Dr. Coppola to keep all of that Hungarian erotica in the waiting room." Nor did she post false statements of fact, as would have been the case had she written something like, "While I was there, Dr. Coppola waggled his wiggler at the wide women who walked west weirdly." Her statements are classic expressions of opinion with which Dr. Coppola may disagree, but which he cannot suppress.

Hungarian erotica? There's also a discussion on why hyperbole and rhetoric are protected. It's much longer, but I have to call out this gem:

Had she written, "If Dr. Coppola's grasp of dentistry is anything like his grasp of the First Amendment, it's no wonder that all of his patients need dentures," no reasonable person would think that every child who goes to Northeast Children's Dentistry needs false teeth. Exaggerating for effect has a long, protected tradition in the United States; statements much more offensive than an accusation of greed are, as a matter of law, not defamatory.

Bravo, Mr. Olson. As for the anti-SLAPP law, Olson explains:

Dr. Coppola has no claim for business disparagement or defamation. Nor, despite what your artfully crafted language about conversations with the district attorney begged Jen B to infer, is there any basis to charge her with a crime. (Indeed, Texas repealed its criminal libel statute 50 years ago. Acts 1973, 63rd Legislature, Chapter 399, Section 3.) But letters from lawyers are scary things; had she not been able to hire me, Jen B might not have known that she faces no true consequences from Dr. Coppola's threat other than a waste of her time. I trust that after you share this letter with Dr. Coppola, he will realize that, too.

Through his threat, and any possible follow-up he might pursue, however, Dr. Coppola has created some problems for himself. First, the lawsuit he threatens would Violate the Texas Citizens Participation Act, our version of an anti-SLAPP law. Tex. Civ. Prac. & Rem. Code ch. 27. Jen B's review is a communication; she made it as part of her exercise of her liberty of free speech; and it is about a matter of public concern, the dental services that Dr. Coppola and Northeast Children's are furnishing in the marketplace. The theoretical lawsuit would, unquestionably, be based on Jen B's posting of the review--her exercise of her freedom to speak. Jen B would get an expedited hearing and ruling on her request to dismiss Dr. Coppola's theoretical lawsuit. And once that theoretical case is dismissed, Jen B would be entitled to recover her legal fees--which are, I assure you, despite the eye-popping effect they sometimes generate, reasonable.

Too, Dr. Coppola now knows that there is no legal basis for his threats. Any lawsuit he files could be only for harassment, to impose costs upon Jen B, or to punish her for exercising her liberties, all of which are improper bases. He would, that is, be using the lawsuit as a form of extortion--using it to achieve an ulterior end that a defamation claim isn't meant to achieve. The same would go for any criminal case that Dr. Coppola might connive the district attorney into bringing. This would make Dr. Coppola liable for malicious prosecution, the damages for which would be whatever other legal fees Jen hadn't recovered in getting Dr. Coppola's claims dismissed. See James v. Brown, 637 S.W.2d 914, 918 (Tex. 1982) (elements); Digby v. Texas Bank, 943 S.W.2d 914, 925-26 (Tex. App. -- El Paso 1997, writ denied).

Jen B, however, doesn't have to wait for Dr. Coppola to do anything. Dr. Coppola's threats have brought into question Jen B's rights and legal relations between her and Dr. Coppola, and Jen B is entitled to have the question of those rights and relations settled through a declaratory judgment. Tex. Civ. Prac. & Rem. Code ch. 37. Because she's entitled to such a declaration, she can seek it without waiting to see if Dr. Coppola acts on his threat. And because she's entitled to that declaration on a claim that would entitle her to fees, she'll also be entitled to recover the fees she incurs seeking that declaration.

Leif Olson is also, obviously, well aware of how Dr. Coppola's bogus threats may generate much more negative attention towards his practice, and suggested in his letter that Coppola take a quick crash course on abusing the law to seek to censor someone:

Perhaps most crippling for Dr. Coppola, who purports to be jealous of his reputation, is the fact that he hired someone to write that threat letter at all. Before he did so, someone--perhaps while you were conducting your "investigation"--should have asked him if he has ever heard of Barbra Streisand's beach house. Someone even could have told him of the results that arise when someone runs the names Charles Carreon, Suburban Express, Bharat Aggarwal, or Thedala Magee through a search engine. Jen B's Yelp review, needless to say, still exists--as does Jen B's ability to digitize Dr. Coppola's threat letter. Jen B posted her Yelp review to inform people that she thought Dr. Coppola pushy and concerned about money; one can only imagine her growing excitement at being able to bolster that opinion with a bullying letter that demands money.

Of course, rather than actually file an anti-SLAPP claim, as would be Jen B's clear right as described above, Olson simply asked that Dr. Coppola promise not to pursue any claims against her, along with a handwritten (by Dr. Coppola) apology letter.

There's more in that letter as well, but bravo to Olson for a fantastic letter, and yet another set of kudos to Ken White for successfully making use of the Popehat Signal to bring Olson and Jen B together to protect free speech yet again.

Filed Under: defamation, isabel de la riva, lief olson, reviews, texas, threats, william coppola
Companies: yelp

Kitchen Nightmares Lawyers Threaten Infamous Samy And Amy If They Talk About Their Experience On The Show

from the hmmm dept

Last week we wrote about the crazy mess that followed the recent episode of the show Kitchen Nightmares on Fox, in which the star of the show, Gordon Ramsay, actually walked away from Amy's Baking Company, after the owners, Samy and Amy Bouzaglo, didn't take well to any criticism. After the episode aired, they were further mocked on Yelp and Reddit (Yelp "haters" were a key part of the episode), and there was an explosion of anger on the restaurant's Facebook page, though the couple insists they were hacked.

Following all of this, however, the restaurant announced that it was doing a grand "re-opening" today, which involved a planned press conference and a "job fair" to try to hire 30 new workers. As the show noted, the Bouzaglos apparently have difficulty keeping staff employed for very long. However, the "press conference" has been cancelled. The couple claims it had to do with death threats they received, though it might have more to do with a very different kind of threat: a legal threat from the producers of the show, as reported by RadarOnline.

Lawyers representing the producers of Kitchen Nightmares, Upper Ground Enterprises, sent the couple a letter warning them that talking about the show would be a breach of contract:

We understand that you are planning a public event on May 21, 2013, at which you will discuss your experiences and your "unflattering portrayals" on the show. If you speak about the show without Upper Ground's and Fox's prior approval, and if you disparage the show, its host, or its producers, you will breach your obligations under Paragraph 10 of your Personal Release and Paragraph 14 of your Participant Agreement. These agreements prohibit you from speaking publicly about Kitchen Nighmares, other than to acknowledge "the mere fact of your participation in the Series in personal publicity relating to yourself." Your conduct exposes each of you to liability for liquidated damages of $100,000.

Hmm. While this is a reminder to be careful about what sorts of gag clauses you sign before you do anything, it still seems like a highly questionable move by the producers. The more they seek to silence the couple, the more it suggests that perhaps the portrayal wasn't entirely fair. Meanwhile, the more the couple is allowed to stay in the news, the better one would think it would be for the TV show. The couple's actions and statements on the episode were absolutely ridiculous and clearly showed a restaurant/ownership not worth patronizing. Since then, the couple's confirmed statements (even ignoring the Facebook comments, whether or not you believe they were the result of hackers) concerning Yelp have only served to confirm that the couple can't take any criticism and seem to think that bad reviews of bad food are the world out to get them.

The decision to call out the gag order in the contract to silence them seems ridiculous by Fox. Even if the couple trashed the show (as expected), does anyone think that the couple has even the slightest credibility at this point? No one believes them. Pulling out the gag order makes the show look like it has something to hide.

Filed Under: amy bouzaglo, contracts, gordon ramsay, kitchen nightmares, samy and amy, threats
Companies: amy's baking company, reddit, upper ground enterprises, yelp

Yelp Fights Back Against Carpet Cleaning Service That Sued Anonymous Critics For Defamation

from the good-for-yelp dept

We've seen plenty of lawsuits involving people upset about Yelp reviews, but here's a fairly extreme case. Apparently, a DC-area carpet cleaning service named Hadeed Carpet Cleaning, which is somewhat infamous in the area for its "pervasive advertising" and direct mail coupons promising a $99 cleaning special, does not have the greatest reputation on Yelp. The key issue: apparently that $99 deal is often not honored. Also, there are multiple reviews of people getting a quote, dropping off a carpet, and then being told later if they want the carpet back they have to pay much more -- with various excuses being offered as to why they're charging more than the quote.

Hadeed then decided to sue seven anonymous reviewers for defamation. Here's the oddity: Hadeed does not appear to be suing them over the contents of the bad review. In fact, the company doesn't seem to dispute the various complaints about its pricing practices. Rather, it argues that it could not match these seven reviewers to actual customers within its database, and therefore, the reviewers are defaming them by misrepresenting that they were ever Hadeed customers. Hadeed appears to suggest that they reviews were really written by a competitor.

As we've discussed, many courts have adopted the so-called Dendrite rules for identifying anonymous speakers. The rules require giving the anonymous users a chance to respond and (more importantly) require the plaintiff to present enough evidence to prove there's an actual case. However, the court in Virginia chose to not apply any such rules, but rather allowed a subpoena to Yelp ordering it to identify the posters. Yelp has refused, and the court ordered compliance, which Yelp again refused, leading to the court saying Yelp was in contempt.

Public Citizen has now filed a brief on behalf of Yelp with the appeals court, arguing both that the Virginia court had no jurisdiction over Yelp, a California company, and that Yelp was correct to ignore the order since the First Amendment (which protects anonymous speech) requires much more proof before an anonymous speaker can be revealed.

When pervasive advertisements from a local merchant feature prices that seem to be just too good to be true, they may, in fact, not be the price that the average consumer will pay. Dozens of consumers who have used pseudonyms to post about their experiences with appellee Hadeed Carpet Cleaning, Inc. (“Hadeed”) on the popular website www.yelp.com, maintained by appellant Yelp Inc. (“Yelp”), report that Hadeed routinely fails to honor the advertised discount prices. Hadeed’s responses to several consumers on Yelp suggest that it recognizes the problem; yet its complaint for defamation singles out the authors of seven reviews posted on Yelp that say the same thing as the other online detractors of Hadeed and its sister business, Hadeed Oriental Rug Cleaning. Based on that allegation, Hadeed invoked the court’s subpoena power to strip its pseudonymous critics of their First Amendment right to speak anonymously.

The main question on this appeal—an issue of first impression at the appellate level in Virginia—is whether the trial court applied the proper legal standard in overriding the anonymous speakers’ First Amendment rights. Courts elsewhere have recognized that, given the valuable role played by the First Amendment right to speak anonymously in encouraging ordinary people to express themselves fully, it is necessary to balance that right against a plaintiff’s right to seek redress for wrongful speech by adopting a standard requiring a plaintiff to do more than articulate a good faith belief that the speech “maybe tortious.” Before stripping the defendant of a First Amendment right, these courts take an early look at the merits of the plaintiff’s claim to determine whether a valid claim has been alleged and whether there is a prima facie evidentiary basis for that claim. In this appeal, Yelp urges Virginia to adopt the same approach, and to remand this case to give Hadeed an opportunity to pursue its subpoena by meeting the proper standard.

In the meantime, though, we have yet another case of a company suing over Yelp reviews -- which just makes me wonder how they ever expect to get more customers. Any company that sues over online reviews someone makes is clearly a company not worth doing business with, since they might, potentially, sue you over any bad review you write online about them.

Filed Under: anonymity, carpet cleaning, defamation, dendrite, disclosure, privacy, reviews
Companies: hadeed carpet cleaning, yelp

Contractors Lining Up Against Free Speech

from the tragic dept

I've recently been dealing with some building contractors over some work, and the process is no fun at all. Finding someone you can trust is a pretty harrowing experience, because if you pick wrong, the consequences can be huge. Online review sites, like Yelp, have actually been tremendously helpful, even if you know to take reviews with a grain of salt (in both directions). At the very least, they provide some good fodder for understanding strengths and weaknesses. Recently, we wrote about a case in Virginia, in which a contractor named Christopher Dietz took a woman, Jane Perez, to court for $750,000 because she wrote negative reviews about him on Yelp and Angie's List. A lower court had initially told Perez to change her reviews, but the Virginia Supreme Court overturned that, saying that it could not require changes under the 1st Amendment until a full hearing was held on whether or not the content was defamatory.

It's worth noting that Perez only posted her negative reviews after Dietz had already sued her in small claims court, a case that was dismissed (some of the defamation claim concerns Dietz disagreeing with how Perez described the end result of that court case in her reviews). Dietz has also suggested during a video interview on MSNBC that he wanted to go after both Yelp and Angie's List, and that they shouldn't hide behind Section 230 of the CDA. At this point, it would appear that Dietz either does not understand or underestimates the power of the Streisand Effect as well as the importance of free speech and the importance of secondary liability protection for service providers. It's a trifecta!

Perez has pro bono legal help from Public Citizen and the ACLU, but there are still substantial legal costs that she needs to cover. To help pay for it, she's put up an IndieGoGo campaign in which she notes that some comments on a popular site for home builders suggest that an association for home builders may be backing Dietz's lawsuit. The site in question does have a running update on the case, which includes one post where a spokesperson for the National Association of the Remodeling Industry claims that they "support [Chris Dietz] in the quest to right this wrong" and that the organization is "reviewing the case and will determine next steps." It's not clear if this means that NARI is actually financially supporting Dietz's lawsuit, but either way, "supporting" Dietz's misguided lawsuit still doesn't seem like a particularly smart stance, for reasons we'll get to below. NARI could do a lot more good for contractors by teaching them how to properly deal with negative reviews.

That same page includes a couple different reports from other contractors, insisting that contractors need to support Dietz and stop this scourge of people saying bad stuff about them. There's one post that insists the lawsuit is a good thing, saying it will take a "perfect storm" to lose (unlikely), while also mocking review sites claiming most of his customers have never heard of them. Then there's another one that mocks both review sites and the ACLU for daring to think that this was an important case.

I can certainly understand why contractors are upset about negative reviews -- just as lots of other businesses are worried about negative reviews. It's no secret that not all reviews are accurate, and it really does suck, emotionally, to see a negative review that's not true. But there are ways to deal with negative reviews that don't make the situation worse. Jumping straight to defamation lawsuits generally are the opposite of that. They do make the situation worse. SearchEngineLand has a great post in response to this very case, in which they point out that there are much better ways to deal with negative reviews online. Suing only creates news about those negative reviews -- and having it become widely public news that you sued a customer about their negative review seems likely to have a lot more damaging impact on a business than those negative reviews might have had in the first place.

Yes, we live in a legalistic society, where it is the first response of many people to "go legal" when they feel wronged, but in a world where information is widely available, there are often much better ways to respond to "negative" information than going legal. If these contractors really wanted to "support" Dietz, they should encourage more of their colleagues to read the SearchEngineLand article, rather than supporting a dangerous lawsuit that could undermine key principles of free speech or secondary liability.

Filed Under: christopher dietz, contractors, defamation, free speech, jane perez, liability, section 230
Companies: angie's list, yelp

Virginia Supreme Court Says Court Was Wrong To Force Woman To Change Yelp Review

from the good-move dept

We've seen a bunch of stories over the years about local businesses upset about critical online reviews on sites like Yelp and Angie's List. Sometimes these business owners go to court, but rarely get very far. However, in a hearing last month, a court in Virginia issued a preliminary injunction, telling Jane Perez that she needed to make two changes to reviews she posted on those two sites of DC contractor Christopher Dietz. Dietz had sued Perez for $750,000 over the negative reviews, and arguing that Yelp and Angie's List should be held responsible as well, despite their clear protections under Section 230.

The preliminary injunction made her change some claims about possible "stolen" jewelry as well as her characterization of a small claims lawsuit that Dietz had filed against her for non-payment (that case was dismissed due to procedural failures, though she described it as a win for her on summary judgment), but did allow the rest of the posts to remain. This was a partial victory for Perez, since Dietz wanted the entire posts removed, but it still raised some significant questions. Public Citizen and the ACLU asked the court to review, noting that this was classic prior restraint:

Thus, even in jurisdictions that allow an injunction against the repetition of a libel that has been found false and defamatory after a full trial, or in which that issue remains open, injunctions may not issue against speech that has not been finally determined to be false and defamatory. For this reason, courts have rejected attempts to obtain preliminary injunctive relief against Internet speech.

Basically, a court cannot issue an injunction on speech that might be defamatory. It needs to wait until it's actually been proven to be defamatory. As the filing notes, in this case, the court didn't even find that Dietz had shown a "likelihood of success" let alone determined that the statements were defamatory.

Thankfully, the Virginia Supreme Court quickly recognized the error and has vacated the injunction allowing the original text to stay in place while any lawsuit continues:

Upon further consideration whereof, the Court also finds that the preliminary injunction was not justified and that the respondents have an adequate remedy at law.

Good news for free speech, though it's unfortunate that the lower court didn't get it right the first time. Of course, as always, this kind of thing makes you wonder what good it could have possibly done Dietz to file this lawsuit. Whether or not the original allegations were true, now he's made it clear that he's willing to sue over reviews as well. It seems like most people might see that and decide to hire a contractor who not only has good reviews, but doesn't have a history of suing his customers over their online reviews.

Filed Under: christopher dietz, defamation, free speech, jane perez, preliminary injunction, reviews, viriginia
Companies: angie's list, yelp

Yelp Takes Down Review That Sparked Legal Threat

from the weak-sauce dept

Yesterday we had the story of how an 18-month-old Yelp review for Casey Movers in Massachusetts spurred the company to send a legal threat to the author, Kristen Buckley, leading her husband, Phil Buckley to do some research and uncover questionable "positive" reviews of the company, and to call the company out for its legal threat. That story has been getting a lot of attention from a variety of sources, and some have noticed that the original review is gone. Yes, gone. If you go there, you can now see Kristen's followup comment about the legal threat, and Casey Movers' response to the original review -- but not the original review itself.

So what happened? Apparently Yelp took the review down because it violated their policy "because it lacks firsthand experience." The issue is that Kristen admits that the movers were hired by her parents, and the review was on their behalf. Peter notes that Kristen was present when the events happened, so the "lacks firsthand experience" is pretty questionable. That said, the removal seems odd no matter what. The review was up for 18 months and Yelp just took an interest in taking it down in the days after the legal threat went out?

It seems unfortunate in timing -- especially since the reasons for the disappearance of the review are not made public (they were sent via email to Kristen). Anyone reading about this story elsewhere and going to Yelp to see the review are likely to now believe that the original review was taken down due to Casey Movers' complaints about the accuracy of the review, when that doesn't appear to be the case.

Filed Under: policy violation, streisand effect, takedown
Companies: casey movers, yelp

Latest Company To Discover The Streisand Effect: Casey Movers

from the how-not-to-internet dept

Earlier this year, I was at a conference where there was an entire presentation on The Streisand Effect. Considering I first came up with the term and have chronicled it over the years (and had already been asked to speak on a different topic at the conference), I offered to help out with that session -- and got back no response. I went to the session to watch, and it was a really fun session, which didn't need any help from me at all. It was done by Conrad Saam, who works for Urban Spoon (and previously Avvo) and had a ton of great examples of the Streisand Effect and the impact on online reputation management. One element of online reputation management that he'd discussed, which I hadn't paid as much attention to, was the basics on how to deal with online reviews -- with a specific focus on Yelp. There were some dos and donts... and two key things not to do were (1) threaten people who write negative reviews and (2) post fake positive reviews.

Phil Buckley has a story of a Massachusetts-based moving company, called Casey Movers, which appears to have violated both of those rules, starting with a legal threat to Buckley's wife concerning a negative review she had written about Casey Movers 18 months ago, after her parents had a very bad experience with the company. It first took the company over a year to even notice the review and then post a weak defense of its practices. It didn't respond to any of the specific complaints about unprofessional behavior or broken promises. It only focused on the amount that the company had been willing to pay for damages, and gave a somewhat "technical" response about how this was what the "insurance option" she chose provided -- and even could be read as scolding her for not choosing the more expensive insurance option.

And yet... five months later (18 months after the original complaint went up), the same guy who wrote that bizarre defense sends a threat letter saying that the company is prepared to sue for libel if the review isn't removed: Of course, rather than having the intended effect, it just made Buckley furious (and quite reasonably so). Buckley had no interest in removing the review, but rather than just telling Casey Movers to pound sand, he started investigating. He found a variety of other negative reviews... but also a large number of reviews that had significant circumstantial evidence that the company was likely posting fake positive reviews (or had hired a company to do so). It's fun to watch the investigation progress, so it's worth reading the whole thing, but here's a snippet:

Someone decided enough was enough and decided to get some good reviews at CitySearch where they now have a majority of good reviews, except there’s a problem, they’re not real reviews. You may ask how I can say that with so much confidence? Go look at them yourself, one after another… notice how most names are generic or don’t have a human photo? Yes that’s level 1 of suspicious reviews. Start looking at the reviews the “people” have left. It’s quite a coincidence that so many people who have used a Boston moving company have also loved a sprinkler repair guy in Anaheim, California and Fun Hawaii Travel out of Honolulu.

They also have a flurry of activity in August of 2012 – Aug 1, 2, 6, 7, 9, 11, 12, 14. That seems a bit sketchy as well.

His investigation also turned up that the company had been posting images of positive review letters that some customers had signed, but in doing so, revealed all their private info. Buckley contacted a few who seemed surprised and said that they had not provided permission to reveal their private info.

For a while, Casey Movers and the main representative of the company involved in all of this, Matthew Overstreet, basically ignored Buckley. But as his story kept getting more attention, Overstreet finally reached out to Buckley -- and again just kept focusing on the "insurance coverage," a relatively minor issue (made even more minor following the ridiculous threat of a libel lawsuit). Eventually, Overstreet called Buckley on Wednesday night and seemed to indicate that there wasn't any interest in actually suing, though he refused to promise not to sue Buckley's wife.

Either way, the whole story is yet another fun one to include in the long list of companies who get on the wrong side of the Streisand Effect. Going beyond that, it really shows how a bogus legal threat can lead to not just backlash and attention, but also much deeper investigations into whoever originated the threat -- and that might turn up other questionable activity, such as posting likely fake positive reviews to try to counter the real negative reviews. Oops.

Filed Under: fake reviewers, matthew overstreet, phil buckley, reviews, streisand effect, threats
Companies: casey movers, yelp

Best Of The Trademark Bullies: Village Voice Sues Yelp Over 'Best Of' Lists

from the answer:-none dept

The latest in a long series of stupid trademark bullying lawsuits comes to us courtesy of The Village Voice (who should know better than to file bogus lawsuits). The Voice is suing Yelp for trademark infringement. The Village Voice somehow convinced the USPTO that it deserved a trademark on the phrase "best of [place name]" for certain locations -- such as "Best of Seattle" or "Best of San Francisco." Yelp, quite reasonably, also uses the term of "best of" to describe certain places: Village Voice is claiming that Yelp's infringement is "willful" because it notified the company, and Yelp apparently told them to go away. It's also ridiculously claiming that Yelp's usage has "irreparably harmed" the company. I realize that's standard language used in such lawsuits, but seriously?

The EFF points out that the US Patent and Trademark Office is partly to blame for allowing registrations on such trademarks:

What is going on at the Patent and Trademark Office?  For decades, folks have been complaining (with good reason) that the patent examiners need to do a better job of screening out bogus patent applications. It’s clear that the problem extends to the trademark side as well. The PTO has allowed companies and individuals to register marks in any number of obviously generic and/or descriptive terms, such as “urban homestead” (to refer to urban farms), “gaymer” (to refer to gay gamers), and “B-24” (to refer to model B-24 bombers).

Once a mark is registered, it is all too easy for the owner to become a trademark bully. And while companies like Yelp have the resources to fight back (as we expect it will), small companies and individuals may not. Just as dangerous, the trademark owner may go upstream, to intermediaries like Facebook who have little incentive to do anything other than take down an account or site that’s accused of infringement.

Separately, the EFF asks the most important question: who is actually being deceived here? There is no confusion. No one associates "best of" with the Village Voice. Everyone reads it as a perfectly normal descriptive term, rather than a trademark belonging to any single party.

Filed Under: best of, bullies, trademark, trademark bullies
Companies: village voice, yelp