2H 2016 Quick Links, Part 7 (Consumer Reviews & Defamation)

Consumer Reviews

* Eugene Volokh and Paul Levy: Dozens of suspicious court cases, with missing defendants, aim at getting web pages taken down or deindexed. See also Ross Todd, Attorneys Accused of Filing Bogus Suits in Alleged Scheme to Stamp Out Negative Web Reviews

* Consumer Opinion LLC v. Frankfort News Corp, 2016 WL 6393520 (N.D. Cal. Oct. 28, 2016). “Plaintiff claims that Defendants provide these services by means of a fraudulent scheme whereby Defendants: (1) create web sites purporting to be legitimate news sites; (2) copy to those fake news sites whatever negative reviews their clients wish removed from the web; (3) back-date the copied reviews to give the appearance that the reviews first appeared on the fake news sites; and (4) demand that Google take down the “later” posted reviews as infringing the fake news sites’ copyrights….Plaintiff’s motion for early discovery is GRANTED. Plaintiff may serve subpoenas on GoDaddy.com, LLC, Wild West Domains, LLC, Enom, Inc., Domains By Proxy, LLC, Webair Internet Development, Inc., and Google, Inc. for the limited purpose of identifying the Doe Defendants and Roe Corporation Defendants in this case.”

Followed by Consumer Opinion LLC v. Frankfort News Corp, 2016 WL 6804607 (N.D. Cal. Nov. 17, 2016):

(1) The TRO application is GRANTED as follows: Defendants, their officers, agents, servants, employees, and attorneys and all those in active concert or participation with them are ENJOINED from transferring the domain names referred to herein as the reputation management domain names (, , , < gainpr.com>, and ) from their current registrars to other registrars, and are ENJOINED from deleting material from those websites.

* Casper Sleep, Inc. v. Hales, 2016 WL 6561386 (SDNY Oct. 20, 2016)

Casper insists that the reviews do not really reflect Hales’s opinion; rather, they reflect the fact that some mattress companies give Hales a kickback if he gets them a sale via the hyperlink on his website (the ones that get good reviews) while others (the ones that get bad reviews) do not. But there is no exception to the “statements of opinion are not actionable” rule for statements of opinion that are influenced by factors such as a financial relationship. Hales’s opinion may well be that people who pay him make superior mattresses, but that does not change the reviews, for Lanham Act purposes, from statements of opinion into statements of objectively verifiable fact.

On their face, the reviews offer to readers Hales’s opinions about the qualities of various mattresses. The financial relationship between Hales and his affiliates is disclosed. Both on his web page and on his disclosure page, he says that he gets paid whenever a reader clicks on a manufacturer’s hyperlink and buys a mattress from that affiliate. There are direct links to the websites of all of the mattresses he praises. There is no direct link to Casper’s website. Casper essentially asserts that Hales ought to confess that he is influenced by his affiliations, but as long as the consumer is told about the affiliation and the financial reward that comes to Hales when a reader makes a purchase after clicking Hales’s affiliate link, s/he is free to factor that into his/her evaluation of the value of Hales’s reviews. The Lanham Act is not violated simply because Plaintiff does not utter this confession (which, by the way, may or may not be true).

The fact that some reviews are structured as comparisons, or that some reviews contain facts, does not automatically make either type of statement actionable….

* Rebecca: Advertiser’s self-voting on positive reviews as “helpful” may be false advertising

* Ars Technica: Amazon bans reviews based on free or discounted products

* Cracked: I Get Paid To Write Fake Reviews For Amazon

* Mercury News: Moviegoers to Hollywood: It better be good: “Dismal reviews and disappointed fans often have — though not always — meant trouble at the box office. But social media has made those reactions swifter, cutting into even opening weekend grosses.”

* Ars Technica: Lawyer sues 20-year-old student who gave a bad Yelp review, loses badly

* Paul Levy: SEO Firm Devises New Way to Impose Nondisparagement Clause on Dissatisfied Customers

* Angie’s List has removed the paywall controlling access to its user reviews and rankings.

* Do you think online reviewers are out of control? You might enjoy J. Cyrus’ song “YELP THIS”

Defamation

* Roberts v. Mintz, 2016 WL 3981128 (N.J. App. Div. July 26, 2016):

defendant made these statements under the heading, “Rants and Raves,” signaling to any reader that what followed were the author’s personal viewpoints. See Summit Bank v. Rogers, 142 Cal.Rptr.3d 40, 60 (Ct.App.2012) (fact that statements appeared in section of website entitled “Rants and Raves” indicated a reader would “view them with a certain amount of skepticism” and understand that “they will likely present one-sided viewpoints rather than assertions of provable facts”). That impression is reinforced by the fact that few of the blog posts included in this record are factual in nature. Given the profanity-laden, emotionally-charged context in which defendant used “grifters,” “scammed,” and “fraudulent puppy mill,” a reader would not reasonably understand defendant as charging plaintiffs with a crime or fraud. Instead, a reasonable reader would interpret these statements as name-calling and hyperbole

* Funk v. Lincoln-Lancaster County Crime Stoppers, Inc., 294 Neb. 715 (Neb. Sup. Ct. Sept. 9, 2016):

The City next assigns that the district court erred in finding that the Facebook post was defamatory, because the person depicted in the photograph on the post is unidentifiable. The district court found that the Facebook post was defamatory and “embarked upon by the City alone,” and the court used the Facebook post as a justification for awarding Funk additional damages beyond those awarded by the jury in the trial against Crime Stoppers.

Although the Facebook photograph depicts only Funk’s torso, the page links viewers to the post on the Crime Stoppers Web site, where the full image can be seen. The City admits that the post on the Crime Stoppers Web site is defamatory. It is self-evident that regardless of whether the Facebook post is defamatory, the posting of the link on Facebook increased the readership of the post on the Crime Stoppers Web site and likewise the harm to Funk’s reputation. Therefore, we conclude that the district court properly considered the Facebook post in awarding damages, and we need not determine whether the post by itself was defamatory.

* Payne v. WS Services, LLC, 2016 WL 3926486 (W.D. Ok. July 18, 2018) (cites/footnotes omitted):

Ms. Payne posted on her Facebook page that “they don’t hire woman [sic]” and that “male-womanizing people” run the company. Accusations of being a womanizer are akin to calling someone a racist or bigot, the Paynes argue, and are therefore amount to inactionable name calling.

The undersigned disagrees. Examining Ms. Payne’s statements in context – the Facebook posts in which they appeared2 – the statements go beyond mere name calling. In her posts, Ms. Payne makes repeated statements that the company does not hire women. As was the case in Overhill, a reasonable reader of these statements, in context, would understand them to mean that WS engages in discriminatory, gender-based hiring practices. Whether WS engages in discriminatory employment practices is verifiable, and in fact, one of the issues in the Paynes’ complaint.

Even if Ms. Payne’s statements were construed as opinion, they are actionable because they create the reasonable inference that undisclosed defamatory facts (regarding WS’s discriminatory hiring practices) exist. Ms. Payne argues that she did disclose the basis of her statements – that she was not hired based on her gender. However, as noted above, this is a question that is disputed and at issue in this case. Thus, at this stage, the Court cannot say that her opinions are inactionable on this basis.

Finally, the Paynes argue that Ms. Payne’s statements are opinion because she clearly made them in the midst of a personal disagreement with WS and her statements were in the category of statements that were “plainly ‘pointed, exaggerated and heavily laden with emotional rhetoric and moral outrage.’ ” In Magnusson, the phrases “botched surgeries” and “devastating scars” in a consumer investigation broadcast fit that category. The use of these judgmental terms by dissatisfied patients, the Oklahoma Supreme Court determined, put listeners of the broadcast on notice to expect speculation and personal judgment. Id. Therefore, the statements were not actionable. Id. Here, however, Ms. Payne does not use general judgmental terms to describe her dissatisfaction with the company; rather she levels specific accusations of gender-motivated hiring practices. Further Ms. Payne asserted that her information was drawn on personal knowledge, information obtained through her husband, (an employee of the company) and surreptitiously recorded statements. Id. Ms. Payne’s statements and assertions, taken together, do not put a reasonable reader on notice to take her statements as mere judgmental opinion.

* Hosszu v. Barrett, 2016 WL 4259799 (D. Ariz. Aug. 12, 2016) (cites/footnotes omitted):

Additionally, “the general context in which the statements were made negates the impression that they imply a false assertion of fact.” First, SWM’s version of the May 20th article clearly designated the content as “commentary” in three separate places: (1) at the beginning of the article after the title, (2) at end of the article, where SWM included a link to a press conference where Hosszu denied the “commentary,” and (3) at the end of the text in an italicized notice to the reader that the “commentary” contained opinion of the author and not SWM. The other version was posted on a blog, a form of media known for containing personal opinion and commentary. Further, the May 20th article employed a highly informal writing style more commonly associated with personal commentary than news reporting.

Nonetheless, this is not a case in which the author was penning satire, attempting to be humorous, or otherwise creating a message that was not meant to be taken seriously. Cf. Knievel, 393 F.3d at 1077-78. Despite the colorful language, Barrett intended his audience to seriously consider the question he was raising – whether Hosszu might be enhancing her performances with drugs.

* Two articles on anti-SLAPP laws from Jeremy Rosen:

– The Hill: SPEAK FREE Act prevents SLAPP in face to free speech

– Law360: California’s Anti-SLAPP Law Is Not Systematically Abused

* “Truck Driver Meets Wife After Dialing Bathroom Number “For a Good Shag.”” Homage to the California defamation law classic Hellar v. Bianco, but with a happier ending.