Reviews as Protected Opinion
A few disclaimers before we crack this off- this is Review Party Dot Com, the website for a comedy podcast about internet reviews. We are not lawyers and are not dispensing legal advice. Additionally, the court ruling that will be referred to shortly is in the state of Illinois; laws and interpretations might differ depending on where you are (like say Thailand).
Now, ON WITH IT! With what? Well-
The Story of David Freydin
David Freydin is an attorney in Chicago, Illinois. If it helps you to envision him as an arrogant doofus, you’re welcome to do so, but note that we are not stating factually that he is. If you haven’t pictured him any sort of way just yet, let his words paint the picture for you.
In late September 2017, Mr. Freydin took to Facebook with a question:
"Did Trump put Ukraine on the travel ban list?! We just cannot find a cleaning lady!"
Facebook being Facebook, this post garnered a fair amount of criticism. Unwavering, our friend Freydin followed up with this post:
My business with Ukrainians will be done when they stop declaring bankruptcies. If this offends your national pride, I suggest you look for underlying causes of why 9 out of 10 cleaning ladies we've had were Ukrainian and 9 out of 10 of my law school professors were not. Until then, if you don't have a recommendation for a cleaning lady, feel free to take your comments somewhere else.
Not a good look. Whether he thought he sounded funny or smart or cool or clear, it’s obvious to everyone reading this right now that this did not put out the fire, but instead caused the flames to jump even higher.
The flames of anger jumped so high, in fact, that they spread to the Facebook page of Mr. Freydin’s law practice, as well as his Google and Yelp reviews. That’s just how the internet works these days, it’s standard operating procedure, and so there are protocols in place to handle review bombing and targeted reviews.
Not satisfied with the Yelp or Google filters, however, Mr. Freydin took it upon himself to be a lawyer and sue, namely for libel and defamation. He had received numerous one star reviews, with and without comments, and claimed the following:
That he was a victim of libel per se
That he was portrayed in a false light
That the reviews interfered with existing contracts
That the reviews interfered with prospective contracts and
That the reviews were resultant of a civil conspiracy
The court’s opinion can be read in its entirety here. It gets a little tangled with the legalese, but here’s what you need to know: everything was dismissed for failure to state (or prove?) a claim.
Here’s not what you need to know, but what you might want to know.
Libel is defamation, but not all defamation is libel. To be libel essentially a lie has to be passed off as a fact, this “fact” has to be shared with a third party and has to relate to someone committing a crime, having a communicable disease, an inability to perform their job, adultery, or that they lack an ability in their profession.
So these reviews ARE defamatory, however, the court writes:
A statement may be defamatory per se and still not be actionable if an affirmative defense applies. Illinois law has four affirmative defenses, one of which is relevant here: the expression of an opinion.
These reviews qualify as opinion, because they don’t purport to tell facts. Here’s another relevant portion of the court’s opinion (bolding is mine):
…none of the statements can be objectively verified as true or false. How could a third-party observer gauge whether the commentator received awful customer service, for instance, by just reading a one-star review that says "Terrible experience. Awful customer service"? What objective indicator defines whether a given customer service experience was good or bad? Or whether a service or good was worth the money?
…
More fundamental, we must consider the particular social context of these online reviews and what it may signal about their contents. The defendants posted their reviews on Freydin's Law Office's Facebook, Yelp, and Google pages, which invite unfiltered comments. We trust that readers of online reviews are skeptical about what they read, both positive and negative. But it is enough in this case that these short reviews did not purport to provide any factual foundation and were clearly meant to express the opinions of the defendants in response to Freydin's insults to Ukrainians generally.
If you can work your way through the legalese, the full court opinion is actually a fascinating read. You’ll see all the angles Freydin and co. tried to play. For instance, they claimed that reviewers who’d said “horrible service” but who’d never actually received service, were making false statements, or (in essence) cherrypicking words and phrases to prove a statement of fact. The court disagreed.
One tactic was even to “contend that a one-star review is, by itself, defamatory.” The court argued
…there is no measuring tool to gauge the reliability of a one-star rating or a five-star rating. As we understand Illinois law on expressions of opinion, an unexplained one-star review simply could not be actionable as defamatory.
So there you have it! Whether it’s right or not to one star bomb the DQ just because your ex-BFF works there, it IS your right. And you can say a whole lot of stuff them, as long as it’s opinion-based and not lies purported to be facts.
Either way, it’s dangerous out there, kiddies. Be careful, read the rules, and try to get along, eh?
