Courts generally are unwilling to impose civil liability for internet rants and cheeky reviews. Craigslist, Yelp and the like really are the wild west of public forums. Postings can be informative and funny but they also can be obnoxious, cruel, and crude. And it often seems that the most offensive posters are anonymous or pseudonymous. The legal problem arises when the posting is untrue. At that point, courts are sometimes asked to consider whether the poster can be sued for libel or defamation.
The number of appellate level decisions confronting this issue is large and growing. The basic questions are (1) whether what is being posted is fact or opinion, and (2) whether it is untrue. You can be sued for making false factual claims about someone. Courts, however, are more likely to find that particular online exchanges are vehicles for emotional catharsis rather than an effort to exchange factual information. And as such, courts generally decline to impose liability, even though these posts can have dramatic damaging effects, both financially and emotionally.
As example: a post by an angry grandmother that described the child’s father as a criminal and deadbeat dad, possibly taking steriods and accusing him of fraud, deceit and picking up street walkers and homeless drug addicts was not actionable. This was not a post on the grandmother’s Facebook page. It was posted to a community page that sought comments about local businesses, and the target of the grandmother’s wrath ran a local business. Fortunately, for the grandmother, the man was in fact a criminal (had he not been that might have been sufficient to support a claim for defamation) but as for the rest of the diatribe — the court concluded that it was insulting name calling: opinions, not facts. Chaker v. Mateo (2012) 209 Cal.App.4th 1138.
The grandmother identified herself in the post as the child’s grandma, so this was not an anonymous post. But when made anonymously, the courts are seemingly even less likely to hold the poster accountable. The anonymity itself is a “cue to discount” the statements. In Summit Bank v. Rogers (2012) 206 Cal.App.4th 669, a former bank employee posted a number of derogatory comments about the bank over the course of several months. His posts were found to be a mixture of factual but true statements, and opinions that were not actionable. His posts that the “CEO thinks that the Bank is her personal Bank to do with as she pleases” was opinion. Similarly, the court characterized as opinion the poster’s comments that this was a “problem Bank,” mismanaged, that the Bank had left “customers high and dry,” and his advice that customers move their accounts “before it’s too late.”
Frankly, these court cases seem correct. We hardly need more litigation, and scrutinizing internet rants in a courtroom seems like a particularly unproductive use of resources and would be devastating to the internet as public forum.
But the point of my blog contribution here is that one can go too far. On July 30, 2013, a California Court of Appeal allowed a landlord to pursue a claim for defamation against a former tenant. Reserve L.P. v. PapalioliosÂ (A136191). Â Four years after the tenant moved out (now that is a tenant with a serious grudge), the tenant posted his thoughts on Yelp. The tenant posted that the building was owned by a “sociopathic narcissist-who celebrates making the lives of tenants hell. …[T]he owners’ noise, intrusions, and other abhorrent behaviors (likely) contributed to the death of three tenants… They have sought evictions of 6 of [their] long-term tenants, even though rent was paid-in-full and those tenants bothered nobody. And what they did to evict the occupants of unit #902 who put many of tens of thousands of dollars into their unit was horrific and shameful… There is NO RENT that is low enough to make residency here worthwhile. ”
You can probably guess where the tenant gets into trouble. Two of the three dead tenants were in fact alive, the other died of pneumonia and cancer. The court did not agree with the tenant that this was a “slight inaccuracy.” There was also a factual dispute as to the accuracy of the tenant’s claim about the evictions. The appellate court held that the tenant’s motion to dismiss had been properly denied, and that the case can proceed towards trial.
For the internet poster, including any ranters out there, here are some tips: Stay away from making factual allegations that you either know are not true or don’t know whether they are true or not. Don’t think that calling someone a liar is an opinion and therefore fair game. Calling someone a liar implies that he stated an untruth — and that is a factual assertion. If your post is untrue (and known by you to be so) it can give rise to civil liability. And don’t think that hedge words such as “likely” or “allegedly” will protect you. They will not, if in the context of the post, you are otherwise touting personal knowledge of what you are claiming to be “likely” or “allegedly” true.
Other than that have fun, and if you have a gripe, try to be more entertaining than mean.