Last year, a local family contacted me about a demand letter they received from a nearby business. That business had served them poorly, and they said so in a review they posted on Yelp!, the popular social media review site. As more and more companies are doing, this business responded not by improving their services or apologizing for the poor performance, but instead by hiring a lawyer to write a demand letter. This letter threatened to sue the family for defamation unless they removed the post.
The word "bully" is thrown around a lot these days, but this business certainly qualified as one. This wasn't a case of a company enforcing its legitimate rights. Instead, it was using the power of the legal system to intimidate someone out of exercising their First Amendment right of free speech.
A lot of people in this situation would give in to the demand and remove the post. After all, they have no personal or monetary stake in it; they were just sharing their opinion. Of course, the bullies know this. That's exactly why they send such letters.
Still, this sort of behavior is wrong, and it won't stop unless enough people stand up to it. That's why the family contacted me.
Because I've represented media companies in Michigan and federal courts for almost 15 years--and speak and write frequently on digital media issues--I have easy access to the relevant legal precedents. for a nominal fee, I was able to draft a detailed and lengthy response letter pointing out the flaws in the business's argument. Here, those flaws included:
- Failure to specify the exact words that were defamatory. It's not enough to say "his post was false." Time and again, the courts in Michigan (and elsewhere) have reiterated “that claims of libel must be pleaded with specificity.” Of course, the business couldn't do so here, because nothing the family said was actually false.
- The statements were substantially true. In a federal case where I helped defend a popular filmmaker from defamation and related claims, the court reiterated that "Truth is an absolute defense to an action for defamation, regardless of the speaker’s motivation." Moreover, courts will not get involved in determining whether every word was technically accurate. Rather, "if the gist, the sting, of the [statement] is substantially true, the defendant is not liable.”
- Opinion and hyperbole are privileged. An expression of personal opinion, rather than fact, is always privileged. That remains true even if that opinion speech is exaggerated, or "rhetorical hyperbole." This principle remains alive and well in the age of social media. As I've blogged about before, the Illinois Court of Appeals held in a 2013 case that, "viewed in the context of the entire posting, Diana Z.’s statement [on Yelp.com] that ‘[her landlord’s statement] is a TOTAL lie!!!’ represents her opinion, not a statement of fact. Similarly, Diana’s comments regarding the allegedly illegal charging of late fees are more in the nature of conclusory speculation than factual statements.”
These are not controversial propositions of law. To the contrary, they are so well-established and obvious to anyone who stayed half-awake through law school that there's a good argument that the business and its lawyers would have been sanctioned if they'd actually filed the complaint. As in other states, Michigan law provides for such sanctions when a complaint is "frivolous."
Tellingly, we never heard another word back from this business after they received my response letter. The one-year statute of limitations on the claim has now passed. And this is not the first time I've seen this same law firm do the same thing--i.e., send a letter threatening a defamation letter, then doing nothing when their threats didn't work.
In keeping with any legal ethics rules that may apply, I need to say that this was one case, and is not a guarantee of future results. In other words, the next time I send a letter like this, the bullies may actually file suit instead of going away.
But if they do--and the facts are just as one-sided as they were in this case--then I look forward to making an example out of them.
