Consumer Blog Postings -- Defamation? Libel?

In My Humble Opinion
1

This is not a bid for legal advice, per se, but rather a quest for general information.

I’m trying to figure out that fine line between defamation and “fair comment” as the terms would apply to websites and blogs — particularly online venues consumer complaints. As I am located in Ontario, I am mostly interested in Ontario law, but from what I’ve read, the global web has changed this into an issue that crosses borders.

One example would be the U.S.-based site, “Consumerist”: http://consumerist.com/

A quick look at the site just now displays a number of potentially defaming phrases: “New York lawyer Eric spotted a pathetic attempt by a Maryland Converse outlet store to pretend that it was offering a discount on this pair of shoes. One sticker slashes the dubious MSRP by a penny, from $30 to $29.99, but another sticker reveals that the original price was $25.” [My emphasis]

To me, the bolded bits are potentially defamatory.

Added to such postings are generally a number of ranting comments by users — potentially libellous, as well.

Our local (Toronto) newspaper has a pro-consumer columnist that often criticizes business practices, sometimes from large conglomerates (such as Bell, Rogers or national banks), sometimes from smaller companies. The columnist maintains a separate blog along similar lines: http://www.ellenroseman.com/

Again, each posting is generally followed by ranting comments.

How do these bloggers escape the wrath of the company lawyers? Is there a reason they are not continuously sued by the objects of their criticism? I realize that the most effective defense against a libel suit would be due diligence in documenting the events about which these bloggers are writing, but certainly they rely on the undocumented complaints from consumers on a regular basis. And I can’t imagine how one would document the phrase “pathetic attempt”.

I found some information related to the topic, in particular:

Grant v. Torstar
http://www.canlii.org/en/ca/scc/doc/2009/2009scc61/2009scc61.html

I found a brief commentary on the case here:

And here, a woman was sued by a builder for defamation after she posted about “bad safety practices” and environmental issues in her neighbourhood:

http://robshouse.net/page/concerned-mom-gets-sued-mega-developer-writing-about-environmental-abuses

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Does anonymity help? Granted, you can be found eventually unless you are very stealthy, but would companies go to the trouble?

3

In the USA a key to this is opinion. The Supreme Court has ruled opinion is protected. This is why newspapers have Op-Ed, Letters to the Editor and Editorials in clearly defined sections of their newspapers.

This way they protect themselves. If someone calls someone else a jerk, that’s clearly an opinon. This is protected.

If I write, this “so called sale” these terms and quotes clearly indicate I am voicing my own personal displeasure with the company.

I actully had one company contact me and tell me to remove my review in Amazon. I shot back an email and said, “take it up with Amazon.” When I Googled the product I found out why. My negative review was coming up BEFORE the website selling the product on a Google search.

I never heard back and the review is still up.

Why people don’t sue is simple, it’s easier to do something else. Also if you sue and for some reason lose, the publicity could be worse than the offending remark. Even if they win the offending remark will get publicity your company may not want.

Futhermore suing someone may only make the remark more widespread. Let’s say you sue John Doe and are successful. By the time you achieve this 10 other bloggers have already repeated his opinon. Then you’d have to sue them as well.

A much better way to handle it is simply acknowledge the negative comment. THEN you explain WHY it is in error. Then you hire a search engine optimization expert and work to get your rebuttle of the comment higher in a Google search.

4

I was under the impression that opinion is protected and it’s only matters of fact that are cause for defamation or libel.

“Company X is a pack of douchebags” isn’t libelous.
“Company X stole my car” is.

Have I got that wrong?

5

Consumerist did get cease and desist letters from Cash 4 Gold. Which they promptly published to great hilarity.

Seriously, what is that Converse outlet going to do? Is not a penny off (of five bucks more to start with) indeed pathetic?

6

If you qualify your statements so they are an expression of your opinion rather than a statement of fact, you should be ok (no guarantees). But you should look up the meaning of defamation per se which is a special sub-category. Statements which are libelous per se should be avoided.

I think companies tend not to sue because it generates bad publicity. Beyond that, except for libel per se cases, the plaintiff will have to show actual damage which resulted from the libelous comments in order to recover any money damages.

Also, in defamation cases, truth is an affirmative defense. So if you make a libelous comment but can prove it is true, then it isn’t libelous. You still might get sued, but you will be able to win the case.

7

Companies will threaten to sue for defamation, and they have more money than you have, so they can silence critics that way even though they know they have no way of winning in court. Few people have the thousands of dollars to spend defending themselves.

Legally in the US, opinion is protected from libel laws. You have to make an untrue statement of fact, and for a public figure, they need to prove that not only the statement was untrue, but also that you knew it was untrue when you published it.

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On the other hand, even if they do win, the publicity resulting from a court case may be worse than the original defamatory statement. So they’ll want to settle out of court, with the person sued just taking down the statement and/or making a quiet retraction. They certainly don’t want the person sued to attempt to prove the truth of the statement publicly in court, even if that attempt fails.

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I am not sure how much legal protection is found in anonymity. I found a case where criticism of a legal advice website resulted in “anonymous” blog posters have ended up in a lawsuit for defamation. These are lawyers suing lawyers:
http://www.lawtimesnews.com/201005246933/Headline-News/Lawbuzz-suit-ups-ante-names-three-more-lawyers

I agree — it’s totally pathetic. I would imagine Cash 4 Gold decided it wasn’t worth bringing more attention to the issue, but what prompted my question is the possibility that a large company with enough resources at hand might decide that it’s worth a few hours for in-house counsel to draft a statement of claim.

This is what I figure. I think that’s what’s happening in the case where the builder is suing the woman who is ratting them out on their skeezy practices. It sounds like it’s costing her a lot to defend herself.

This is the sort of thing that got me wondering about the issue. I mean, here’s this private citizen who witnessed a builder “doing wrong” and she’s stepped into the fight of her life over it, while I read other people’s blog comments that are blatantly defamatory — Googling “Walmart sucks”, for example, brings up a host of defamatory postings. And yet I have not heard of Walmart, with all it’s legal resources, stomping on Joe Public for such postings. Maybe it’s happened; possibly, I simply haven’t heard about it.

Also agreed. So, using myself as an example, if I were to set up a blog and posted some defamatory rants about a company and then were subsequently served with a suit, the company may hope to settle out of court in order to shut me up, but it’s not like I have a bazillion dollars sitting around with which to “settle out of court”. So by setting up such a web site / blog, I would be putting all my worldly belongings at risk, would I not?

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(bolding mine.) http://consumerist.com/about-us/

Hmmm. Something about First Amendment, fair comment and opinion, etc., seems to work well for them.

Much may be said for consumer reporters on radio and TV. As long as they stick to the facts, it’s quite easy to point out the failures of a company, its products and services. At the same time, if they choose to interview private people, well, it’s their opinion that XYZ company product sucks big time.

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If that’s unclear, they were bought I think more than a year ago by the people who run Consumer Reports.