One of the biggest public relations problems for businesses
today is managing their integrity by fending off online defamation. With the expansion of the Internet and the
availability of a host of online reviewing services, blogs and websites devoted
to various businesses, there has been a rapid increase in the consumers’
ability to post comments and reviews online. The vast majority of these reviews are
innocuous, sometimes flattering and usually an accurate description of the work
or service performed. However, with
increasing frequency, some reviews are crossing the line into mean-spirited
attacks. While some of these reviews may
possess a grain of truth, the overall impression from the review is extremely
negative and intended to harm the targeted business. Business that are the subjected to vitriolic
reviews are required to go to great lengths to have the review removed from the
Internet; and often, cannot succeed in their removal.
One of the first cases in the nation concerning business
defamation is currently winding its way through the Virginia courts. In the matter of Dietz Development, LLC v. Perez ( presently pending in the Fairfax
County Circuit Court), the Virginia Supreme Court recently reversed the trial
court’s grant of an injunction requiring Ms. Perez to remove a Yelp and Angie’s
List posting that criticized Dietz Development’s work and claimed that workers
stole items from her home. This
particular case began when Dietz Development sued Ms. Perez claiming that her
posts were false and defamatory.
Assuming that Ms. Perez’s posts are false (truth is an absolute defense
to defamation in Virginia), Dietz Development has been placed in an untenable
position by the Virginia Supreme Court’s ruling. The Virginia Supreme Court held, in part,
that Dietz Development cannot obtain an injunction because there is an adequate
remedy at law; specifically, Dietz Development can sue Ms. Perez for the
damages caused by her false postings. Of
course, this ruling effectively eliminates any remedy that Dietz Development
(and other similarly situated businesses) would have against online
defamers. These individuals making these
online comments are likely to lack the financial resources to pay a significant
defamation judgment and are likely to file bankruptcy in order to avoid paying
the judgment. Moreover, the post itself
is what is causing the damage and will continue to do so even after the
judgment has been entered. These posts
are the worst form of negative advertising as they will exist in perpetuity and
cannot be forcibly removed through an injunction in Virginia.
One unique idea about how to handle these types of
situations, from a legal perspective, is to convert the tort action of defamation
into a breach of contract action. Because
internet speech is protected by 1st Amendment, it is important to convert the
claim to a matter of contractual rights, and out of free speech issues. Moreover, there needs to be an enforcement
mechanism outside of the judicial process that allows a business to compel
removal of the defamatory post.
At Gross & Romanick, we have developed the outlines of a
solution to this problem to protect our business clients from false statements
made by disgruntled customers or former employees. Our solution focuses on converting the issue
from one of tort law (defamation) to one of contract law. We also seek to remove the courts, as a state
agency, from resolving the dispute and attempt to limit the courts to simply
enforcing extra-judicial process.
However, our strategy can only be effective if prepared in advance of
the posting. It is therefore imperative
that any business concerned about online defamation assume that every potential
customer has the potential to post a defamatory comment and act accordingly. Specifically, you should contact an attorney
familiar with the issues and take appropriate steps to protect your company.
The attorneys at Gross & Romanick, P.C. are well versed
in the issues of online defamation. We
have extensive experience handling defamation issues. One of our attorneys holds an advanced degree
in computer science and has been featured on Fox5 News as an expert in the
field. We have an aggressive and
innovative approach to issues that allows us to find solutions where none had
previously existed. If you have concerns
regarding online defamation, please contact our office at (703) 273-1400.
