Legalese — Defamation of Character

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Lori Duff

When people put negative reviews on Google or Yelp or other internet review services, or even go on Facebook rants about people or businesses, is that defamation?  What is defamation?  Can you get sued for publishing your negative opinion about a business or a person?  Bear in mind that ‘publishing,’ in the legal world, simply means ‘making public.’

Generally, you can’t. “Words that are mere name calling or found to be rhetorical hyperbole or employed only in a loose, figurative sense have been deemed nonactionable.”  Pease v. Int’l Union of Operating Engineers Local 150, et al, 208 Ill.App.3d 863 (1991). You are allowed to have an opinion. You are allowed to think someone is a jerk, think the food in a restaurant is bad, think the customer service agent is rude, the hotel room unclean, or anything that is subjective.

Where you can get in trouble is when facts are involved. Verifiable, provable facts are the problem. If you claim that you called ten times and no one called you back, when in fact you called twice, and someone did call you back, only your voice mail was full, that’s a lie, and that’s a problem. The First Amendment protects your ability to speak – it doesn’t protect your ability to lie. You can express whatever opinion you happen to have; you can’t lie about other people or their businesses. “If it is plain that the speaker is expressing a subjective view, an interpretation, a theory, conjecture or surmise, rather than claiming to be in possession of objectively verifiable facts, the statement is not actionable.”

I’ll give you an example that happened to me in real life once, with some of the details changed to protect the identity of the parties involved. I do a lot of things that involve public opinion. I did one particular thing that made a lot of people mad.  (Ok, I’ve done a lot of things that made a lot of people mad, but I’m only talking about one particular thing.)  One man, the opposing party in a divorce case, took it upon himself to call me a number of unkind names on social media. I didn’t say or do anything, because he was absolutely entitled to hold whatever unkind opinion he had about me and tell that opinion to whomever he wanted. It didn’t make me happy, but it was his right.

Then he took it a step further. He started telling people that I had said something ugly about him that I had not said. Not only that, but he said that I said the ugly thing at a place I had never been, so it was verifiably untrue. It was at that point that what he was saying shifted from his opinion to him spreading lies about me that damaged my professional reputation. I sent word through his attorney that he could hold whatever opinion he wanted but he was to cease and desist lying about me or face legal consequences. The lies immediately stopped, thank goodness, and I didn’t have to take it further.

So, the rule of thumb about avoiding a defamation lawsuit is much like the rest of everything in life.  Stick to the truth and you don’t have to worry about what you say. And, if you don’t have something nice to say, don’t say anything at all.

Nothing in this article should be construed as legal advice.  It is being offered for informational purposes only.

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