Angie’s List, Yellowpages.com, and numerous other websites encourage customers to post reviews of the products and services they purchase. But, can a reviewing customer go too far? A San Francisco Superior Court is likely to rule on this very issue.
William Gwire, an attorney, claims that Elliot Blumberg defamed him with posts on complaintsboard.com (the actual post has been removed, but here are two other posts relating to Gwire). Blumberg’s post contained accusations of Gwire being a "horrific fraud" which Gwire claims ruined his life. Gwire has alleged six causes of action – most notable of these being defamation.
San Francisco Superior Court Judge James McBride stated earlier this week that while Blumberg does have a right to express his negative feelings and opinions, he may have gone too far by accusing Gwire of committing a specific crime. First Amendment attorney Mark Goldowitz, of the anti-SLAPP Project, echoed McBride’s sentiments, saying that if calling someone a “horrific fraud” is seen as an accusation of a specific crime, then it would not be protected by the first amendment.
In determining this case, Judge McBride will have to determine whether or not Blumberg’s “horrific fraud” statement is fact or opinion (only factual statements qualify for defamation). Courts look at whether a reasonable reader could understand the statement as asserting a statement of verifiable fact—accusing someone of a crime is a fact.
"We've had a whole argument and you've won a lot," McBride told Skaggs, Blumberg’s attorney, after 20 minutes of discussion, "but I can't get past the 'horrific fraud.'"
It appears that this case could go either way. In fact, Goldowitz believes it will eventually be heard by the California Supreme Court. Gwire’s suit appears to be the first of its kind in the United States, but in July a Taiwanese blogger was arrested for writing a bad review of a restaurant (Liu, the blogger, wrote that the food was “too salty”). The Taiwanese judge ordered that the blogger be put in detention for 30 days, given a two year suspension from the restaurant, and forced to pay damages of NT$200,000 to the restaurant. Taiwanese defamation law is less strict than United States’ defamation law, but a ruling against Blumberg would not go completely without precedent.
The court’s opinion will no doubt affect the growing industry of review-oriented websites. Also, individual bloggers will now have to watch their backs in order to avoid costly lawsuits. One possible consequence of defamation suits like Gwire’s is an increase in defamation insurance. Anticipating such defamation suits, several insurance companies now offer “media liability insurance policies designed to cover online libel claims.” These companies may see an increase in business depending on the outcome of this case. However, the minimum annual premium for this coverage is generally $2,500 for a $1,000,000 limit, plus a deductible. It will be interesting to see how much impact Gwire’s lawsuit has not only on the number of bloggers and review-oriented websites, but on the content of the blogs and what the companies allow individuals to write.
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