Could I still be sued for slander?

[JoeSwanson]

What is the name of your state (only U.S. law)? Kentucky

Hey everyone, I'm glad I found this website, I'm in a bit of a bind right now and any advice would be invaluable. Well, I guess that could go for all of us, haha. Anyhow, here is my situation, anyone care to take a shot?

Essentially, I wrote a generally negative review about a business on a website. (The particular website is the kind where businesses have listings that tell a little bit about the business and how to contact them, and also have a small section for reviews that consumers can contribute to.) Anyways, some of the stuff that I said about the business was to my knowledge, true at the time. However approximately two days later I recieved a letter in the mail from the business that effectively invalidated some of the claims that I had made in my review. Well, anyhow the owner of the business saw the remarks that I had written, and just today I recieved a letter informing me that what I had written was slander and that If I write anything else he will seek legal action. Now, I am not in any danger of litigation at the moment, but what I am curious about is this. What I wrote was true at the time to the extent of my knowledge, however the letter that the business owner sent me invalidating my earlier claims was also written on the same day. However since the letter was mailed, I did not actually recieve the letter until two days later. Suppose that this guy tries to take me to court regarding this particular incident, could he still make a case? Or would the ruling go in my favor?

Thanks for any advice

 

[mmmagique]

I wouldn't worry about it; it sounds like you are covered.

Plus, it's very expensive to take someone to court for libel/slander, and difficult to prove. (especially given the facts you provided)
Sounds like he is trying to cover his behind...

~Christina

 

[quincy]

He could still sue you, depending on what you wrote and how badly your false comments about his business affected him or his business reputation.

If you have the opportunity to delete what you wrote, I would do that or, if you cannot delete it, I would retract the statements made, stating that you were in error. A retraction works to mitigate damages in the event of a lawsuit although, since the letter you received said not to write anything further, this latter suggestion could also spawn a lawsuit, so the deletion might be best.

In a libel suit, the business does not have to prove that what you wrote is false (libel is the written form of defamation, slander is the spoken form). It is up to you to prove what you wrote was true, or true to the best of your knowledge.

The business, in other words, could still potentially sue and win a libel suit against you, but defamation actions are extremely expensive and often not worth the time, effort and money that it takes to pursue one in court. The odds are good that the business will not bring suit against you unless they can sufficiently demonstrate their reputation was severely injured by your comments and the damages are worth suing over.

There is no way to tell for sure if a ruling would go in your favor should the business sue. It really depends on all of the facts of the situation.

 

[JoeSwanson]

Ok, thanks for the replies. I really appreciate it. There is one thing that I don't fully understand though, IF a business is advertising in an open forum, and you are able to post a review, isn't there a certain degree of immunity towards legal action towards whatever is written? My main complaints regarding the business have to do with the service aspect of the business. (Its a modeling agency, and the person mainly providing the services is the owner, Mr.X. Basically the way that he conducts business is extremely deplorable.) Quincy, you said that in court, the business does not have to prove that what was said was false, rather the burden of proof lies upon the author of the possibly libelous content. However, how can I prove that Mr.X is essentially a rude and unprofessional person? I fear that the trial would degenerate into a juvenile he said, she said type of affair. I mean, its very difficult to prove that sort of thing.

*Regarding the libelous review in question, part of what I had written was stating how Mr.X had failed to provide the service I had paid for, the other part essentially detailed his professionalism (or lack of it), and his general way of going about business. The part regarding where Mr.X had failed to provide the service was what was invalidated by the letter that I recieved a few days after initially writing the review. This particular question above addresses the latter half of the review. Just a little bit of clarification

 

[quincy]

A lot of people mistakenly believe that they can write whatever they want on a forum or in a review or on a blog, and that just isn't true. There is no immunity. There are, and have always been, limits to free speech.

Certainly you are free to write the truth, and you are free to write about your own personal experiences, and you can express these opinions freely. But opinions cannot imply false and defamatory facts, and your personal experiences cannot expand to include generalizations that are defamatory.

For instance, I can say, without fear of losing a lawsuit, that the service I personally received from Mr. X was horrible - and then describe why it was horrible, down to the very pickiest detail. I cannot say, however, that Mr. X provides bad service - that is a generalization that may not apply to the service others receive from Mr. X, and to say it may affect his business by driving customers away.

As for proving the truth of your statements, you can either prove the statements are true (with documentation or witnesses) or prove they are truly opinion. You don't have to prove the truth of what you say if all that you write is based on your own personal experience. If you say Mr. X is a thief, however, you better have some sort of evidence to prove it, such as a police report.

What Mr. X has to show is that what you wrote was defamatory, that what you wrote sufficiently identified him or his business, that what you wrote injured his or his business reputation in a demonstrable way (loss of income or customers or sales, etc) and that you were the one who wrote the defamatory statements without the due care that a reasonable person would have taken prior to publishing (ie. not publishing something false without a reasonable belief that what you wrote was true). Showing you had a reasonable belief in the truth of a statement when you made it is not easy to prove, by the way.

Your problems will come from, one, your comments about the "general way" Mr. X has of going about business (unless you can prove this is the general way that he has of going about business - evidence to this effect, witness testimony, etc), and, two, your comments about Mr. X's lack of professionalism, if these comments went beyond your personal knowledge and experience.

As for proving that Mr. X is "essentially a rude and unprofessional person," I am betting you CAN'T prove that. It is, more than likely, not a true statement. He may have been rude and unprofessional in his dealings with YOU, but you have no knowledge of or evidence to support that he is this way with all people he deals with. THAT is the problem.

If you are worried about Mr. X suing you, take what you wrote to an attorney in your area to review it word-for-word. It could be that you expressed only opinion without implying false fact, or you worded your review in a way that is not actionably libelous. But it would take a review of your review to tell you for sure.

I said earlier that defamation actions are expensive, and they are. Most people will not pursue one unless they are reasonably assured that they can win more than they have to invest. There is always the risk of losing in any lawsuit and most people will not gamble with multi-thousands of dollars.

In other words, I doubt if this business will sue you over one bad review. It is possible. But it is unlikely. Definitely consult with a defamation lawyer, however, if you ARE sued. You will need an expert to help with your defense.

 

[Roo]

Would Mr. X have to prove actual damages to win?

 

[quincy]

Not necessarily, Roo. It depends on all of the facts.

In some states, with some defamatory statements, no damages need to be proved because they are assumed. This would occur in states that recognize defamation per se and defamation per quod. In those cases, the statements alone are proof of injury, and damages can be awarded with no other proof needed. Falsely saying someone is a rapist, for instance, would be defamation per se, and the person falsely accused could be compensated only with proof that the statement was made about him to others. Reputational injury, in this case, is presumed.

There are generally three different types of damages that can be awarded in a defamation action in most states. One is compensatory or general damages for the injury to the reputation itself. Because reputations have no set value or price tag on them, a person defamed will value his reputation at a price far greater than is likely to be awarded. Juries can award HUGE sums to compensate for an injured reputation, like $5 million or $10 million (although the largest awards are generally reduced later by trial judges or an appeals court).

Then there is the actual pecuniary loss which does need to be proved. These damages are awarded based on the actual monetary losses that are demonstrated, either directly or indirectly, to have resulted from the statements made. If a business lost a customer who had intended to pay $500 for an item then backed out of buying it because of the statement made, the loss to the business is $500 and the business would be entitled to recovery of that loss. If a person gets fired from a job because of the statement made, the loss is equal to the lost wages he would have realized had he not been fired.

And then courts can award punitive damages, to punish the person who maliciously libels another. However, some states now no longer allow punitive damages.

A business would generally need to prove it suffered a monetary loss, although, again, it would depend on what was said about it. In a situation where a restaurant is falsely accused of serving food with a body part in it, for instance, that presumes injury to the restaurant in almost all cases.

So with defamation cases, as with pretty much any lawsuit of any kind, it really depends on all of the facts on both sides, how these facts are presented, and even on the type of judge or jury these facts are presented to. Rarely can anyone say with certainty what the outcome of a lawsuit will be.

 

[Roo]

Thank you.

 

[quincy]

You're welcome.

 

[JoeSwanson]

Ok, I understand completely now, thanks for your advice quincy. This whole situation has really been a drag, but I can honestly say it has sparked in me a genuine interest in studying law

 

[quincy]

Oh, good! The world needs more lawyers.