Is this defamation per se?

[mrsjohnson]

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

I'm co-owner of a small business with my husband and my question is about a negative review on left by a disgruntled former customer. Though I'm not sure what exactly can be considered defamation and there may be something else in his review that is, but I'm pretty certain that making a false statement is. This person made the statement that I "would rather start a smear campaign than refund what he paid thus far." This is a lie; I have documented proof that he was offered a refund on more than one occasion. The problem that he seems to be having with the refund is that there is a condition associated with it; he must return the product first which for whatever reason, he refuses to do. He had a problem with our service related to the product as well. I show that he still owes us $50 for the product purchased; his account was credited for the service performed and we did charge a non-refundable delivery fee. I sent an informal C&D email to him yesterday, to which he replied, "ha ha!" He is located in South Carolina.

There's a lot more to this story and I would be glad to retell it but for simplicity's sake, I'm trying to stick to the facts. I'm aware that anyone can sue for anything and that these cases can be long and espensive. I'm going to attempt to handle it on my own if the attorney's fees are too high which from what I've gathered, can be very high. I just need to make sure that I understand all the rules surrounding defamation and libel. And also that my response to his reviews are also appropriate. I have edited them and can do further editing if advised because I do have a habit of responding emotionally.

Please PM for a link to the reviews.

 

[LdiJ]

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

I'm co-owner of a small business with my husband and my question is about a negative review on left by a disgruntled former customer. Though I'm not sure what exactly can be considered defamation and there may be something else in his review that is, but I'm pretty certain that making a false statement is. This person made the statement that I "would rather start a smear campaign than refund what he paid thus far." This is a lie; I have documented proof that he was offered a refund on more than one occasion. The problem that he seems to be having with the refund is that there is a condition associated with it; he must return the product first which for whatever reason, he refuses to do. He had a problem with our service related to the product as well. I show that he still owes us $50 for the product purchased; his account was credited for the service performed and we did charge a non-refundable delivery fee. I sent an informal C&D email to him yesterday, to which he replied, "ha ha!" He is located in South Carolina.

There's a lot more to this story and I would be glad to retell it but for simplicity's sake, I'm trying to stick to the facts. I'm aware that anyone can sue for anything and that these cases can be long and espensive. I'm going to attempt to handle it on my own if the attorney's fees are too high which from what I've gathered, can be very high. I just need to make sure that I understand all the rules surrounding defamation and libel.

How large is the product? Is it something that he could easily carry to return it to you or is it something that had to be delivered? Was your service faulty?

If you are requiring him to physically return something to you that had to be delivered to him, in order to get a refund, that is little different than refusing a refund altogether.

 

[mrsjohnson]

How large is the product? Is it something that he could easily carry to return it to you or is it something that had to be delivered? Was your service faulty?

The product is a door approximately 45" wide x 96" high so yes, it could be returned easily in my opinion. The service was faulty but not entirely our fault; one of the claims made was the door was made too large for the opening. Indeed if the door were made smaller, then the service would not have been faulty but the customer provided the door measurements to us and we made the door exactly the size that the wanted it made. Ordering doors the wrong size is common with this customer; we were to install other doors the client ordered from another vendor but were unable to do that because the doors ordered were actually too small and would not work. In regards to the faulty service, an apology and offer to fix our mistake was relayed to this customer via text. The customer ignored it.

If you are requiring him to physically return something to you that had to be delivered to him, in order to get a refund, that is little different than refusing a refund altogether.

The product did not have to be delivered to him, he chose to have the product delivered to him. He was aware of the delivery fee. Further, we do take issue with the fact that he was there onsite when we delivered and installed the door and could have rejected the door then but he didn't for reasons unknown. I know if I would have been in his shoes and would have been that unhappy with the product and the installation, I would have rejected it and I certainly would not paid more money towards my balance. If this customer would have asked for a refund on the spot, we would have provided it to him because that is our policy to do so but he did not. We also offered to pick up the door when we were back in the area to save him from having to return it and he ignored our offer. Please tell me what more we could have done to appease this customer?

 

[LdiJ]

The product is a door approximately 45" wide x 96" high so yes, it could be returned easily in my opinion. The service was faulty but not entirely our fault; one of the claims made was the door was made too large for the opening. Indeed if the door were made smaller, then the service would not have been faulty but the customer provided the door measurements to us and we made the door exactly the size that the wanted it made. Ordering doors the wrong size is common with this customer; we were to install other doors the client ordered from another vendor but were unable to do that because the doors ordered were actually too small and would not work. In regards to the faulty service, an apology and offer to fix our mistake was relayed to this customer via text. The customer ignored it.



The product did not have to be delivered to him, he chose to have the product delivered to him. He was aware of the delivery fee. Further, we do take issue with the fact that he was there onsite when we delivered and installed the door and could have rejected the door then but he didn't for reasons unknown. I know if I would have been in his shoes and would have been that unhappy with the product and the installation, I would have rejected it and I certainly would not paid more money towards my balance. If this customer would have asked for a refund on the spot, we would have provided it to him because that is our policy to do so but he did not. We also offered to pick up the door when we were back in the area to save him from having to return it and he ignored our offer. Please tell me what more we could have done to appease this customer?

Ok...do you think that he actually has the door in use even though he is complaining that its too big?

 

[mrsjohnson]

Ok...do you think that he actually has the door in use even though he is complaining that its too big?

I have no idea really. I have a picture of the door in use because that is how we left it and when I posted it on Facebook, a couple of our fans thought it was awesome!

The door actually works and is completely usable. It is a sliding door but because of the door size as well as the track size installed, what happens or aleast what the customer said happened is that these things made the entryway 24" compared to the 32" is should be. The door covers the entrance to a pantry. How large are Oompa Loompa's? Wider than 24"? I ask this only because the customer reminds me of a red, angry Oompa Loompa.

 

[LdiJ]

I have no idea really. I have a picture of the door in use because that is how we left it and when I posted it on Facebook, a couple of our fans thought it was awesome!

The door actually works and is completely usable. It is a sliding door but because of the door size as well as the track size installed, what happens or aleast what the customer said happened is that these things made the entryway 24" compared to the 32" is should be. The door covers the entrance to a pantry. How large are Oompa Loompa's? Wider than 24"? I ask this only because the customer reminds me of a red, angry Oompa Loompa.

Is this a pantry that one walks into, or just shelves? 24 inches is a quite narrow opening for people to walk through. I would not be happy either. So, what you are telling me is that you expect him to uninstall this door and deliver it back to you? Did you go there in person to check out his complaint?

 

[mrsjohnson]

Is this a pantry that one walks into, or just shelves? 24 inches is a quite narrow opening for people to walk through. I would not be happy either. So, what you are telling me is that you expect him to uninstall this door and deliver it back to you?

This is a walk-in pantry. To your first question, yes at this point I am expecting him to uninstall the door and deliver it back and I explained to you why I expect this once before. Please see this:

"Further, we do take issue with the fact that he was there onsite when we delivered and installed the door and could have rejected the door then but he didn't for reasons unknown. I know if I would have been in his shoes and would have been that unhappy with the product and the installation, I would have rejected it and I certainly would not paid more money towards my balance. If this customer would have asked for a refund on the spot, we would have provided it to him because that is our policy to do so but he did not. We also offered to pick up the door when we were back in the area to save him from having to return it and he ignored our offer. Please tell me what more we could have done to appease this customer?"

Did you go there in person to check out his complaint?

Do you mean go back there? We were already there, we're pretty sure we know what the issue is, we accepted fault where it was due, apologized and offered to come back and fix it and the customer ignored out offer. We're not going to drive 2 1/2 hours round trip to go to a customer's house and "hope" that he will invite us in to fix things. Furthermore, this customer went a step beyond simply ignoring our apology and offer to fix the problem. He filed a claim with Paypal in an effort to get a refund without having to return the product. In his claim to Paypal, he lied and made it sound like we had not contacted him in three months about his issue, when in fact we had contacted him that very week to follow up. Paypal denied his claim at which point, he started to make demands that we issue him a refund and then he would allow us to come and pick up the door. We did reject this offer because at this point, being that he lied to Paypal, the trust and relationship was severed. Why should I have to send him a refund first, then go pick up the door? After the way he handled this, why should I believe that if I refund his money, that he will actually make good on his promise to return the door? He already proved to me that he was capable of lying to get what he wanted, why should I believe him?

Here is a bit more information for you to digest: After we rejected his demands which I feel we had just cause to reject those based on his handling of the situation, he files for a chargeback with his credit card company. Our answer to the chargeback was "return the product and we will gladly refund your money." I sent him an email that we would be in his area and would be glad to come by and pick up the door, saving him the expense of having to return it but that he had to sign and have notarized his promise to do so. I included this in my response to the chargeback. He lost the chargeback and that is why he is lashing out now I suppose.

I answered your questions, provided additional information please answer mine. What more could we have done to appease this customer?

 

[quincy]

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

I'm co-owner of a small business with my husband and my question is about a negative review on left by a disgruntled former customer. Though I'm not sure what exactly can be considered defamation and there may be something else in his review that is, but I'm pretty certain that making a false statement is. This person made the statement that I "would rather start a smear campaign than refund what he paid thus far." This is a lie; I have documented proof that he was offered a refund on more than one occasion. The problem that he seems to be having with the refund is that there is a condition associated with it; he must return the product first which for whatever reason, he refuses to do. He had a problem with our service related to the product as well. I show that he still owes us $50 for the product purchased; his account was credited for the service performed and we did charge a non-refundable delivery fee. I sent an informal C&D email to him yesterday, to which he replied, "ha ha!" He is located in South Carolina.

There's a lot more to this story and I would be glad to retell it but for simplicity's sake, I'm trying to stick to the facts. I'm aware that anyone can sue for anything and that these cases can be long and espensive. I'm going to attempt to handle it on my own if the attorney's fees are too high which from what I've gathered, can be very high. I just need to make sure that I understand all the rules surrounding defamation and libel. And also that my response to his reviews are also appropriate. I have edited them and can do further editing if advised because I do have a habit of responding emotionally.

Please PM for a link to the reviews.

mrsjohnson, where was the negative review, and your responses to it, published (what website)?

Although I generally prefer that posters do not send links to me by private message, I am curious about the exchanges made in the review. Could you send me the link, please? Thank you.

As a note, defamatory per se statements are those that need no explanation or background to understand their defamatory nature. These statements are defamatory "on their face." A false accusation of a crime or a claim of dishonesty in business practices, for example, would generally be considered defamatory per se.

In Georgia, there needs to be more than one claim that a business made a mistake or erred in order to support a defamation per se action. In South Carolina, harm is presumed when a statement is defamatory on its face but evidence of harm should be demonstrated if anything but nominal damages are to be awarded.

 

[Zigner]

Go there with a check in hand and uninstall/remove the door at the same time...that's something you could have done. I don't think it's reasonable to expect the customer to uninstall the door (that you installed) in order to issue a refund. If you're willing to issue a refund, then you need to uninstall the door.

 

[quincy]

This is a walk-in pantry. To your first question, yes at this point I am expecting him to uninstall the door and deliver it back and I explained to you why I expect this once before. Please see this:



Do you mean go back there? We were already there, we're pretty sure we know what the issue is, we accepted fault where it was due, apologized and offered to come back and fix it and the customer ignored out offer. We're not going to drive 2 1/2 hours round trip to go to a customer's house and "hope" that he will invite us in to fix things. Furthermore, this customer went a step beyond simply ignoring our apology and offer to fix the problem. He filed a claim with Paypal in an effort to get a refund without having to return the product. In his claim to Paypal, he lied and made it sound like we had not contacted him in three months about his issue, when in fact we had contacted him that very week to follow up. Paypal denied his claim at which point, he started to make demands that we issue him a refund and then he would allow us to come and pick up the door. We did reject this offer because at this point, being that he lied to Paypal, the trust and relationship was severed. Why should I have to send him a refund first, then go pick up the door? After the way he handled this, why should I believe that if I refund his money, that he will actually make good on his promise to return the door? He already proved to me that he was capable of lying to get what he wanted, why should I believe him?

Here is a bit more information for you to digest: After we rejected his demands which I feel we had just cause to reject those based on his handling of the situation, he files for a chargeback with his credit card company. Our answer to the chargeback was "return the product and we will gladly refund your money." I sent him an email that we would be in his area and would be glad to come by and pick up the door, saving him the expense of having to return it but that he had to sign and have notarized his promise to do so. I included this in my response to the chargeback. He lost the chargeback and that is why he is lashing out now I suppose.

I answered your questions, provided additional information please answer mine. What more could we have done to appease this customer?

I think that the problem with the door can probably be handled outside a courtroom but there needs to be an understanding between you and the customer as to what is going to happen with the door.

It will probably be to your financial benefit to travel the 2+ hours back to his house to uninstall the door at a time scheduled that is convenient for both of you and where you can refund the money at the time of removal. I do not think it unreasonable for you to subtract from the refund your expenses, but this is something you can negotiate. In exchange for the removal of the door and the refund, you should have a written promise from him to remove the negative review from its place online, to be replaced with a retraction of the same size, saying that the matter was resolved to everyone's satisfaction.

Again, if you would like to send me a link to the review, I can perhaps let you know what I think of any defamation claim.

 

[LdiJ]

This is a walk-in pantry. To your first question, yes at this point I am expecting him to uninstall the door and deliver it back and I explained to you why I expect this once before. Please see this:



Do you mean go back there? We were already there, we're pretty sure we know what the issue is, we accepted fault where it was due, apologized and offered to come back and fix it and the customer ignored out offer. We're not going to drive 2 1/2 hours round trip to go to a customer's house and "hope" that he will invite us in to fix things. Furthermore, this customer went a step beyond simply ignoring our apology and offer to fix the problem. He filed a claim with Paypal in an effort to get a refund without having to return the product. In his claim to Paypal, he lied and made it sound like we had not contacted him in three months about his issue, when in fact we had contacted him that very week to follow up. Paypal denied his claim at which point, he started to make demands that we issue him a refund and then he would allow us to come and pick up the door. We did reject this offer because at this point, being that he lied to Paypal, the trust and relationship was severed. Why should I have to send him a refund first, then go pick up the door? After the way he handled this, why should I believe that if I refund his money, that he will actually make good on his promise to return the door? He already proved to me that he was capable of lying to get what he wanted, why should I believe him?

Here is a bit more information for you to digest: After we rejected his demands which I feel we had just cause to reject those based on his handling of the situation, he files for a chargeback with his credit card company. Our answer to the chargeback was "return the product and we will gladly refund your money." I sent him an email that we would be in his area and would be glad to come by and pick up the door, saving him the expense of having to return it but that he had to sign and have notarized his promise to do so. I included this in my response to the chargeback. He lost the chargeback and that is why he is lashing out now I suppose.

I answered your questions, provided additional information please answer mine. What more could we have done to appease this customer?

I think that what you should have done, was have someone in management personally examine the door right away even if it was inconvenient. Then, you should have offered to fix whatever needed to be fixed in order for the door to fully open the 32 inches. I understand that you did eventually make the offer to do that but it appears that you did not do it promptly. Now you have dug your heels in to the point where the situation cannot be mended.

The problem that you have regarding a defamation case is that what he is complaining about is essentially true.

 

[mrsjohnson]

mrsjohnson, where was the negative review, and your responses to it, published (what website)?

Although I generally prefer that posters do not send links to me by private message, I am curious about the exchanges made in the review. Could you send me the link, please? Thank you.

As a note, defamatory per se statements are those that need no explanation or background to understand their defamatory nature. These statements are defamatory "on their face." A false accusation of a crime or a claim of dishonesty in business practices, for example, would generally be considered defamatory per se.

In Georgia, there needs to be more than one claim that a business made a mistake or erred in order to support a defamation per se action. In South Carolina, harm is presumed when a statement is defamatory on its face but evidence of harm should be demonstrated if anything but nominal damages are to be awarded.

I sent you a private message with the links.

The question remains; did the customer make a false statement with his remark and it is defamatory? Seems to me that it is defamatory on it's face considering he was offered a refund and rejected it.

How do you establish by law what part of a product and service are legally refundable? If you make it know to a customer before he enters a contract that this portion of your service is non refundable, that is your policy and they choose to contract with you anyway and then expect that you change your policy for them when they unhappy, how do your protect your business?

 

[mrsjohnson]

Go there with a check in hand and uninstall/remove the door at the same time...that's something you could have done. I don't think it's reasonable to expect the customer to uninstall the door (that you installed) in order to issue a refund. If you're willing to issue a refund, then you need to uninstall the door.

No that is not something that we could have done without huge risk to us and further loss. I already stated that we offered to correct the problem, and offered a refund and it was rejected. Are you suggesting that we just show up?

This door installation thing is much less trouble and burdensome than one might think. It requires lifting the door off it's track. Viola! It is uninstalled. The door has hardware that consists of two straps that must be removed that I could do myself in less than five min. with a drill and 10 min. with a wrench.

 

[LdiJ]

I sent you a private message with the links.

The question remains; did the customer make a false statement with his remark and it is defamatory? Seems to me that it is defamatory on it's face considering he was offered a refund and rejected it.

How do you establish by law what part of a product and service are legally refundable? If you make it know to a customer before he enters a contract that this portion of your service is non refundable, that is your policy and they choose to contract with you anyway and then expect that you change your policy for them when they unhappy, how do your protect your business?

There is a difference between an unhappy customer and a customer who did not get what he paid for. Your customer did not get what he paid for (a door that opened 32 inches) therefore he should be refunded in full. Had it been fully to spec and he just decided he didn't like the finish he chose, or something like that, then its valid to have some portion be non-refundable.

 

[mrsjohnson]

I think that the problem with the door can probably be handled outside a courtroom but there needs to be an understanding between you and the customer as to what is going to happen with the door.

It will probably be to your financial benefit to travel the 2+ hours back to his house to uninstall the door at a time scheduled that is convenient for both of you and where you can refund the money at the time of removal. I do not think it unreasonable for you to subtract from the refund your expenses, but this is something you can negotiate. In exchange for the removal of the door and the refund, you should have a written promise from him to remove the negative review from its place online, to be replaced with a retraction of the same size, saying that the matter was resolved to everyone's satisfaction.

Again, if you would like to send me a link to the review, I can perhaps let you know what I think of any defamation claim.

Quincy,

We've already offered to do this! Ignored, rejected.