Is my comments on a forum constitute libel?

[new2freeadvice]

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

First, I would like to apologize for the long post. I purchased two trees from a lady from South Carolina through her website. The trees were supposed to have several different variety of fruits grafted onto them. The trees that I received did not appear to be grafted, although I was not 100% positive of this fact. I suspected that I was scammed but did not accuse the seller of such because the seller has numerous positive feedbacks from others. After I returned the trees for a partial refund, I left a neutral feedback on a well-known gardening forum. The seller responded to my comments and the discourse resulted in me changing the rating to negative. Subsequently, the seller sent me an email threatening a libel and defamation lawsuit if I did not retract my comments. The following is what transpired on the forum:

Posted on March 18, 2011, updated March 23, 2011
I just ordered two 5-in-1 fruit trees. The trees were shipped promptly. Both trees looked healthy and had good strong roots. Unfortunately, I could not discern any indication that the trees were grafted.

One of the tree was taped so I could not tell if the grafts were underneath. The other tree was a 2' straight whip with a smooth outer bark from top to bottom of uniform color; absolutely no sign of any graft. I am not an expert concerning bud grafts, but for a relatively young tree I would expect to see some indications of the 5 grafts.

I emailed Mrs. M several times, attaching close up photos of the straight whip. She stated that could not point out the grafts on the photos, but swears that the tree in question was a 5-in-1.

I decided to return both trees instead of planting them, to avoid being disappointed 3 or 4 years down the road. Mrs. M refunded my money less shipping cost.

However, I had to also pay the postage to return the trees. Overall, I'm ended up losing $30 in this transaction and got nothing for it.
________________________________________
Company representative comment on March 19, 2011:
On Mar 19, 2011 11:37 AM, Mrs. M responded with:
Mr. X received 2 healthy, large, viable 5 in1 fruit trees. The grafts were clearly in tact and several buds were already swelling. I personally inspect each tree prior to shipping. The tape he is referring to is a grafting tape that the buds will grow through.

Per his own words, he is ''not an expert concerning bud grafts''. His photos clearly showed the grafts, large as day and I could not figure out a way for him to see what was in plain sight as he took the photos of the grafts himself.

I grow and sell hundreds of the ****tail type trees (several varieties) each year, as well as many other varieties of plants, and this is not something new to me nor am I a novice.

I felt it was in my best interest to offer Mr. X in a refund. Then, without notice, Mr. X returned the trees to me. Upon arrival, one bud that I had pointed out to Mr. X had opened enroute and several more have opened since. If there was a problem with the trees, they would have been replaced.

Many conversations took place over the trees. I feel this was just a situation of buyers remorse. I strive to grow and sell the best plants and to service my customers and spend many hours each day conversing with customers. I have learned over the years that you cannot please everyone.
________________________________________
On March 23rd, 2011, Mr. X changed the rating from neutral to negative and added the following:

This is not a case of buyers remorse. I originally avoided giving a negative rating because I gave her the benefit of the doubt. I did not question her about the taped (Asian Pear) tree (see original comment). However, as a buyer, how can you tell if the tree is truly grafted if you could only rely on the seller to tell you that the grafts are under the tape? Most nurseries sell trees after the tapes are removed to ensure that the grafts are viable.

Second, Mrs. M was correct that the apple tree were budding but that does not indicate it was a 5-in-1. What I received was a regular apple tree when I ordered a 5-in-1 combo. If I wanted a regular apple tree I would have brought one at a local nursery and saved some money.

When I sent her numerous photos and politely suggested that perhaps she may have made a mistake in shipment, she firmly asserted that no mistake was made because she does this for a living. Well, it hard to argue with perfection.

Since I still believed it was her "mistake" (putting it nicely), I asked for a free replacement but she was only willing to offer a refund upon the return of the trees. She now has her trees back to sell to someone else. As a buyer, I got to hold the short end of the stick.

In her reply to my feedback, she stated that she would have replaced the trees if there was a problem. There was a problem as I repeatedly tried to convey to her through my emails (she has no phone number listed). The problem was not the viability of the trees but that I received something substantially different from what I ordered.

By the way, I am willing to email the photos to anyone interested. A picture is worth a thousand words.
_____________________________________________
Excerpt of email sent to me:

Dear Mr. X.

Please be advised that I just spoke with my legal counsel. After reading your comments, I have been advised to contact you and inform you that if you do not remove your negative comments immediately from any and all online web sites about myself and our company, we are fully prepared to sue for defamation, libel and slander.

Any further contact can be made between my legal counsel and yours.

______________________________________________

I am willing to retract my comments if I made any statements that constitute libel, but I feel that the seller is attempting to bully by using the threat of lawsuit. Can she sue me? Should I retract or not retract my opinion on the forum?What is the name of your state (only U.S. law)?

 

[davidmcbeth3]

Just going by the title, yes it is possible that online posting can be grounds for a civil action.

 

[quincy]

I could see how your comments could lead to a defamation suit.

You said in your negative review: "What I received was a regular apple tree when I ordered a 5-in-1 combo" and "..I received something substantially different from what I ordered" and "..I got to hold the short end of the stick."

Those statements could be considered defamatory, especially since you also state you are not an expert on bud grafts and you are not 100% sure the trees were not what you ordered. Even though you state that with online sales "you must rely on the seller" to send what you ordered, you did not rely on the seller despite her reassurances as to the trees you received. You did not give the trees the opportunity to bud. You instead returned the trees for a refund, which was granted, and accused the seller of sending you something different than what was ordered.

I think a retraction or deletion of your comments sounds reasonable under the circumstances. You may wish, however, to review all of the facts with an attorney in your area.

 

[Zigner]

I could see how your comments could lead to a defamation suit.

You said in your negative review: "What I received was a regular apple tree when I ordered a 5-in-1 combo" and "..I received something substantially different from what I ordered" and "..I got to hold the short end of the stick."

Those statements could be considered defamatory, especially since you also state you are not an expert on bud grafts and you are not 100% sure the trees were not what you ordered. Even though you state that with online sales "you must rely on the seller" to send what you ordered, you did not rely on the seller despite her reassurances as to the trees you received. You did not give the trees the opportunity to bud. You instead returned the trees for a refund, which was granted, and accused the seller of sending you something different than what was ordered.

I think a retraction or deletion of your comments sounds reasonable under the circumstances. You may wish, however, to review all of the facts with an attorney in your area.

Quincy - you are leaving out the fact that the seller would need to PROVE damages and that could be very very difficult in a case like this. So, while the comments MAY be defamatory, realistically, the seller is probably blowing smoke.

As you said, it would be a good idea for the OP to review this with a local attorney.

 

[quincy]

South Carolina recognizes per se defamation. Reputational injury does not need to be proved in order to have an action that can result in an award of damages.

Essentially what new2freeadvice has claimed in his reviews is that the tree-seller "scammed" him. That can be seen as defamatory on its face. Even if a suit is not pursued past the complaint and summons stage, it can still lead to legal costs for new2freeadvice, as he must answer the complaint and assert a defense (a defense which seems to be somewhat lacking here).

If I were faced with the choice of retracting or deleting what appears to be defamatory comments, or risking a lawsuit over the comments (however remote the risk may be), I think I would opt for the safest and least costly choice.

 

[antrc170]

Although the seller might sue for defamation, I don't see it being confirmed. As Zigner pointed out, damages would need to be proven. Also the seller would need to show that the tree's she sent were the correct trees. If the OP has pictures showing the lack of evidence of grafting, then he has every right to assume (regardless of whether he is an expert, if he has prior experience that leads him to believe the grafts should be visiible) that the trees he recieved was an apple tree and not the correct product. With this as his determination it is not defamatory to say that he recieved the wrong product. "I got to hold the short end of the stick" holds no actual context and would be an opinion statement.

 

[new2freeadvice]

Thank you for the quick response.

 

[quincy]

Wrong on all counts, antrc, but thanks for playing - and you're welcome, new2freeadvice.

 

[Zigner]

South Carolina recognizes per se defamation. Reputational injury does not need to be proved in order to have an action that can result in an award of damages.

Essentially what new2freeadvice has claimed in his reviews is that the tree-seller "scammed" him. That can be seen as defamatory on its face. Even if a suit is not pursued past the complaint and summons stage, it can still lead to legal costs for new2freeadvice, as he must answer the complaint and assert a defense (a defense which seems to be somewhat lacking here).

If I were faced with the choice of retracting or deleting what appears to be defamatory comments, or risking a lawsuit over the comments (however remote the risk may be), I think I would opt for the safest and least costly choice.

Thank you for the correction Quincy.

 

[antrc170]

Wrong on all counts, antrc, but thanks for playing - and you're welcome, new2freeadvice.

Nope, think I'll stick around. Thanks for the advice though. I enjoy providing proper commentary to posts. I going under NJ law because that is where the OP posted from and I didn't see anything to indicate the offended party was in another jurisdiction.

Under New Jersey law, defamation is defined as “(1) a defamatory statement of fact [This is the argument of this case. Mainly, was the wrong product shipped as the OP suggests? The seller would need to show that the correct product was in fact shipped.] (2) concerning the plaintiff [This part is satisfied](3) which was false [Not shown yet by the seller];(4) which was communicated to a person or persons other than the plaintiff [This is satisfied]; 5) with actual knowledge that the statement was false or with reckless disregard of the statement's truth or falsity or with negligence in failing to ascertain the truth or falsity [The OP has prior knowledge of plants and determined according to his prior experience and/or training that the plant he recieved was not the proper product. The seller will need to show that the OP knew, or should have known the plant was a 5-1 tree]; and (6) which caused damage [NJ is a per se state so the damages could be inferred as business may suffer].

So the seller has satisfied 3 of the 6 requirements. As I stated in my first post I don't see the seller meeting the other three requirements.
The seller might be able to show through shipping records that she sent what was labeled as a 5-1 plant to satisfy section 3. But the OP can argue that mistakes happen and it becomes a he said/she said scenario.
However, proving that the OP knew, or should have known, that the statement was false is going to be very difficult. The OP can show that based on his past knowledge, training, and experience that the product he was dealing with was not the 5-1 tree. He can explain how he came to that conclusion which is a reasonable explanation.

I'm sorry if my understanding of the law offends your opinion or your view, however, the courts are set up for arguments...in fact, they even call them that.

 

[quincy]

Your first error, antrc, is in thinking that the seller needs to prove the statements are false. Not so. New2freeadvice would have to, as a defense, show that his statements were true or pure opinion.

It does not appear he can do that because, one, he does not have the trees and, two, he has admitted he is not 100% sure the trees he received were not as ordered (stating in his published reviews that he "could not discern any indication that the trees were grafted," he "could not tell if there were grafts" and he only "believed" it was her mistake) and, three, he admits he is not an expert ("I am not an expert concerning bud grafts") and, four, what he wrote were statements of fact and not opinion ("What I received was a regular apple tree when I ordered a 5-in-1 combo").

His own reviews actually serve to defeat his "truth" defense. In addition, he notes that it was the "discourse" with the seller that led to his changing his neutral review to a negative review, and not the fact that the trees that were sent were not 5-in-1s.

The tree seller is located in South Carolina, as indicated in the first post. South Carolina could probably be shown to have jurisdiction over the matter however, even if new2freeadvice were to fight jurisdiction (a costly move) and the case were to be held in New Jersey, New Jersey, like South Carolina, recognizes per se defamation.

With per se defamation, no proof of reputational injury or fault is needed. These are presumed and damages can be awarded on this presumed injury alone.

So, let's see. The elements required for a defamation suit to go forward are: a defamatory statement has been made (check), the statement was published to a third party (check), the defamatory statement has identified a specific person or entity (check), there was reputational injury suffered (check - as per se statements presume injury) and there was fault amounting to at least negligence (check - and with per se statements, actual malice can be demonstrated).

Sure seems to me that all elements are met satisfactorially. The defense, however and as I said previously, appears to be lacking. Truth and opinion will not fly, based on what has been posted here, because truth cannot be proved and the statements are not expressed as opinion.

Your understanding of the law, antrc, does not offend my "opinion" of the law. It does, however, offend my "knowledge" of the law.


(you're welcome, Zig )

 

[antrc170]

Your first error, antrc, is in thinking that the seller needs to prove the statements are false. Not so. New2freeadvice would have to, as a defense, show that his statements were true or pure opinion.

No...just as in criminal courts, in civil courts there is no presumption of guilt. It is up to the plaintiff to prove that the offense occurred via a preponderance of the evidence. I don't think that the plaintiff can articulate in any manner that the defendant knew the statements were false and would a difficult time even showing that the statement were false.

The tree seller is located in South Carolina, as indicated in the first post. South Carolina could be shown to have jurisdiction over the matter, however, even if new2freeadvice were to fight jurisdiction and the case were to be held in New Jersey, New Jersey, like South Carolina, recognizes per se defamation. [\QUOTE]

I didn't catch the SC state. I would gather though that the two states have very similar definitions of defamation.

With per se defamation, no proof of reputational injury or fault is needed. These are presumed and damages can be awarded on this presumed injury alone.[\QUOTE]

I agree that the per se avoids the plaintiff from proving damages, which I already pointed out.

So, let's see. The elements required for a defamation suit to go forward are: a defamatory statement has been made (check), the statement was published to a third party (check), the defamatory statement has identified a specific person or entity (check), there was reputational injury suffered (check - as per se statements presume injury) and there was fault amounting to at least negligence (check - and with per se statements, actual malice can be demonstrated).

Sure the checks are there for the case to go forward...I wasn't arguing that. I'm arguing that the plaintiff will not be able to provide sufficient evidence for a judgement. The plaintiff will have a difficult time meeting the burden of proof, via the perponderance of the evidence, in civil court.

 

[new2freeadvice]

Again, thank you for all the responses. I have already requested my comments to be deleted from the gardening forum. Next time I will be more careful about wording my opinions to avoid making statements of fact.

I have a final question concerning a comment by Quincy about the reason why I changed my rating to negative. I am under the assumption that ratings on the internet could be based on the totality of the experience with the seller and not just about the quality of the product. Is this correct? In my case, I believed the seller was lying when she told me that the grafts were clearly visible to her on the photos but could not point them out. This was the impetus to the rating change.

Nevertheless, this was a good eye opening experience. I can also say that I am less incline to bother with offering feedback after this incident.

This is great forum. Very helpful.

 

[Zigner]

No...just as in criminal courts, in civil courts there is no presumption of guilt. It is up to the plaintiff to prove that the offense occurred via a preponderance of the evidence.

You really should bow out of this one. You're wrong (as I was.) The difference is that I am willing to admit it. You, on the other hand, just continue to stick your foot deeper and deeper in to your mouth.

 

[quincy]

I think you were wise to delete your review, new2freeadvice.

Negative-review writing is difficult because there is a very very fine line between the facts of an experience and pure opinion, and opinion that states or implies false facts. When someone has had a bad experience with a company or an individual, it is hard not to exaggerate or embellish facts to impress upon a reader how negative you felt your experience was.

While impractical, it would help those considering writing a negative review to have their review reviewed by someone well-versed in publishing law, prior to publication. At the very least, it is wise to research the law a bit, prior to committing any negative review to print.

A good source for anyone contemplating writing anything on the internet is kcnn.org/legal_risk.

As to your additional question, new2freeadvice, you are correct that ratings can be based on the totality of one's experience. However, your changing your rating from neutral and a relatively safe first review to negative with a potentially defamatory second review could be an indication of malice - an indication that your intent is to harm the seller and not to simply report on the experience you had with your trees.

The tree-seller reasonably responded to your first negative review with "the other side of the story." This gives a reader the opportunity to come to their own conclusion as to whom to believe. Had you let the matter stand there, with just your first review and the seller's response to it, I doubt if the tree-seller would be thinking about a defamation suit now.

At any rate, I think you were wise to remove your review. That should appease the tree-seller and stop all thoughts she may have had of suing.

Good luck.

(another post will be in response to antrc's comments )