online review since deleted, slander case?

[jaylin1]

NJ - I am writing in regards to an ongoing situation that started in July and has yet to be resolved.
I sent my camera to a company in TX to get repaired in July. I didn't hear anything from the company for about a month, so I sent an inquiry for the status in August. I received an email saying they were expecting a special part that should arrive the following week and the camera would be promptly shipped out. Another month later I still hadn't received it, and I called to inquire again what the status was. I spoke to a man who told me to send the email delivery confirmation to them to verify they had my camera. Come October, I still hadn't gotten it. I'll admit, I was frustrated and angry, and I posted a review on a website stating the facts I hadn't received it. I also advised people not to use the company. In November I was told a replacement would be sent to me, and sent a shipping number. The shipping number was supposedly never scanned by the post office, and ultimately I never received the camera. I called again to ask about this situation towards the end of November, and they said it had been mis-sent to an invalid destination and would be re-shipped. Not receiving it STILL, the beginning of December I called the company and they said they'd recalled the shipment due to a legal issue. Not having any idea what this was, they told me my online review had been sent to them and they were considering pursuing slander charges against me. They were also considering including the business that I work for because I'd written this while at work. They said they'd sued previous employees and competitors who had written slanderous reviews about them and had won over $40,000. I said I would delete the review - and they led me to where the site was. I deleted it, and I was assured no legal action would be taken against me. Also, I was assured I'd have my camera within a week of that conversation. Again, no camera. I wrote an email asking when I'd receive my camera and for a tracking number, and no answer. When I wrote today saying I was considering filing complaints with the Better Business Bureau, the IC3 and the Attorney General, they immediately wrote me back saying that if I filed complaints, they'd pursue with their attorney and include my workplace.
I have read this is actually libel and not slander - but do they have a case? Is this a SLAPP lawsuit they're talking about? I have not received my camera back after 5 months. There are numerous other people who have written they also have not received their cameras. I wrote my review after reading all of these other horror stories, and I'm still scared I won't get my camera back. Please advise me what I should do.What is the name of your state (only U.S. law)?

 

[justalayman]

well, without knowing what your wrote about them, it is impossible to determine if it was defamatory. If it wasn't defamatory and simply a statement of the actions to date, they have no valid case. Doesn't mean they can't or won't sue you but it means they should not win.

A true statement is not defamatory.


Regardless, the defamatory action (if it even was) does not justify them keeping your camera. Since they have claimed it is repaired, they have no legal justification to retain possession. While it might be stretched into a criminal action, it is unlikely it would ever be prosecuted as such. Your action would be to sue them for the value of the camera.
The problem is even if you win, how to enforce a judgment. Doing it across the country is fraught with obstacles to collecting a judgment.


and yes, written defamation is libel, slander is spoken but they are both defamation. It is only how the defamation is made public that makes the difference.

 

[quincy]

I would go ahead with your plans to contact the Texas AG and the BBB, but first I would contact an attorney in your area. Have the attorney send this business a letter advising them that complaints are being filed against them over both their failure to repair and return your camera, and over the threats made, and demand that the camera be sent to you immediately or legal action against them will be pursued.

It is highly unlikely, if they threatened you with a "slander" suit, that they have already been in contact with an attorney over your review. An attorney would know that a written review, if defamatory, would be libel and not slander. Their threat, therefore, is probably groundless - as is their threat to contact your place of employment.

Have the attorney you contact review all email and telephone communications you have had with the company, along with any other pertinent facts.

If you have a copy of your negative review of the company, have the attorney look this over, too, just to make sure you are on safe legal ground with it. If you stuck just to the truthful facts of your experience with this business, it would not be libelous. It is possible that you generalized or implied or stated false facts about the business, which could potentially support a defamation suit, but I doubt that a Texas company would file a libel suit against you in New Jersey. It would be extremely expensive for them to do so, and they are not exactly in a good position to complain about a negative review, having kept your camera for so long. In fact, it sounds as if this might be a company that wants to avoid courtrooms.

Again, contact an attorney and go from there.

Good luck.

 

[jaylin1]

Thank you so much for a quick response.
I'll admit, I was highly upset when I wrote it, and had been influenced by the other reviewers that said they also hadn't gotten their cameras back. But once I deleted it they had said no legal action would be taken. I told the company I'd be happy to post positive reviews once I got my camera back - I can understand a mistake being made and them being willing to rectify not getting my camera back sooner, if it worked excellently I'd be glad to tell others that the service was good. Bottom line is I would like my property back! I'm just confused why they'd be so quick to file lawsuit charges, wouldn't it draw more negative attention and possibly have others come forth who have had bad experiences?

 

[quincy]

Yes, suing dissatisfied customers is not exactly the best way to attract new customers to a business.

Your review is not one I would have recommended you publish and you were wise to delete it. Parts of it could be considered libelous. You took your single experience with this company and, influenced perhaps by the reviews posted by others, concluded that the company was "barely running."

The problem statements (with problem words bolded):
"...part for the camera was supposedly needed...was never ordered or unable to be located..."
"Serious lack of communication with their customers..."
"-which never gets returned."
"It is an atrocity to run a "business" this way.."
"...this place is barely running.."
"..by a company who actually cares about their customers.."

It is legally dangerous to make false statements about the conduct, management or financial condition of a company. You generalized your single experience with this company and stated or implied facts about the company as a whole. You cannot know, for instance, that the company treats ALL customers the way you were treated, nor can you know for a fact what they did or did not do with the ordering of the part, nor can you know the company's financial status.

Without proof of the truth of your statements, and by stating opinions that imply potentially false facts, you lose your best defenses to a libel action, which are truth and opinion.

That said, it is still unlikely that the company will go to the great expense of suing you for defamation. If you lived in Texas, it might be different. And, you did have a good reason for writing a negative review. And reviews, on the whole, tend to be looked at as opinion, even when they stray from "pure" opinion into exaggerations like "always" and "never." My biggest concern with your review would be over your "barely running" statement.

But I still recommend you have an attorney in your area look over the review and go over all of the facts of your communications with the company, and then, following the advice of your attorney, consider sending a letter to the company and filing complaints.

You are not in as good of a position, defamation-wise, as you could be, but the company still has your camera, so their position is not exactly a great one, either.

A letter from an attorney may be all it takes to resolve the matter. Good luck.

 

[jaylin1]

Thank you again for the reply, it's greatly appreciated. I see what you mean regarding what I wrote, and unfortunately I now wish I had thought more and reacted differently to the situation. I will definitely seek the advice of an attorney nearby. It's unfortunate this has even come to what it has - I don't want to file complaints but with my property not being returned and threats if I file complaints I see no other way to pursue the issue. This has been a tremendous help, I had given up and thought I'd chalk it up to one expensive loss of a camera. The one last question I'd have is that they'd have to come to nj, not the other way around? If this ever proceeded and worst case I lost I'd imagine I'd be responsible for their legal expenses etc.. Something I could never afford. I'm so surprised at the aggressive threats being proposed if I file complaints. Also, not sure if this would help but they've had 42 complaints through the BBB within the last 36 months, a number that's jumped significantly from the last time I checked about a month ago when it was at 19. Again, I graciously thank you, it's been nice to get some good grounded advice when I've had legal threats being made that I didn't quite understand.

 

[quincy]

The company could file a defamation suit against you in either New Jersey or in Texas (if they decide to sue, which I imagine they won't).

State courts always have personal jurisdiction over residents of their state, but states also have long-arm statutes that allow their state courts to hear and decide matters involving nonresident parties, should certain conditions exist (ie. when the nonresident is shown to have had at least minimum contact with the state).

So it is possible that a court in Texas could be found to have jurisdiction over any defamation suit the company may decide to file against you, which would force you to travel to Texas to defend against it.

A problem the company would have in filing in Texas is that you (represented by an attorney) would probably fight jurisdiction. The company's attorney, aware that jurisdiction would be a natural area of dispute, could recommend the company file in New Jersey to avoid the legal battle, as it could be easier and less costly in the long run.

But it is really a crap shoot as to what the company would do and which state would ultimately be found to have jurisdiction over the matter, should jurisdiction be argued. The only guarantee is that jurisdictional fights can substantially increase the costs of litigation.

Should you lose a libel suit, you could be responsible for all court costs and you would be responsible for any damages awarded the company. The company's attorney costs will generally come out of the awarded damages. You would be responsible for your own attorney costs.

Again, I doubt if the company is going to go to the expense of suing - not over a negative review, not with their BBB record, and not as long as they still have your camera in their possession. It is hard to predict how a court will look at a customer's negative review of a business, but courts vigorously defend First Amendment rights, so the company would need to present a strong case. And the company's record with customers is definitely something that works against them. It would be hard for the company to show, for instance, that your review alone was the cause of the reputational injury and any loss of business they have suffered.

As a note, the statute of limitations (the time within which a suit must be filed) is one year from the date of first publication of defamatory material, for both New Jersey and Texas.

Again, it is best to speak with an attorney in your area and go over your options. The attorney can better advise you after he has had a chance to check out the company, go over your review and all communications you have had with the company, and review all facts. He can also address any questions you may have about jurisdiction and costs.