Threatened with slander lawsuit re online forum neg comments

[GraphicVision1]

What is the name of your state (only U.S. law)? Us: Arizona, Her: Kentucky

So the story goes my wife is part of an online wedding planning community where they share ideas for wedding planning and even keep profiles updated after the wedding with photos and comments on how everything went. So she updated her profile with a comment about how she felt our photographer was not what she claimed to be and she was unhappy with her work. So someone asked her to tell more about what what happened, so my wife makes a post about all the things she felt our photographer did wrong. Keep in mind, this was months ago.

So this morning I get a text from my wife saying the photographer emailed her saying she was going to sue her for slander and she's freaking out. So my wife forwards me the emails and the post she made and I read through them. My wife definitely didn't hold back on anything, but the key is she was honest and didn't say anything that was untrue or mean just to be mean, as bad as some of the things the photographer did. I called the photographer instead of having my wife make things worse by getting into a verbal fight with her. I tried my best to remain calm, not raise my voice or interrupt her and be civil, but the photographer was out of control, basically yelling at me for my wife being a "bold face lier" and making up things about her. She said that she hired a lawyer and gave me his name (which I wrote down). She kept slamming my wife and screaming about her "lies" in my ear. I kept calm and kept repeating that the only solution is for us to take the post down and it will resolve the problem, she walks away, we walk away. Each time I expressed this she would cut me off and start bashing my wife again and saying she was making stuff up and had post-wedding pardom depression.

I finally gave up being civil and told her she had no grounds for suing us and she would never be able to prove that she was telling the truth and my wife was lying because, well, simply put my wife doesn't lie. She has all the email communication and miscommunication between them, witnesses to how the photographer acted duing the wedding and we have the bad photos to prove what she was saying in the post was accurate and not slander. Plus there's no way the photographer could prove how much business she lost, if any, due to this post. Keep in mind the post was made months ago, so no one has even looked at it in months. Plus vendors are not supposed to be on this website at all, so she obviously made up a fake profile to view it, which she was caught once before in the past of doing and was kicked off the site.

So after I tell her how she doesn't have grounds or can't prove anything and that the only solution is to take the post down, she hangs up on me. I didn't raise my voice the entire time and I tried everything in my power to not fight with her, although she kept pushing me to do it. I looked up the name she gave me of her "lawyer" and called his office, but of course got his voicemail. I left a message explaining I got his name from a client about slander on a public forum over her photography business and still haven't heard back from him. My wife just texted me saying she took the post down, so it's no longer viewable online to anyone.

The photographer also emailed our wedding planner and told her because my wife was causing problems, she couldn't use our wedding photos to promote her wedding planning business since she owns the rights. On our contract though it says she gives up all rights once she hands the photos over to us and has been paid.

So my question is, does she have any grounds for suing us for the post being up, even now that it's been taken down? Did we fail at standing our ground and keeping the post up because it was my wife's honest opinion and she wasn't just making up "bold face lies"? Does the photographer have the right to tell our wedding planner she can't use our wedding photos for promoting her wedding planning business even though she gave up all rights when we purchased the photos?

My wife was freaking out before but seems much calmer now that I've been trying to resolve everything. I'm just really torn as to what to do because I know what my wife went though with her and how obviously out of control she is after talking to her on the phone, so I feel like taking the post down means another bride/groom might have no clue what's coming when they hire her. At the same time I'm so wanting to be done with it and move on so should I even care? It's tough because that's what public forums are all about, helping one another and trying to share stories and opinions. Ugh.

Cliffs:
- Wife posts negative comments about wedding photographer on online forum
- Photographer sends email to wife saying she's going to sue us for slander
- Photographer sends email to wedding planner to not to use our photos
- I call photographer and she yells at me the whole time and hangs up on me
- Wife takes post down
- I call supposed attorney and get no phone call back
- What gives? Does she have grounds for suing us? Preventing use of photos?
- Are we chumps for giving in and taking the post down?

 

[quincy]

To start, as a minor point, "slander" is spoken defamation. What is written would be called "libel." Any complaint filed against your wife for what she wrote online would be for libel.

To answer your last question first, I do not believe you were "chumps" for removing the comments about the photographer. It may be enough to prevent the photographer from suing or, in the event of a suit and a photographer win, the fact that you deleted the material can mitigate any damages awarded. Do NOT think about reposting the content now that it has already been removed. There is no "discovery rule" for libel actions in Kentucky, so the statute of limitations (the time allowed for bringing a defamation action) is one year from the date of first publication, regardless of when the defamatory material is "discovered." But republishing the material would reset the statute of limitations to the date of NEW publication. You do NOT want that.

The photographer can sue, even with the material now removed. The reputational injury (if any) has already occurred. But, whether any lawsuit would be successful depends on EXACTLY what your wife wrote.

Writing the truth (or substantial truth) and expressing pure opinion and making fair comments and criticisms are all protected forms of speech. This speech does not PREVENT a lawsuit from being filed against you (anyone can sue for any reason). It does, however, prevent a Plaintiff from WINNING a suit.

The problems that I see your wife having in any defamation action would be if her comments about the photographer strayed from fact and pure opinion. Facts should be stated and the readers should be left to draw their OWN conclusions from these facts. If your wife drew defamatory conclusions from the facts or made false generalizations, she is at risk of losing a suit that is brought against her.

An example: I can say a photographer took blurry photos of my wedding and I hate the photos and I would never hire the photographer again. The first statement is a statement of fact (and can be proved factual by showing the blurred photos) and the other statements are pure opinion (they cannot be proved true or false). I CANNOT say that the photographer ALWAYS takes blurry photos or is incompetent or that everyone else will hate the photos or that if anyone hires the photographer they will be hiring someone who has no skill or ability or whatever. There is no way for me to know, from my one personal experience, if those statements are true. Those can be false facts and opinions that imply false facts - and can be defamatory if false.

Your wife would be wise to have the comments she wrote about the photographer reviewed by an attorney in Arizona to determine their defamatory nature - and she will DEFINITELY want an attorney if she is served with a complaint.

If your wife is sued, the odds are pretty good that she will be sued in a Kentucky court. There is often some discussion of jurisdiction when it comes to internet website actions. Kentucky courts, however, have ruled that, for defamation on the internet, "any significant contact with Kentucky is sufficient to allow Kentucky law to be applied." The photographer resides in Kentucky, discovered the defamatory comments online in Kentucky, and injury to her business and/or personal reputation would be greatest in Kentucky. Although jurisdiction can always be fought, it would only delay what is bound to be a decision in Kentucky's favor.

As for who has the rights in the photographs that the photographer took, generally a photographer will retain all copyrights in the photos and only sell the prints. You and your wife would own the prints that were purchased, but not the right to reproduce and distribute reproductions to others. Displaying them on a website, while attributing the shots to the photographer, is generally not a problem. Unless, of course, you are being sued by the photographer for other reasons.

I would check the agreement you signed with the photographer at the time of your wedding, to see what it says about the rights in the photographs. It would be highly unusual (at least in my experience) to have the photographer sign away the copyrights in the shots (as the photographer then loses a major source of revenue when additional photos are requested or required).

The photographer may very well have consulted with an attorney about suing your wife for defamation. The photographer may also very well have been quoted an estimated price for bringing an internet defamation action. The photographer may very well have then gasped or fainted.

Once someone learns of the expense involved in pursuing a defamation action, they often rethink it as an option.

At any rate, I suggest you see an attorney in your area, for a review of your wife's writings and a review of the agreement signed for the photographs, and, if served with a complaint, hire an attorney.

Good luck.

 

[GraphicVision1]

Thank you so much for your thorough and timely responce, quincy. I really appreciate you putting all of that legal info in layman's terms for me.

For the record, here is my wife's post, edited to protect the names of those involved. We'll call the photographer Jane and myself John:

Thanks! Can you write a bad review on this forum or does it get deleted?? I get confused about that. I tried to write it on the bio, but the new format doesn't allow you to get as lengthy as I needed. Let's see, here are the reasons she was so difficult:

1) Was very accommodating & agreeable BEFORE the contract was signed.
2) Told me a million reasons why the timeline that I suggested wouldn't work, but didn't offer suggestions for a better plan. That phone call was really fun. It was about 2 hours of Jane repeating herself over & over about why we couldn't do ANYTHING that John & I wanted. I was so stressed that John poured me a beer.
3) Refused to work with my wedding coordinator on planning. Her excuse was that wedding photography is an intimate process & she needs to work directly with the bride.
4) I wanted downtown pictures. She talked me out of this because she didn't want to do it. Her reasons were that she could be creative near the church, and we could have more time. Great, but not really what we wanted.
5) I wanted to see John before. She had a problem with this, too, saying that she can't "capture the magic" of that first moment we see each other. I wanted to see him before for my own sake, not to help out with the photography. Besides, isn't this my call anyway?
6) Jane has a plan for all weddings she does. She does not like it when you deviate from this plan. She photographs the girls, then the guys, then the wedding, then all the bride/groom, family, and group shots after this. I did not want it this way, because I did not want to miss an hour of our reception. She did not like this and opposed me every chance she got.
7) Called me the day of the wedding to let me know that she'd be there at 4:00. Several problems with this-- why is she calling me?? We agreed on 3:30 earlier, but she chose to ignore my email confirming this.
8) During said phone call, she let me know that the church had some crazy rules and really bad lighting, but she'd do the best she could. Prior to signing the contract, I had gone over these concerns, and she said it was no problem. Plus, why are we telling me this two hours before we meet the day of the wedding?
9) We waited 2 months before our pictures were ready to be viewed online. I asked her to send me some "preview shots" after about a month, but she never responded.
10) She sent my mother in law a pic with a blurry groom. When she emailed Jane about this, she said that's the way it was online & made no offer to replace it. She actually said that it was an "artistic expression" showing movement. Let me tell you, I know what movement in photography looks like and this pic was not that way.
11) When I heard about the blurry pic, I realized that I had ordered the same one, so I emailed her to switch it to a different one. The pics were no longer available for online viewing at this point, and I had no CD of the pics, so I described which one to send me. When I got the pics, I was pretty mad that the blurry pic was not replaced. I called Jane, who first said that she did not get the email. Then, she changed her story and said that she has been very busy. She wears a lot of hats... mother, business owner, etc.... and it's hard to keep up. Um, isn't that your job?? She then told me that she needed a photo number, that she couldnt' possibly go through all the pics and know which one I had described. When I told her that I didn't have access to the picture numbers, she said, "Don't you have your disk?" Um, no, you never sent it. She then said that she usually sent the disk with the album, which I didn't have either.
12) I had complained to Jane that it was difficult to see some of the shots online, and asked if she would let me know if any of the pictures that I chose weren't suitable for printing. She assured me that she would. In one of the family pictures, my mother in law & I are blurry. Yes, we are standing still, so there is no action in this photo. I asked her to send me another (her choice since I couldn't see the pictures online). She sent me one where MIL has closed eyes. I do have to say that she called me to see what to do, and said that MIL has a lazy eye. John ended up photoshopping her to have open eyes from another picture. Seriously, the only one where she has open eyes is blurry. Closed eyes, not Jane's fault, blurry picture, her fault.
13) We waited 6 1/2 months to get our album. It's about a 7 on a scale of 1-10. I like it that it documents our day. I don't like it that there are several blurry pictures, a few red eyes, and a couple sitings of that awful fever blister that appeared mid wedding week. A lovely way to remember it, I guess!!

Jane was one of the most difficult people I've ever worked with. During the phone call that I talked about, I did end up letting her know exactly what I thought of our pictures & her lack of professionalism. She apologized & gave me some lame excuses about how she took on more than she could handle last year, and was sorry that she neglected her work. She said that last year she had 40 brides & this year she was only taking on 20.

I'm obviously not a lawyer, but to me after reading through it, I get the hunch that she didn't in fact say anything other than fact or opinion, but again, I'm not a lawyer. Any opinions?

 

[quincy]

Thanks for providing a copy of the review, GraphicVision. It is not at all the scathing review I expected.

First, courts look at the totality of the circumstances surrounding the statement and why it was made to determine how a reasonable person would view the statement. The courts base their determination on factors that include the language used, whether the statements can be proved true or false, and the context.

The content and tone of your wife's review, when taken as a whole, seem to signal to a reader pretty clearly that the statements reflect the opinions of your wife. It is a negative review but the opinions expressed appear to be supported, for the most part, by the facts of your wife's experience.

There are a couple of areas where your wife strays from fact and opinion, however, and makes generalizations about the photographer's business practices (examples in #6 and #11) and she makes a few assumptions that reflect poorly on the photographer (an example in #7). These are the areas that could give your wife problems if the photographer decides to sue. In addition, a lot of the facts involve conversations with the photographer that may be remembered differently by the photographer, but these should not weigh too heavily in any court's decision.

On the whole, I think a "reasonable person" would view what your wife wrote as opinion. But what I think and what a court decides are not necessarily the same.

If the photographer can provide evidence that she has lost business as a direct result of the review, and the lost business and the hit to her personal reputation are sufficient enough for her to believe spending multi-thousands of dollars to pursue a defamation action is worth it, then your wife may be served with a complaint. I am not convinced this will happen - an attorney will probably advise the photographer a lawsuit win would be a longshot at best - but it could.

Again, your wife should consult with an attorney in Arizona for a more thorough review of the review, and should have legal representation if she is served with a complaint. The defenses your wife has to any suit are strong ones - truth and opinion supported by the First Amendment right to criticize and comment. If the court has any doubt as to whether statements made are defamatory, the court will always err on the side of free speech.

And, as an aside, the following is an example of how an attorney would write a completely safe review. Abraham Lincoln said this: "People who like this sort of thing will find this is the sort of thing they like."

Good luck.

 

[GraphicVision1]

Again, quincy, thank you so much for your response.

I like a lot of what you wrote, but of course there are the gray areas you mentioned where what you, I, an attorney or the court might think is opinion or generalization could vary greatly, so that scares me a bit.

I never did get a call back from her "attorney". I figure that it was most likely a false threat, that it might indeed be her attoney for business matters, but she didn't contact him regarding this issue. One of the reasons I believe this is because she kept throwing around the term "slander" when, as you previously mentioned, the term really should be "libel". I would hope if she really did contact her attorney about this matter then he'd at least advise her of the correct term.

We haven't heard anything back from the photographer either, so we're pretty sure the action of taking down the negative review is enough to resolve matters. Of course there is that nagging voice in the back of my head saying maybe we folded too quickly and should have kept the post up and left the ball in her court, but since it seems to be resolved for the moment I guess it was the best decision just to take it down. The thread had been unactive for months anyway.

Again, thanks so much for your advice, quincy. Indeed if anything further happens regarding my wife being served with any legal notices, we will definitely contact an attorney in Arizona.

 

[quincy]

You're welcome, GraphicVision.

And I wouldn't worry too much about anything at this stage. Negative reviews often spawn threats of lawsuits - but the threats are rarely carried out.

Good luck.