Is this defamation per se?

[mrsjohnson]

Your website is an attractive one and your handcrafted products are beautiful. I noticed that out of 5 possible stars, your business has a 4-and-a-half star rating - the missing one-half star obviously is the result of the one negative review you received that was written by your current customer.

Thank you so much for that! I did the website all on my own with very little experience, had to teach myself and it still far from done. And we get so many positive responses from our clients that never become and an actual review, which is a shame because if they all posted them, it would squash his.

I've not slept for a couple of days and your response with the others has made me feel alot better, especially the comments about my new response to this review. I do feel more positive about it all for sure. And I'm willing to share everything including the full reviews and my original responses, his written claim to Paypal, etc. if anyone is interested but I suspect ya'll are too busy for that!

 

[mrsjohnson]

One last thing...

I'd bet a case of beer that he has already had the problem fixed and is using the door.

 

[quincy]

I'd bet a case of beer that he has already had the problem fixed and is using the door.

Ha. If I thought you would lose the bet, I'd take you up on it. But I imagine you are right - and my wife would then question why I was having a case of beer delivered to Georgia.

I would probably give the fellow some time and space to consider your offer to resolve the issues he has with the door before you consider taking any other action. This will also give you some time to see how the one negative review affects your business (if it does - it is possible that others will read the review and see him as being unreasonable).

If you have the chance to post back with what happens in the next few days (or weeks or months), we will be interested in hearing about it. In the meantime, I suggest you re-read and concentrate on all of the really nice reviews you and your business have received. Because consumers tend not to publish positive reviews as often as they do negative reviews, the fact that you have had so many customers willing to take the time to tell you how much they like you and your company says a lot.

Good luck to you and your husband, mrsjohnson.

 

[quincy]

mrsjohnson, because you inquired in another thread about "no negative review" (non-disparagement) clauses, I thought I would provide information on them here for you (I provided much of the same information in the other thread).

Forum member LdiJ mentioned in the other thread that she would be likely to avoid a business that had a non-disparagement clause, saying she would question the reason behind the business needing one. Her reaction is shared by many. These clauses are not liked by consumers - so much so that California enacted a law that makes clauses that restrict the ability of consumers to post a review illegal. There are civil penalties for companies who try to enforce the clauses. And there is a bill in the US Senate, "The Consumer Review Freedom Act," that would also prohibit the use of clauses that prevent consumers from communicating to others about the goods or services of a business.

Yes, negative reviews negatively impact a business. That is the reality. A paper written by Michael Luca for the Harvard Business School, "Reviews, Reputation, and Revenue: The Case of Yelp.com," was based on his research into the impact of reviews on businesses (restaurants), and the research showed that each rating star on Yelp equated to a 5% to 9% effect on a restaurant's revenues.

When a review is not only negative but also false and defamatory, the business (or individual) negatively reviewed has the legal option of filing a defamation complaint against the consumer who has written the review. But preventing a consumer from writing the review is a restraint on speech and this country does not like prior restraints too much.

Here are links to access the Yelp paper by Luca, and to the text of The Consumer Review Freedom Act:

"Reviews, Reputation, and Revenue: The Case of Yelp.com:" http://hbswk.hbs.edu/item/the-yelp-factor-are-consumer-reviews-good-for-business

The Consumer Review Freedom Act: http://www.commerce.senate.gov/public/_cache/files/182837c8-cdc6-4eba-8c1f-fce3df22a26f/863E0F2A79287FB92CDF9975761E6C64.consumer-review-freedom-act.pdf

I know you have been mulling over whether to file a defamation suit against your negative reviewer. The customer seems to have written his review with the sole purpose of harming your business. I will post back later (probably not until Monday) with what you will need to support a claim in South Carolina - which is the state where I believe you are more likely to have success with a defamation suit over a negative review. But you will want to review all of the facts with a defamation attorney in your area (or in South Carolina) and then weigh carefully the pros and cons of a suit.

Your goal should be to preserve your business and its customer base, and recover from any harm the one negative review might have caused. I am not convinced that a defamation suit against a customer is the best course of action for you. Like the non-disparagement clauses that customers appear to hate, they would probably not look favorably on a business that sues a customer over a negative review, even when the review is false and defamatory. I think a lawsuit should be a last resort, at any rate, and only if you and your business continue to experience a negative fallout from the customer and his review.

 

[mrsjohnson]

mrsjohnson, because you inquired in another thread about "no negative review" (non-disparagement) clauses, I thought I would provide information on them here for you (I provided much of the same information in the other thread).

Forum member LdiJ mentioned in the other thread that she would be likely to avoid a business that had a non-disparagement clause, saying she would question the reason behind the business needing one. Her reaction is shared by many. These clauses are not liked by consumers - so much so that California enacted a law that makes clauses that restrict the ability of consumers to post a review illegal. There are civil penalties for companies who try to enforce the clauses. And there is a bill in the US Senate, "The Consumer Review Freedom Act," that would also prohibit the use of clauses that prevent consumers from communicating to others about the goods or services of a business.

Yes, negative reviews negatively impact a business. That is the reality. A paper written by Michael Luca for the Harvard Business School, "Reviews, Reputation, and Revenue: The Case of Yelp.com," was based on his research into the impact of reviews on businesses (restaurants), and the research showed that each rating star on Yelp equated to a 5% to 9% effect on a restaurant's revenues.

When a review is not only negative but also false and defamatory, the business (or individual) negatively reviewed has the legal option of filing a defamation complaint against the consumer who has written the review. But preventing a consumer from writing the review is a restraint on speech and this country does not like prior restraints too much.

Here are links to access the Yelp paper by Luca, and to the text of The Consumer Review Freedom Act:

"Reviews, Reputation, and Revenue: The Case of Yelp.com:" http://hbswk.hbs.edu/item/the-yelp-factor-are-consumer-reviews-good-for-business

The Consumer Review Freedom Act: http://www.commerce.senate.gov/public/_cache/files/182837c8-cdc6-4eba-8c1f-fce3df22a26f/863E0F2A79287FB92CDF9975761E6C64.consumer-review-freedom-act.pdf

I know you have been mulling over whether to file a defamation suit against your negative reviewer. The customer seems to have written his review with the sole purpose of harming your business. I will post back later (probably not until Monday) with what you will need to support a claim in South Carolina - which is the state where I believe you are more likely to have success with a defamation suit over a negative review. But you will want to review all of the facts with a defamation attorney in your area (or in South Carolina) and then weigh carefully the pros and cons of a suit.

Your goal should be to preserve your business and its customer base, and recover from any harm the one negative review might have caused. I am not convinced that a defamation suit against a customer is the best course of action for you. Like the non-disparagement clauses that customers appear to hate, they would probably not look favorably on a business that sues a customer over a negative review, even when the review is false and defamatory. I think a lawsuit should be a last resort, at any rate, and only if you and your business continue to experience a negative fallout from the customer and his review.

Thank you!

 

[mrsjohnson]

Update

I woke up this morning and now the wife has posted a negative review on Facebook and the husband additional reviews on Kudzu and Google (where we only had one postive review to begin with). So they have tag teamed up against us.

I'm in the process of creating a document that shows all the correspondence between us and clearly shows that they lied to Paypal that we had not been in contact with them. What I'm hoping this will accomplish is that some of these sites might force them to modify their review or hopefully remove it when they see that we have actually done all the we can do to try and resolve this issue and that now, they are acting in malice. I'm not confident this will work however but I suppose it is worth a shot.

Whoever said the customer is always right is wrong. There are some people that walk this earth who are pure evil and giving into them and letting them abuse you is not going to help anything either. It only encourages them to continue to take advantage of people because they think they will always win and get away with it. Here is a link to a good article about this: http://www.forbes.com/sites/jaysondemers/2014/09/02/no-the-customer-is-not-always-right/

I've only contacted one attorney who didn't call me back so I guess I will make some more calls on Monday.

 

[quincy]

I woke up this morning and now the wife has posted a negative review on Facebook and the husband additional reviews on Kudzu and Google (where we only had one postive review to begin with). So they have tag teamed up against us.

I'm in the process of creating a document that shows all the correspondence between us and clearly shows that they lied to Paypal that we had not been in contact with them. What I'm hoping this will accomplish is that some of these sites might force them to modify their review or hopefully remove it when they see that we have actually done all the we can do to try and resolve this issue and that now, they are acting in malice. I'm not confident this will work however but I suppose it is worth a shot.

Whoever said the customer is always right is wrong. There are some people that walk this earth who are pure evil and giving into them and letting them abuse you is not going to help anything either. It only encourages them to continue to take advantage of people because they think they will always win and get away with it. Here is a link to a good article about this: http://www.forbes.com/sites/jaysondemers/2014/09/02/no-the-customer-is-not-always-right/

I've only contacted one attorney who didn't call me back so I guess I will make some more calls on Monday.

I still intend to post with information for you on defamation laws and cases out of Georgia and South Carolina, but that will probably have to wait until Monday when I have a concentrated amount of time to post.

For now, however, I wanted to advise you that you should be trying to support damages by keeping track of customer calls, contacts and sales to see if there is a difference between pre-negative review activity and post-negative review activity. Any decline that you notice can be used as evidence of reputational injury suffered by your company.

I am sorry that the wife is now being unreasonable. I think you are smart to consult with a defamation attorney - you should probably set up initial consultations with more than one attorney to begin with.

I hope you are able to put some of this aside and enjoy your weekend.

 

[mrsjohnson]

Learning from mistakes

Reading back through this thread, I have questions for those that think that much of if not all of this has resulted from me "digging in my heels" and being inflexible. Keep in mind that this particular customer asked us for a full refund AFTER filing a dispute/claim with PayPal. His charge in the claim was that the product was not as described AND that we had not been in contact with him to resolve it which was an outright lie. Are we suppose ignore the fact that 1. The customer made a choice to try and force us to refund without asking us for one first and without giving us the opportunity to fix problems first? 2. That the customer submitted false evidence in order to force a refund?

As a business, we must fight these claims because a lost claim or dispute affects us financially and ruins our credibility. Right now we're too small to process credit cards on our own. If we would have taken the stance that the customer is always right and not fought the claim, then we would have more than likely been out the money and our product. What then? We enable someone to steal from us and cut our losses? I'm not comfortable with that and I'm not convinced this is the right thing to do from a business perspective either. And if anyone else thinks it is, why then do we attempt to stop anyone that tries to steal anything? Should we let the shoplifters go for fear of retaliation?

I hope those of you that think that I was being the unreasonable one here also understand that if this customer would have actually contacted me and asked for a refund that he would have gotten a refund right? I would have given him a full refund and picked up the door at a later date, no reason to mistrust that he wouldn’t return the product at that point. After all, because of how this went down, what real evidence did I have that this customer wasn't simply trying to get something for nothing? When the customer lost the first dispute and he was forced to converse, his demand was to first and foremost give him a refund and then he would allow us to fix the problem and then take the door. This is where I dug my heels in because at that point, I had zero reason to believe that I could trust him at his word. And it didn't make sense why we couldn't simply make the exchange, door for refund, at the same time. Actually it still doesn't.

I’m sincerely trying to learn from this and look at it from an outsider’s perspective. I think the biggest mistake that I’ve made is to respond emotionally but other than that, only a much large corporation would be able to just blow this off. There are only six of us and those four that work for us are like our family.

 

[LdiJ]

Reading back through this thread, I have questions for those that think that much of if not all of this has resulted from me "digging in my heels" and being inflexible. Keep in mind that this particular customer asked us for a full refund AFTER filing a dispute/claim with PayPal. His charge in the claim was that the product was not as described AND that we had not been in contact with him to resolve it which was an outright lie. Are we suppose ignore the fact that 1. The customer made a choice to try and force us to refund without asking us for one first and without giving us the opportunity to fix problems first? 2. That the customer submitted false evidence in order to force a refund?

As a business, we must fight these claims because a lost claim or dispute affects us financially and ruins our credibility. Right now we're too small to process credit cards on our own. If we would have taken the stance that the customer is always right and not fought the claim, then we would have more than likely been out the money and our product. What then? We enable someone to steal from us and cut our losses? I'm not comfortable with that and I'm not convinced this is the right thing to do from a business perspective either. And if anyone else thinks it is, why then do we attempt to stop anyone that tries to steal anything? Should we let the shoplifters go for fear of retaliation?

I hope those of you that think that I was being the unreasonable one here also understand that if this customer would have actually contacted me and asked for a refund that he would have gotten a refund right? I would have given him a full refund and picked up the door at a later date, no reason to mistrust that he wouldn’t return the product at that point. After all, because of how this went down, what real evidence did I have that this customer wasn't simply trying to get something for nothing? When the customer lost the first dispute and he was forced to converse, his demand was to first and foremost give him a refund and then he would allow us to fix the problem and then take the door. This is where I dug my heels in because at that point, I had zero reason to believe that I could trust him at his word. And it didn't make sense why we couldn't simply make the exchange, door for refund, at the same time. Actually it still doesn't.

I’m sincerely trying to learn from this and look at it from an outsider’s perspective. I think the biggest mistake that I’ve made is to respond emotionally but other than that, only a much large corporation would be able to just blow this off. There are only six of us and those four that work for us are like our family.

My boss's philosophy is that if you have to spend more than 30 minutes on it, and the customer has a legitimate gripe and is not being cooperative about letting you fix it, (which this customer did and was) then just give them back their money. Also, never do business with them again. Now, for your industry you might want to adjust the 30 minutes to some other suitable length of time, but its still a valid point. Otherwise you end up with bad word of mouth and bad reviews.

In our industry (tax) its kind of worse than yours and the REALLY unreasonable people don't just want their money back, or their money back plus penalties and interest, they also want you to pay any tax that they owe as well. That one we do not budge on because its just not proper. Do we sometimes refund the fees of people who are not being at all reasonable? Yes, sometimes we do. Do I like it? No.

 

[mrsjohnson]

My boss's philosophy is that if you have to spend more than 30 minutes on it, and the customer has a legitimate gripe and is not being cooperative about letting you fix it, (which this customer did and was) then just give them back their money. Also, never do business with them again. Now, for your industry you might want to adjust the 30 minutes to some other suitable length of time, but its still a valid point. Otherwise you end up with bad word of mouth and bad reviews.

In our industry (tax) its kind of worse than yours and the REALLY unreasonable people don't just want their money back, or their money back plus penalties and interest, they also want you to pay any tax that they owe as well. That one we do not budge on because its just not proper. Do we sometimes refund the fees of people who are not being at all reasonable? Yes, sometimes we do. Do I like it? No.

Yeah in this case, we're not going to give the customer their money back and let them keep our product. Maybe I'm being hardheaded on this but I'm not bending, especially not now. For all I know, they have a whole house full of products that they've gotten this way and they make their way through life, screwing people over and paying little to nothing for everything. Since their own credit card company denied their claim and sided with us, at least someone, somewhere thought that we weren't being unreasonable.

On a side note and completely off topic, if you're experiencing insomnia, try taking some Holy Basil (Tusli) before bed. I took two capsules of the Solaray Brand and got the best night's sleep I had in months.

 

[quincy]

... Are we suppose ignore the fact that 1. The customer made a choice to try and force us to refund without asking us for one first and without giving us the opportunity to fix problems first? 2. That the customer submitted false evidence in order to force a refund?

What you need to do is balance the pros of fighting this customer versus the cons of doing so. You have to decide if fighting this customer is going to be worse for your business or is going to help it.

Although I have read the reviews and understand how harmful (and unreasonable) they are, I am still not convinced that fighting this customer in court is going to be good for you financially or good for the credibility of your business. It is often best to just let the customer "win" whatever victory they are looking to win, and move on.

For a defamation claim, you will want to be able to prove the falsity of what has been posted about you and your company. If you can show that the customer wrote his review knowing that what he wrote was false, or with serious reservations about its truth, you have a better chance in court of collecting damages. But I see you as being up against a "substantial truth" defense (not necessarily truth without embellishments and false facts, but truth as an upset customer sees it).

You have to determine as best you can how a court/jury will view the statements made by the customer. I think this will be your most difficult challenge.

You should be able to show how, and how much, you and your business suffered from the statements made in the negative review itself (as separate from how or how much you and your business have suffered as a result of your handling of the customer complaint).

That your business suffered some reputational harm is not going to be too difficult to prove. Negative reviews, even when truthful, will negatively affect a reputation. You will want to be able to show actual losses, however - out-of-pocket or tangible losses - which is why I have suggested to you that you track customer calls and sales now so you can compare customer activity to activity before the negative review was posted.

This will give you the best indication of how the negative review is being read by consumers. Are the consumers interpreting the statements in the negative review as reflecting accurately on your business, or are they discounting the review as being written by an unreasonable and slightly-off customer who is trying to flex muscles for personal reasons that have nothing to do with the product or the service he received?

Although general damages can be awarded for injury that is incapable of being translated into a money valuation (i.e., reputational injury, mental suffering and anguish, personal humiliation ...), you do not want to rely on these alone if you go to court.

South Carolina is a bit of a mess when it comes to defamation laws. There are conflicting court decisions that make it difficult to assess how any one court will handle a case before it. Some cases clearly favor the plaintiff (even against all reason and evidence) whereas others are pro-free-expression to the point where any defamation claim is likely to be looked at as stifling a defendant's right to speak (even against all reason and evidence). I was going to provide some case law for you to review but, because of what I found, I am not sure now that this will be helpful.

I think you really need to sit down with an attorney in either Georgia or South Carolina to go over all of the facts with you (and, again, I still believe South Carolina may be the proper jurisdiction to hear your case instead of Georgia, despite the haphazard nature of decisions from the State - but the attorney you see might feel differently).

Good luck.

 

[mrsjohnson]

For a defamation claim, you will want to be able to prove the falsity of what has been posted about you and your company. If you can show that the customer wrote his review knowing that what he wrote was false, or with serious reservations about its truth, you have a better chance in court of collecting damages. But I see you as being up against a "substantial truth" defense (not necessarily truth without embellishments and false facts, but truth as an upset customer sees it).

What about the false statement that he made to Paypal? Is that not defamatory even though it is not public, simply made to a third party? And if it's not, then I don't think I have a good grasp on what defamatory is. I need the "for dummies" version.

Making my attorney call list today.

 

[Zigner]

What about the false statement that he made to Paypal? Is that not defamatory even though it is not public, simply made to a third party? And if it's not, then I don't think I have a good grasp on what defamatory is. I need the "for dummies" version.

Making my attorney call list today.

What are your damages caused by the false statement to Paypal?

 

[mrsjohnson]

South Carolina is a bit of a mess when it comes to defamation laws. There are conflicting court decisions that make it difficult to assess how any one court will handle a case before it. Some cases clearly favor the plaintiff (even against all reason and evidence) whereas others are pro-free-expression to the point where any defamation claim is likely to be looked at as stifling a defendant's right to speak (even against all reason and evidence). I was going to provide some case law for you to review but, because of what I found, I am not sure now that this will be helpful.

Can I get the names of the attorney(s) that won their case? Maybe I should start with calling them.

 

[Zigner]

Can I get the names of the attorney(s) that won their case? Maybe I should start with calling them.

This forum is not a referral service...