Don’t Ask To Get SLAPPed: How To Avoid Social Media Lawsuits

Before you post a negative review on Yelp, Angie’s List, Facebook or any other online site, review it carefully to make sure you aren’t including the most common phrases that get social media users sued.

My friend just got sued. Like a growing number of social media users, bloggers, and ordinary people who post reviews on Yelp, Angie’s List or other online sites, she didn’t understand the difference between protected free speech and defamation, tortious interference, product defamation, contract interference or one of the other legally prohibited kinds of “speech” that are fueling a huge number of lawsuits over social media posts.I saw the original post a few weeks ago, and called to suggest a minor rewrite because the company she wrote about is known to file SLAPP suits against those who attempt to expose their shoddy business practices. But she asserted that she had “told the absolute truth, so there’s no way that the publisher could prevail.”

“Prevailing” isn’t usually the point of a SLAPP suit. Shutting up a critic by buying them in expensive legal paperwork is the point. Wikipedia defines a SLAPP suit this way: “A strategic lawsuit against public participation (SLAPP) is a lawsuit that is intended to censor, intimidate and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.”

In a defamation, product defamation, or tortious interference lawsuit, the burden of proof is on the defendant. So when you get sued, hiring a good lawyer is essential and that can get very expensive. My excellent attorney charges $280 per hour, which is fairly reasonable compared to what others charge.

Many times, the people filing a SLAPP suit know that they can’t win if it goes to trial.  But that isn’t really the point. The people who file the SLAPP suits want the offending comments removed.

A SLAPP suit can cost upwards of $20,000 to defend — even more if it goes to trial. The plaintiff’s filing the suits are counting on the fact that most of us can’t afford to defend against a SLAPP suit. The goal is to get the defendant to settle by removing the offending comments, issuing an apology, or paying a “negotiated settlement” amount to make the litigation go away.

It’s nearly impossible to find an attorney who can afford to handle a SLAPP suit on a contingent fee or at no cost (pro bono). That’s because the strategy of the lawyers who file the suits is to drag it out as long as possible, with motions, depositions, and requests for information (discovery) that take time and cost hard dollars for the attorney handling the case as well as the person being sued.

So the best way to handle a SLAPP lawsuit is to do your best not to become the subject of one. How you phrase something matters — a lot — in cases like this.

Don’t Ask for a SLAPP Suit

Here’s what my friend wrote about the publisher who sued her:

“XXXXX did an awful job of producing my book. This is a warning to anyone wanting to publish a book. DO NOT USE XXXXX, XXXXX is a rip-off operation.”

Had she written, “I thought that this publisher did an awful job of handling my book, and I wish I had never worked with them,” it could have reduced the chances of her being sued. Why? Because what she wrote (“do not use…”) is arguably tortious interference, contract interference, or product defamation. All three of those are common causes of litigation with lots of precedents, and lots of cases on file in nearly every state.

What I suggested (“I wish I had never worked with them”) is an opinion, usually protected free speech under the First Amendment to the U.S. Constitution. I am (generally) entitled to my opinion, and to express it.

But when I state something as a fact (“They did a bad job” as opposed to “I was not pleased with their work” or “The contractor used substandard material” instead of “I don’t think that the Chinese drywall used in my construction was good quality…”), then it becomes a matter of proving a fact — which is a lot harder to do than most people think.

I’ve been collecting copies of SLAPP suits and cease and desist letters threatening a SLAPP suit for the last few years. If you’ve received such a letter — or sent one — or been sued, please send me yours. And whatever you do, don’t throw it away or ignore it on the mistaken belief that it’s a joke or you don’t have anything to lose even if they win.

A legal judgment will ruin your credit, and it can take away money you desperately need later. In many states a settlement from an insurance policy, money you receive from selling your house, tax refunds, a lottery win, or even future earnings or retirement payments may be garnished or attached to pay legal judgments.

Avoid Phrases That Attract Litigation

Based on an unscientific review of about 200 such lawsuits and letters filed against individuals by businesses since 2007, I find four common elements. The first is profanity and pejorative names.

Fighting words, name-calling, and profanity crop up in a surprisingly high number of SLAPP suits. No one wants to be called names, so if you want to post your views online while minimizing your risk of being sued, avoid getting personal, and avoid the kind of language your mother warned you about.

Three phrases that seem to crop up most often in the suits (based on an unscientific review of about 200 lawsuits filed by businesses against individuals for online reviews or social media comments) are:

• WARNING: Beware of… (or the variations: Stay away from…Don’t do business with…Do not hire…Do not buy…Do not waste money…)
• SCAM ALERT: (Company or individual’s name) is a con artist… (or the variations: I got taken in by…These scammers took my money…Don’t trust…)
• (Company or individual’s name) lied (or the variations: misrepresented…promised but did not deliver…ruined my property description by doing shoddy work…did shoddy work…is the worst company description…)

When I first talked to my friend about what she’d written on her blog, she said plaintively, “But I don’t want any other writer to go through what I went through. I am doing this to save other people! I wish somebody had warned me!”

That’s something I hear often from people who’ve been hit with a SLAPP suit. For the most part, they thought they were doing a public service by warning other people about a business they had a bad experience with.

The common phrases and variations listed above have one thing in common: they’re written to steer business away from the company instead of simply stating an opinion. That’s the problem. When you tell other people not to do business with a company, you’re crossing the line into lawsuit territory.

One thing to take special note of: don’t attempt to disguise an assertion of fact as an opinion in an attempt to avoid a lawsuit. For example saying, “It is my opinion that John Doe stole my credit card and ran up a charge on my credit card” isn’t likely to be viewed as an opinion by anyone reading it, including a judge.

Opinions Are Protected, The “Truth” Isn’t

It’s a common belief that as long as you tell the truth, you can’t be sued — or, if you are sued, you can’t be held liable. Unfortunately, proving exactly what the truth is can be costly, time-consuming, and a lot harder than you think.

Let’s say that I am unhappy with a haircut. If the salon sues me, claiming that what I said wasn’t true, and I need to prove the truth of what happened, I would need to be able to:

• Prove that I was in the salon on the day I said I was. (Receipt of payment, email confirming appointment, check-in on social media site, witness who saw me there, etc.)
• Prove that the hairstylist I said cut my hair was working that day, and cut my hair. (Same “proof” as the first item.)
• Prove that no one else touched my hair after I left the salon. (It’s hard to prove a negative!)
• Prove that the haircut provided was different than what I asked for or approved at the time. (Who keeps before and after photos of their hair? Records or writes down the instructions given to a hairstylist? Goes to the salon with a witness who can confirm what was said?)
• Prove that the haircut was substandard for some reason. (Exactly what was wrong? Too short? Uneven? Damaged hair? Photos and “expert testimony” may be needed.)

Even if I can prove those five elements, depending on how I wrote my negative review, the stylist might still win if he or she can prove that they suffered damages (loss of a job, loss of income, decreased bookings, etc.) as a result of my review.

The saving grace for many people who write reviews is that the people whose reputations were damaged may not have the wherewithal to find and hire a lawyer to sue on their behalf. But an increasing number of small businesses who find that a Google search on their business name turns up a negative review before anything positive about their business think it’s worth the money to sue as a way to get the offending comments removed.

There are reputation management firms that offer clients the documents they need to file small claims court suits on their own, and there are states where a “small claim” case can result in up to $15,000 in damages, with an automatic judgment if the defendant fails to show up in court.

The Electronic Frontier Foundation (EFF) offers an excellent guide to online defamation that outlines what you can — and can’t — say in an online review.

Context Matters, Too

Most of the “rules” for online comments and postings are subject to being interpreted in the context of where and when they were written. For instance, it matters how many times you post something. A single review might not be considered tortious interference, but posting the same rant on every online review site you can find and sending it to every local consumer reporter or letters to the editor site probably crosses the line between “expressing unhappiness over a transaction” and “trying to injure the reputation” of a person or company.

Taking revenge for something you are upset about or intending to cause financial harm to the person or business you’re writing about is another kind of “context” courts can consider. Unless you really want to get sued, don’t a business with statements like “I’m going to make it my business to tell everyone I meet what a crook you are” or “I am going to tell everyone not to do business with you” or even “If you don’t fix the problem you caused, I am going to ruin your reputation.”  All three of those phrases were used in emails produced in recent court cases over online reviews.

There are four kinds of statements that are considered libel per se — that is, unless you can prove them to be true against a very high standard of proof (which, as noted above, is hard to do) – doing any of these things will result in a judgment against you. Avoid statements that:

1. Charge any person with crime, or with having been indicted, convicted, or punished for crime;
2. Impute in him the present existence of an infectious, contagious, or loathsome disease;
3. Tend directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects that the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits;
4. Impute to him impotence or a want of chastity.

The first and second are pretty easy to understand. The third one gets many people into trouble with their online reviews. You may think that the installer who came to your home to hook up your new computer couldn’t tell a router from a plunger, but saying so is likely to result in a damage award if he shows up with his diploma from a reputable trade school or university, or even his certification from a vendor or the company where he works.

As for the last one, if you’re talking about someone’s sexual habits in an online review, you’re probably so far over the line on what’s acceptable that what you say about their chastity may be the least of your worries. Just don’t go there.

Note: A longer, more detailed version of this article appears on my personal blog, with more examples of the kinds of phrases to avoid as a way to minimize your attractiveness to a lawsuit-prone business. You can read the whole article here.  Additional information on SLAPP suits and lawsuits relating to online reviews and social media posts is available in these articles:

• 5 Easy Ways to Get Sued for Social Media or Blogging
• Court Says Online Reviewer Can Have Her Say — For Now
• The Legal Do’s and Don’ts of Social Media
• Yelping About a Bad Review? You’re Not Alone!
• 7 Things You Can’t Claim First Amendment Rights to Say

Disclaimer: I am not a lawyer; nothing in this blog post should be construed as legal advice. Consult a competent attorney licensed in your home state and knowledgeable about online legal issues before making any decisions about suing, or handling a potential lawsuit.

Photo credit: The photograph of the hands on the keyboard is by photographer Dee Lee.

  This article was written for Business 2 Community by Deb McAlister-Holland.
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Author: Deb McAlister-Holland

Follow @debmcalister

Deb McAlister-Holland is a Dallas-based marketing consultant who specializes in helping start-up technology companies grow.  Her personal blog addresses the odd places where technology and marketing intersect people's everyday lives.  She can be reached via email at this link and tweets as @debmcalister.
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