Forums like Angie’s List, Yelp, or even Yahoo Community Listserves allow homeowners and other contractor clients to recommend a contractor for a job well done. Just as often, however, disgruntled clients use these venues to vent about shoddy workmanship, defective construction, and unfinished contractor punchlist work. Although these forums seem safe and anonymous, anyone posting on these sites should be aware of the sometimes harsh legal consequences – and the fact that their posts (if untrue) could result in a successful defamation claim.
Recent Case Law: In Dietz Development, LLC v. Perez, Docket No. 2012-16249, Fairfax County Circuit Court, Virginia, a Virginia homeowner posted defamatory statements about a D.C. based contractor who performed work on her home – stating that his shoddy workmanship required extensive refinishing and insinuating that he stole jewelry from her home. The contractor posted a retort alleging that the homeowner retained or stole valuable goods from him and did not pay him for his work. He subsequently sued for defamation, claiming $750,000 in lost reputation and business contracts that were cancelled after the defamatory reviews were posted.
After a year of protracted litigation, a week-long trial and eight hours of deliberation, a jury returned an interesting verdict finding that the homeowner and contractor had both defamed each other. Accordingly, the jury rationalized that these acts offset each other and that no monetary award should be made to either side. However, while no monetary damages were awarded, monetary damage award will inevitably ensue as more of these types of cases go to trial.
If You Can’t Say Anything Nice . . . Accordingly, contractors should be wary of posting negative reviews of a client or other business or posting a retort to a negative review directed at them.
The Takeaway: Moreover, should you find yourself the subject of a negative review – do not impulsively strike back. While reviews that are fact or opinion based are not necessarily actionable, those containing untruthful allegations may be. Statutes, court procedures and case law protecting both anonymous online posters as well as the targets of their defamatory posts can vary widely from state to state. Moreover, given the ubiquitous nature of the Internet, you may find yourself in an unexpected legal jurisdiction. Accordingly, it is wise to engage an attorney who can 1) carefully review, document and preserve the negative reviews as evidence, 2) negotiate with website providers to remove the posts and 3) aid in identifying the often anonymous online poster. Finally, a contractor must also consider and weigh the effect of the negative review of his or her business online with the potential negative publicity associated with pursuing a previous client in court.
Jennifer M. Horn is a Partner at Cohen Seglias and a member of the Construction Group. She concentrates her practice in the areas of construction litigation and real estate.
Wendy R. Bennett is an Associate in the Construction Group.