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I live in an apartment building. I found an advertisement flyer on my car and I was annoyed. Inside the entrance of the building there is a "No Solicitation" sign. I'm not sure about the legality of the advertisement they did, but that isn't my question. I looked up their Facebook page and saw the same flyer posted in image form. I commented something along the lines of, "Where did I see this... oh that's right, they are plastered all over my and others cars even though there is a 'No Solicitation' sign posted in the entrance."

Two days later, I arrived home and saw some flyers littered around the parking lot. I decided to take a picture of them all and posted another message to the page: "Were you guys wondering what happens to the flyers? Here are the ones I could find (Picture collage of them all)"

Today I realize they deleted both of my comments without acknowledgement or apology. I got mad at this and posted a review to their page along the lines of, "I posted complaints about their illegal advertisement and they deleted them, I would not visit this place."

I was reading about people getting sued for online reviews, and I am now scared if I should have posted this because it might have a real effect on their sales.

I was about to post a similar comment to Google+ reviews, but I was unsure if sending out a full scale review attack by posting to different places is too aggressive. So here I am. Should I continue my path of hitting this company with my small complaints or delete the review and go home?

  • What's your goal? – user662852 Sep 18 '15 at 16:04
  • @user662852 My original goal was to stop them from advertising by posting flyers on people's cars, now my goal is to let other people know the business might be shady. – Sven Writes Code Sep 18 '15 at 16:53
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While @jqning is absolutely correct in stating that truth is always an "absolute defense" to a claim of defamation, keep in mind that truth can be a subjective thing. What is one person's version of the truth, may not be another's, even with regard to the same exact experience. Also, while "statements of opinion are not defamation" is typically regarded as true, it has very broad exceptions and is not something that can be relied on in isolation.

Defamation is generally defined as a false, published statement that is injurious to the plaintiff's reputation. An online posting, even on an obscure website, will likely be seen by a few people, thus satisfying the publication requirement.

A plaintiff cannot succeed in his or her online defamation claim if the defendant's defamatory statement is true. So, for example, if a customer posts a review of your restaurant on Trip Advisor claiming that there were roaches crawling around, you may sue them for defamation. You would then have to prove that there was no roach infestation, and thus, the defendant's statement was false. However, what if there was only one? What if he has a witness who saw it? His truth may be different from yours, and it is up to the trier of fact to decide. Also, getting sued, whether or not you prevail, is at minimum a pain and can be a very expensive ordeal.

Opinions are exempt? OK: Following that line of reasoning, restaurant owner shows he's had monthly inspections and prophylactic measures to ensure against pests and the exterminator testifies. The defendant, fearing he's in trouble now, claims that his assertion of roach infestation was just his opinion based on his experience. Opinions are privileged under the law of defamation, right? Not always!

Importantly, an opinion may be viewed, generally, as a statement of fact (employing the "reasonable person" standard) if it is something that is either provable or disprovable. What this means is that if the reasonable person would construe your statement to be factual, and not mere opinion, it will be deemed as such and if untrue then you're liable for defamation. The courts may interpret, "I think that [restaurant] has a roach infestation problem," as a statement of fact.

This has occurred in numerous cases where people think they can say what they want as long as they couch it as an opinion, with words like "I think..." or "In my opinion...". But when someone says something that factual in opinion form, that is not protected. So, if Jane says, "In my opinion Joe Schmoe is a pedophile..." without absolute proof that Joe is, in fact, a pedophile, then this is libelous (defamation if published or spoken to another). This is because the statement in and of itself is one of "verifiable fact couched in opinion" and it is so damaging to Joe's reputation that if it's not true it is libel per se (defamatory if published – meaning shared).

A statement of verifiable fact is a statement that conveys a provably false factual assertion, such as someone has committed murder or has cheated on his spouse.

While the law varies some, and sometimes substantially, from state to state, here are some often used examples arising from California courts. Libelous (when false):

  • Charging someone with being a communist (in 1959)
  • Calling an attorney a "crook"
  • Describing a woman as a call girl
  • Accusing a minister of unethical conduct
  • Accusing a father of violating the confidence of son

Not-libelous:

  • Calling a political foe a "thief" and "liar" in chance encounter (because hyperbole in context)
  • Calling a TV show participant a "local loser," "chicken butt" and "big skank"
  • Calling someone a "bitch" or a "son of a bitch"
  • Changing product code name from "Carl Sagan" to "Butt Head Astronomer"

Since libel is considered in context, do not take these examples to be a hard and fast rule about particular phrases. Generally, the non-libelous examples are hyperbole or opinion, while the libelous statements are stating a defamatory fact.

Modified photos that can be shown to scandalize persons or businesses are clearly defamation, and are quite popular on social media. So, for example, if you threw the flyers (I assume you didn't but as an example) all over, and then photographed and published your opinion about the business littering neighborhoods, this would be libelous. The less obvious and absurd the modification, the more likely it is that a court will find it defamatory. So, a picture of a woman with a man's naked torso photoshopped on will not be defamatory, a version photoshopped showing what is to be purported to be her naked body, is.

In your case, you face two issues that you should ask yourself: Is your opinion really verifiable (or non-verifiable) facts couched in words that try to make it opinion, or is it truly just your opinion. If fact, is it absolutely true? If the answer is yes, it's fact and yes, it's absolutely true, you're OK. Keep in mind though what I mentioned about truths differing: What if the business didn't know they were put there, or, what if they were placed on cars in a public place and blew in the wind? That could be a problem.

While you are most likely fine, you may want to just say, X business's fliers are all over the place, littering the neighborhood and (assuming you called and asked them to pick them up, or wrote them) they refuse to pick up the litter. It sounds like the statements you made are fine, because you don't say that the business littered, or that they put them there; you say they are "plastered" all over, but you don't accuse them openly. That isn't to say it wouldn't be found to suggest fact that they would have to show isn't true (or that they didn't get permission from the property owner).

My point is only that, in general, be careful. If he felt that you misrepresented what he did by way of distributing fliers, or if he thought you doctored the photo or set it up, he could sue you if he felt it damaged his business's reputation.

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    To your roaches in the restaurant example: If the restaurant owner has the burden of proof (because he's the plaintiff) to prove there were never roaches... wouldn't this be a (practically) impossible burden to meet? I mean... theoretically, unless he had a recording camera on every inch of every surface at all times, he could never prove there were no roaches, correct? Because the presence of roaches leaves behind evidence of roaches. (e.g., a witness.) But a lack of roaches leaves behind no evidence to use to prove a lack of roaches. This is correct, no? – Mowzer Sep 28 '15 at 7:43
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    No, because if he took reasonable steps, the burden is only a preponderance (what I say to a jury is 'just slightly more likely than not, even if only by a mere hair, that you believe Plaintiff, then you must vote X". So if he brings in a professional to testify they've inspected the premises and sprayed monthly just so a problem could never take root, that would be enough. – gracey209 Sep 28 '15 at 12:14
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    You don't have to prove a negative "beyond a reasonable doubt". It's is not like a criminal trial. Otherwise, @Mowzer you're right, nobody could ever prove their case. This is exactly why Civil trials are structured this way. Also, don't forget that the jury gets an instruction that they can give as much or as little credit to mere testimony as they feel the person's perceived veracity should enjoy. – gracey209 Sep 28 '15 at 12:17
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Truth is an absolute defense to defamation.

And statements of opinion are not defamation.

Those are two pieces of black letter law that can guide you.

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" I arrived home and saw some flyers littered around the parking lot. I decided to take a picture of them all and posted another message to the page: 'Were you guys wondering what happens to the flyers? Here are the ones I could find (Picture collage of them all)'"

You made a statement of provable (and proven) fact. While I'm not a lawyer, as a prospective juror I would say that you have a strong defense against defamation, unless you "modified" the scene in some way before you took your pictures.

Other than "modification," the danger would arise if you wrote a fact cast as opinion like "I think these guys are litterers," without the pictures to prove it. You proved your case as far as I can see. Good job.

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