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Suppose that a homeowner, Bob, had a contractor do some work in his attic. There was a fire safe in the attic with a couple thousand dollars in old coins. After the contractor left, Bob went into the attic and found that the fire safe had been broken open and the money was gone. When confronted, the contractor denied taking it. The only evidence that the contractor, specifically, broke into the safe was that it was discovered to be broken into shortly after the contractor left.

After Bob went to the police and was told that it was his word against the contractor's, he posted a negative review online recounting the facts. The review didn't directly say that the contractor stole the money, just that no one else was in the attic, no one else knew the money was there, and the money was gone after he left. Assume that Bob is telling the truth as he believes it.

Does the contractor have a valid claim against Bob for defamation (or any other claim)?

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  • Quick nitpick about your title: the situation you've presented is not just about the review being negative, it's also about it being based on inaccurate or unverifiable facts. Or, at least, that's how a court would see it. – David Z Mar 16 at 2:03
  • Your question got some interesting answers, so I've tried to rewrite it to match the answers, but as more of a general law question. – Ryan M Mar 17 at 1:53
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Can you be sued for publishing a negative review of a contractor

Yes, because the import of your review suggests that the contractor stole the coins. See Bellemead, LLC v. Stoker, 631 S.E.2d 693, 695 (2006):

a court looks to "the plain import of the words spoken" in order to ascertain whether the words constitute slander per se. [..]. To be slander per se, the words "are those which are recognized as injurious on their face — without the aid of extrinsic proof.

(citations omitted, quotation marks in original).

Even prefacing your narrative with language such as "I think" or "in my opinion" might not suffice to preempt that import. See Milkovich v. Lorain Journal Co., 497 U.S. 1, 18-19 (1990):

If a speaker says, "In my opinion John Jones is a liar," he implies a knowledge of facts which lead to the conclusion that Jones told an untruth. Even if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact. Simply couching such statements in terms of opinion does not dispel these implications; and the statement, "In my opinion Jones is a liar," can cause as much damage to reputation as the statement, "Jones is a liar."

Accordingly, you will need evidence that supports the conjectures you portrayed in the review. In this regard, the police's response suggests that you have no evidence with which you could avail yourself of the defense of truth.

The contractor's position would be reinforced if the narrative in your review omits the police's response. That is because your decision to withhold that information tends to deprive the contractor of the benefit of the [readers'] doubt.

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    An opinion based upon a disclosed factual basis isn't actionable on that theory. – ohwilleke Mar 16 at 2:12
  • @ohwilleke Ultimately the matter will boil down to the exact language in the OP's review, but the statements "the fire safe had been broken open and the money was gone. I confronted the guy." are statements of fact (not of opinion) with an incriminatory import. That placed on him the burden of preemptively neutralizing that import. I presume that, had the OP been cautious enough to do so, he would have reflected it in this post just like he mentions here that "I never said he stole from me". – Iñaki Viggers Mar 16 at 11:56
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    If the facts are true and disclosed, incriminatory import is irrelevant. Truth is a defense there. There isn't implied knowledge of additional facts that are not disclosed which might be false statements of fact. Defamation claims are strongly disfavored due to First Amendment considerations so a defamatory statement has to be very blatant. Also, there is a strong argument that the heightened standard applicable to "matters of public concern" apply to a review in a forum created for that purpose. – ohwilleke Mar 16 at 19:27
  • @ohwilleke "incriminatory import is irrelevant". It is relevant even if the juxtaposed facts are true, in part because the intent is to impress an idea about contractor's reputation. "standard applicable to "matters of public concern" apply to a review in a forum created for that purpose". That is quite a stretch here. See Mathis v. Cannon, 573 S.E.2d 376,382 (2002) ("[what] defines a dispute as a public controversy [...] [is] whether the issue generates discussion, debate, and dissent in the relevant community", brackets added). – Iñaki Viggers Mar 16 at 21:53
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    @IñakiViggers That may be (rather surprisingly) true in Pennsylvania, but it's not true in Georgia. See, e.g., law.justia.com/cases/georgia/court-of-appeals/2003/…: "The burden of proving falsity is on the plaintiff" – Ryan M Mar 17 at 12:06
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You could be sued, because anyone can be sued for anything.

He couldn't win. You stated truthful facts and an opinion whose factual basis is disclosed.

Neither are actionable as defamation. To prevail he would have to show that you made a false statement of fact, or that your opinion implied a false statement of fact based upon undisclosed facts.

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  • Would this be true even if the homeowner made an honest mistake of fact, such as if they forgot that they had mentioned the safe's existence to their shady friend? – Ryan M Mar 17 at 1:56
  • Good faith belief is a complete defense to a defamation claim involving a honest mistake of fact in an affirmative representation about a matter of public concern, a matter involving a public figure being defamed, or a media defendant. Realistically, the matter of public concern prong would be the only viable issue here and a close one. But since the honest mistake of fact is a non-disclosure and not a fact asserted to be true, and the facts asserted were true, still probably no liability. Nothing prevents the person about whom the review is made from telling his own story to say more. – ohwilleke Mar 17 at 22:45
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An accusation doesn't have to begin "j'accuse!" for it to be both intended as one and interpreted as one.

You mentioned the missing money and you linked the contractor to the fact that it was missing as part of your review - thats a clear insinuation that you think the contractor took the money, so its as good as an outright accusation.

Given you made it in writing in a public setting, thats defamation.

As to whether the contractor has a case against you, thats specific legal advice and you need a lawyer for that. For some non-legal but basic human advice, remove the review, apologise profusely to the contractor and try and make it up to them - or come up evidence to prove your case against them.

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    Apologizing is usually a horrible idea, because it can be interpreted as an admission of guilt. Simply removing defamation does not make a lawsuit go away if the interested party feels they still suffered damage and they would only use the apology as evidence against you in court. – animuson Mar 15 at 3:51
  • Apologizing does not make things worse unless it was otherwise deniable. If the person could credibly be thought not to be the person who posted then an apology acknowledges they were the one who posted. If it was already clear who posted then than person removing the post and saying they may have been mistaken or should have done more investigating before posting can't hurt. – George White Mar 15 at 5:25
  • @animuson sucks to have to be a horrible human being then. The defamation happened, theres ample evidence of that, worrying about the fall out of that defamation is what the OP is now asking about and too many people fail to see that most things can be made to go away by acting contrite, offering an apology and making amends. But no, highly litigious society means we are actively recommended to be terrible human beings instead. – Moo Mar 15 at 5:27
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    Yes it sucks we live in that society. But this is a law site, not a how to be a good person site, and recommendations should be what would be the best option in the eyes of the law. It is not clear that a dedamation case would be successful here since it is possible neither party would be able to prove the statements true or false. One should only apologize if there is an explicit agreement with the other party that they would not pursue a case if a retraction and apology were received. Never offer it without guarantees. – animuson Mar 15 at 7:06

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