Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Mar 28, 2016

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InternetIt seems that the more over-the-top a negative review is, the likelier a court will find it protected as free speech.

While the First Amendment to the US Constitution says that Congress shall make no law “abridging the freedom of speech,” there are several exceptions to free speech: one of them is defamation/libel. You’re not allowed to spread lies about someone.

How can you tell whether a negative review posted online is protected as free speech or is libel that the reviewer could be sued for writing?

A recent case from the Oregon Supreme Court, Neumann v. Liles, provides some guidance.

Carol Neumann sued Christopher Liles for a negative review he posted on Google Reviews regarding a wedding venue she owns, Dancing Deer Mountain.

The Review

The headline for the review was, “Disaster!!!!! Find a different wedding venue.” The review said:

There are many other great places to get married, this is not that place! The worst wedding experience of my life! The location is beautiful the problem is the owners. Carol (female owner) is two faced, crooked, and was rude to multiple guest[s]. I was only happy with one thing. It was a beautiful wedding, when it wasn’t raining and Carol and Tim stayed away. The owners did not make the rules clear to the people helping with set up even when they saw something they didn’t like they waited until the day of the wedding to bring it up. They also changed the rules as they saw fit. We were told we had to leave at 9pm, but at 8:15 they started telling the guests that they had to leave immediately. The ‘bridal suite’ was a tool shed that was painted pretty, but a shed all the same. In my opinion [s]he will find a why [sic] to keep your $500 deposit, and will try to make you pay even more.

Three-Part Defamation Test

In Unelko Corp. v. Rooneythe Ninth Circuit Court of Appeals came up with a three-part test for defamation that has been widely used by other courts, including the Oregon Supreme Court in deciding the Neumann case.

A basic part of the law regarding defamation is you can’t be sued for stating an opinion that can’t be proved true or false; you can only be sued for stating something that is demonstrably false.

In Unelko the court came up with the following test:

  1. Is the language so figurative or hyperbolic that it would negate the impression that it was a statement of fact?
  2. Is the “general tenor” of the statement such that it would negate an initial impression that the statement was a statement of fact?
  3. Can the assertion be proven true or false?

The Decision

The court found that Liles review was not a statement of objective fact; rather it was an opinion on matters of public concern, and as such was protected as free speech under the first amendment. Relative to the three-part test the court found:

  1. The language was full of hyperbole, including “disaster,” “the worst wedding experience,” etc.
  2. The general tenor of the piece, including the headline, “Disaster!!!!!” clearly implies a statement of opinion.
  3. Statements such as “in my opinion, [s]he will find a why [sic] to keep your $500 deposit, and will try to make you pay even more” cannot be proven.

Takeaways

Truth is always a defense against defamation; if a statement can be proved true, it’s not defamatory.

A review that is clearly “over the top,” filled with hyperbolic language, will be likelier to be found to be an opinion than a calmer, more objective-sounding, “factual” review. This may not be good news for business owners, as a review with hyperbolic language may be capable of causing more harm to the business than a calmer, but still negative, review.