By Bob Sullivan
Free speech advocates have won the latest battle in the legal fight between critical web commenters and the businesses they target.
In a Dec. 28 decision that is only now being widely circulated, the Virginia Supreme Court ruled that a dissatisfied consumer's Yelp comments shouldn?t have been ordered removed from the web by a lower court.
The decision is the latest in a steady stream of court rulings that impact consumers who criticize businesses online; in this case, an appeal to First Amendment rights was successful.
Jane Perez was sued by contractor Christopher Dietz in Fairfax County, Va., after she wrote on Yelp that Dietz failed to deliver promised services and implied he might be responsible for jewelry missing from her house. In early December, a trial court ordered Perez to remove portions of her negative review, including references to the missing jewelry and to an earlier court ruling surrounding their dispute. That ruling gained national attention.
But the Virginia Supreme Court overruled the lower court, finding that "the preliminary injunction was not justified," removing restrictions on her original review and siding with Perez? argument that the lower court?s decision represented unreasonable ?prior restraint? of her right to free speech.
?The decision confirms the importance of not shutting down public discussion on the Internet just because someone doesn?t like what?s being talked about,? said Paul Alan Levy, an attorney for advocacy group Public Citizen, which filed Perez?s appeal to the supreme court. ?Review sites like Yelp are vehicles for the free flow of ideas by helping consumers make informed decisions on how to spend their hard-earned dollars.?
The ruling does not mean that Perez has no legal responsibility for her comments, however ?- the underlying case continues, and she could be liable for damages if Dietz proves in court that he was libeled. The court's ruling merely invalidates what Perez's trial attorney had earlier called judicial "copy-editing" of her Internet comments.
In its appeal to the injunction, Public Citizen argued that a court cannot forbid speech with an injunction simply to protect a business from bad publicity.
?Settled law ? forbids preliminary injunctions to protect the reputation of a business as impermissible prior restraints,? the advocacy group wrote.
?Prior restraints on speech and publication are the most serious and least tolerable infringement on First Amendment rights,? it continued, citing a 1976 U.S. Supreme Court ruling.
That hasn?t stopped companies from trying, however. Weary of reputation-killing criticism on review sites like Yelp, some businesses have taken to suing consumers for libel, claiming damages through lost future customers. Such lawsuits are meeting with mixed results: An Oregon judge dismissed one lawsuit filed by a dentist earlier this year. Months earlier, a similar lawsuit filed by a church pastor was also dismissed. On the other hand, a case filed by a neurologist in Minnesota after negative comments was initially dismissed, but reinstated by a state appeals court earlier this year. And there are dozens of other ongoing cases -- many involving health care -- including one involving a ?Chicago plastic surgeon suing former patients for $100,000 after they criticized his work online.
Still, the threat of a libel lawsuit has become a more common tactic by businesses trying to dissuade consumers from making critical comments in public forums. A Red Tape reader in Ohio complained last month that she was threatened with such a lawsuit after she placed a sign on her front lawn criticizing a home alarm company.
Levy, a lawyer with Public Citizen, said it?s important the discussion and criticism not be chilled by legal threats and that he was pleased with the Virginia Supreme Court?s ruling.
?This ruling means if you have a sound case for defamation, by all means, you can bring it, but you shouldn't expect to have (comments) taken off-line at first blush,? Levy said. ?You have to show to the satisfaction of a jury that false statements have been made about you with malice or negligence.?
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