United States: Can You Be Sued For Posting Your Opinions On The Internet?

A restaurant tells customers it may sue them if they post unfavorable reviews on the Internet. A flooring company sues a customer who complained on social media that he had an "absolutely horrible experience" with the company.

Klear-Gear, a gadget company, included in its Internet terms a provision that "your acceptance of this sales contract prohibits you from taking any action that negatively impacts KlearGear.com, its reputation, products, services, management or expenses." The terms also set damages for a violation: $3,500.

If something seems wrong to you about these cases, you are not alone. While libel law has struggled for years with the dividing line between expressions of actionable fact and constitutionally protected opinion, most laypeople, and judges, believe that statements of opinion should be protected, and broadly construed.

That may be why Grill 225, a restaurant in Charleston, met with such opposition when its scheme for suppressing unfavorable reviews was recently publicized. The restaurant required persons booking online reservations to agree to terms and conditions in which, among other things, the customer agreed "that they may be held legally liable for generating any potential negative, verbal, or written defamation against Grill 225.

Most efforts to prevent or penalize Internet comments and criticism are crushed in the court of public opinion even before they reach the courthouse. Grill 225, for example, is really only stating the obvious when it says that it could sue a customer. It wisely hasn't done so in the two years that it has posted its terms. The flooring company, in Colorado, did sue its customer, but the case provoked a state legislator to propose stronger protection against suits aimed at chilling free speech.

Indeed, last year California passed a so-called "Yelp Bill" that prohibited businesses from including in their contracts "a provision waiving the consumer's right to make any statement regarding the seller or lessor or its employees or agents, or concerning the goods or services." A similar bill, the proposed Consumer Review Freedom Act, has been introduced in Congress.

When cases do get to court, even under existing law, statements of opinion are generally protected. As one example, consider a case involving presidential candidate Donald Trump, back in the early 1980s, when he announced an audacious plan to build the tallest building in the world, a 150-story skyscraper, on landfill just south of downtown Manhattan.

Trump's plan met opposition in Chicago, then home of the world's tallest building, the 108-story Sears Tower (now Willis Tower). Specifically, the Chicago Tribune's architecture critic, Paul Gapp, analyzed Trump's proposal in a review and deemed it, among other things, "one of the silliest things anyone could inflict on New York or any other city." Gapp's review was accompanied by a Tribune artist's rendering of southern Manhattan with a giant new building, a Sears Tower lookalike on steroids, sticking out like a sore thumb below and east of Battery Park.

Trump, no more shy then than he is now, immediately sued the Tribune, seeking damages to the tune of $500 million. I worked for the Tribune's law firm and had the task of writing the motion to dismiss Trump's case. There were plenty of good legal authorities on the right of critics to express their opinions, but I decided to prepare our brief a bit differently.

I asked Gapp, the critic who wrote the review, to research what critics in the past had said about now-famous architectural masterpieces, like the Sydney Opera House and the Empire State Building. It turned out that those buildings didn't get much in the way of negative reviews, but Gapp hit pay dirt with the Eiffel Tower. Guy de Maupassant and 46 other French artists vehemently opposed the erection of the landmark tower, conducting a public campaign against it, and calling it "useless and monstrous" and a "horror."

De Maupassant wrote that the tower would be "an unavoidable and tormenting nightmare ... this tall skinny pyramid of iron ladders, this giant and disgraceful skeleton with a base that seems made to support a formidable monument of cyclops and which aborts into the thick, ridiculous profile of a factory chimney."

I cited de Maupassant's criticism of the Eiffel Tower in the Tribune's brief, and Judge Edward Weinfeld, of the U.S. District Court for the Southern District of New York, seemed to find it on point. He dismissed Trump's $500 million lawsuit, citing the right of critics to express their opinions, and quoting De Maupassant's letter as an example of that right. (Judge Weinfeld didn't include the tidbit I enjoyed most from Gapp's research — the story, possibly apocryphal, that after the tower was erected, de Maupassant frequently dined at the restaurant on its second level —because it was the only place in Paris from which you could not see the Eiffel Tower.)

Despite the general success of opinion defenses, the law's protection for opinion isn't as clear-cut as many people think it should be. Libel law has evolved on this issue, not always in a straight line. Prior to 1974, the common law doctrine of "fair comment and opinion" applied, and protected opinion only in somewhat limited situations. A statement by the Supreme Court in 1974 led to a fairly broad protection, but the Supreme Court later cut that back.

In Milkovich v. Lorain Journal, in 1990, the Supreme Court held that a plaintiff can't be deprived of recourse over a false statement of fact, just because that statement of fact was dressed in the clothes of opinion. Separating fact from opinion can at times require a complex linguistic and circumstantial analysis, because some statements of opinion contain implied assertions of fact. For more on this, and the full history of development of the protection for opinion, see my article on "Opinion and Libel" from the recently published Sage Guide to Media Law and Ethics.

Notably, even after Milkovich's narrowing of the legal test for protection of opinion, most courts retain their inherent hostility to lawsuits based on statements of opinion. They sense, I think, that a broad freedom of opinion is part of our culture. "Americans have been hurling epithets at one another for generations," one court noted 40 years ago. That trend has only intensified in the free-for-all of modern digital communications. 

Treating expressions of opinion differently from statement of facts isn't just a matter of First Amendment freedom. It also seems to reflect the realities of our American vernacular.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions