United States: How To Disparage But Not Defame Your Wedding Planner

Last Updated: March 6 2017
Article by David A. Kluft

It's March, which means that wedding season is nearly upon us. Let's say you run your own wedding-related business with one employee: you. A customer gives you a review on the internet that is not only negative, but contains false statements. Who is harmed by this false review: you, your business or both? And if you want to sue the former customer, what is your cause of action? Defamation, trade libel, false light invasion of privacy . . . all of the above? Does it matter?

Yes, it matters. In Gillon v. Bernstein, District of New Jersey Judge William Martini deftly pared down a messy seven-count complaint alleging reputational harm and, in doing so, let us know how to disparage – but not defame – our wedding planner.

The Bernstein Wedding

Honey Bernstein of Orange County, New York was planning her son's wedding and needed a band. She found the website of Iris Gillon, an event planner and music booker who, in connection with her wedding planning work, had appeared on The Apprentice and Platinum Wedding.

Bernstein hired Gillon to take care of the music for the ceremony and reception. The wedding seems to have gone fairly well, except that Bernstein's electrician had to work a little overtime to make sure there was enough electricity for the band's equipment. But Bernstein was not happy with Gillon's work and, a few days later, Bernstein posted a review of Gillon on RipoffReport.com which stated:

Way below par Service – did not get what was contracted for . . . My son got married this past weekend and (1) the singer was awful (2) the number of musicians promised did not show up (3) the band leader had no personality whatsoever . . . the band's electrical requirements that iris sent me were all wrong and my electrician, at an enormous expense, had to work the night of the party, in the rain, to make sure that there was enough power.

When Gillon complained to Bernstein about this post, Bernstein announced her intention "to post my opinion in as many places online as I can find."

The Musician and the Electrician

Gillon filed a six count complaint, later amended to seven counts. Five of the seven counts were redundant variations on the tort of libel (libel, libel per se, libel innuendo, injurious falsehood, defamatory injury to reputation), which the Court treated more or less as one defamation count. In addition, Gillon' s complaint included counts for commercial disparagement and false light invasion of privacy.

Bernstein moved to dismiss, arguing that her review was no more than pure opinion. The Court agreed with respect to most of the review: statements like "the singer was awful" and "the band leader had no personality" were clearly opinion, even if hyperbole (only lawyers have no personality).

However, two statements in Bernstein's review survived the motion to dismiss and eventually had to be sorted out on summary judgment. The first statement was with regard to the "all wrong" electrical specifications. It turns out that Bernstein never gave Gillon's electrical specifications to the electrician, so whether or not they were "all wrong" was somewhat beside the point (plus there was evidence that they were not in fact wrong at all).

The second allegedly false statement that survived the motion to dismiss was a bit more baffling. Bernstein complained that she contracted for a six-member band, but only three members actually showed up at the wedding. The reason this statement was baffling was that there were all sorts of wedding photographs of Bernstein and her guests dancing . . . in front of a six-piece band.

So this was a slam dunk defamation case for the wedding planner, right? Actually no, she lost.

Defamation v. Commercial Disparagement

Defamation (called libel when in writing and slander when spoken) and commercial disparagement (also known as "trade libel" and "product disparagement") have similar elements. Both involve a reputation-harming false statement of purported fact, published by the defendant to third persons with the requisite level of fault (actual malice if the plaintiff is a public figure, negligence for private figures). However, they differ in at least two key respects, as described by Judge Martini.

The first difference is obvious. Defamation is concerned with the reputation of a person. Commercial disparagement, on the other hand, which is an offshoot of the business tort of tortious interference, is concerned with the reputation of a product or service.

The second difference is that in most cases it is much more difficult to prove the harm element of commercial disparagement than the harm element of defamation. In a defamation action, false statements about a person's fitness for their occupation or trade are often presumed to cause harm. But in a commercial disparagement action, harm is not usually presumed; instead, you have to prove "special damages," that is, you have to be able to point to actual instances of lost business, or at least show that you suffered actual pecuniary harm, as a direct result of the injurious statement. In other words, you have to get real specific.

How to Disparage but not Defame

So, let's say you are a wedding planner. A false statement about your business can harm both your reputation and the reputation of your services. You could try to sue for defamation, or commercial disparagement, or both. But since they are both essentially the same tort, and since defamation is easier to prove, couldn't you just sue for defamation and avoid the headaches of a commercial disparagement claim?

It turns out the New Jersey common law is way ahead of you. New Jersey courts want it to be harder for companies to sue for reputational damage to products and services than it is for individuals to sue for harm to their personal reputation. Accordingly, New Jersey courts add an extra element to defamation when it concerns a product or service. In such cases, the defamatory statement must be more than simply false and capable of damaging a reputation: it must also impute reprehensible conduct or deliberate perpetration of a fraud upon the public. So yes, as a solo business person you can just bring a defamation claim and avoid the headaches associated with a commercial disparagement claim, but in doing so you get a new headache associated with your defamation claim.

As a practical matter, this means that if you falsely accuse your wedding planner of being bad at her job, but not of intentionally ripping you off, you have disparaged her, but you haven't defamed her . . . at least in New Jersey. That is what Judge Martini found happened here. Neither statement by Bernstein (about the musicians or about the electrician) accused Gillon of reprehensible conduct or fraud on the public. At worst, they just alleged incompetence. Therefore, they were not defamatory, and summary judgment was granted against the defamation counts.

Special Damages

Ok, so where does that leave the claim for commercial disparagement? Bernstein's statements may not have been defamatory but they were false, they were possibly uttered with the requisite fault, they were published to third parties and, according to the Court, they were capable of being disparaging. Only more element to go: special damages. Could Gillon prove them?

No, she couldn't. Gillon had evidence of one contract that was canceled, but she redacted the names from the contract, and the Court held that she had therefore failed to identify a specific lost customer. The Court also rejected Gillon's other attempts to show special damages, including the opinion of a wedding industry analyst who did not submit his résumé to the court, and whose expert report the Court concluded was "woefully" inadequate. The commercial disparagement claim, like the defamation claims, was dismissed.

False Light

This left standing only the false light invasion of privacy count, but not for long.

False light, like commercial disparagement, is a tort that overlaps with defamation but has its origins in another branch of the law: in this case privacy. We've previously written about that overlap here. Both torts require false statements that cause harm, but whereas a defamatory statement harms a person's reputation in the eyes of an average community member, a false light statement depicts the plaintiff in a manner that "would be highly offensive to a reasonable person."

Many states (including Massachusetts and New York) see the above semantic distinction as lacking a practical difference, and refuse to recognize the false light tort at all. New Jersey recognizes it, but in this case Judge Martini held that it was not applicable as a matter of law. A false light statement must "constitute a major misrepresentation of [A plaintiff's] character, history, activities or beliefs." According to the Court, accusing someone of miscounting the number of band members or electrical outlets just didn't fit that bill.

Therefore, the Court granted summary judgment to Bernstein, and Gillon's complaint was dismissed in its entirety. Gillon's motion for reconsideration was denied on January 17, 2017. Gillon filed a notice of appeal in February.

To view Foley Hoag's Trademark and Copyright Law Blog please click here

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
Events from this Firm
12 Oct 2018, Other, Boston, United States

The New England Electricity Restructuring Roundtable has been meeting bimonthly since 1995 to discuss current topics related to important changes in the electric power industry in Massachusetts and throughout New England.

 
In association with
Related Topics
 
Related Articles
 
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