Is Facebook feedback defamation - or honest criticism of poor customer service?

Is Facebook feedback defamation - or honest criticism of poor customer service?

Summary: Brands threatening to sue for defamation and deleting critical comments from Facebook do not improve their brand image or demonstrate transparency. So why threaten defamation over a negative customer review?

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If you have a bad experience with a brand, should you complain?  Brands want to receive feedback -- good and bad -- so that they can improve their services to customers. But when the recipient of the poor feedback decides to sue for defamation, is that fair behaviour -- or intolerance of criticism levelled at them?

Ron (I’ve changed the name) had been to a local restaurant and had issues with his lunch.  He gave feedback to the cafe in Wilmington, North Carolina by posting a recommendation on the cafe’s Facebook page:

"Today my lunch experience was as horrible as you can imagine. I sent a sandwich back because it had three things wrong with it, I asked for additional slice of cheese, and no blue cheese crumbles. It had blue cheese, somehow mayo was added, and no provolone at all. It came back in 90 seconds with some cheese, still had the blue cheese on it and mayo.

I said to the waitress don't worry I'll deal with it and eat it, BUT as I was doing that I noticed a half-eaten pickle in the basket under the fries along with some bite marks in the fries. I said who's is this? You reused the basket and got em mixed up and just served me someone else's half eaten food. Please send over a manager.

The owner came over 15 minutes later with an attitude saying it was prepared correctly the second time and that they reuse the baskets of unused sides when doing a recook. I tried to explain that no it was still prepared wrong and it's illegal to resend out food off of someone else's plate to sell to me.

Her response was rude in tone and said that was the way they did it and she felt it perfectly O.K. You can't even use the same plate to revisit the buffet how is it legal or appropriate to reuse half a plate/basket for a reorder. Just spit in it next time that way I'd never know. You got busted this time".

The owner of the cafe then emailed Ron directly.  Grammar and spelling is theirs:

"if you continue your web based untrue attacks on the business, I am prepared to file a defamation and slander suit against you. cease and desist immediately. and you are banned from the restaurant permanently. you are committing a federal crime by posting untrue information on the internet. making up stories is a federal crime."

The response from the cafe reminds me of another incident last month where a blogger was banned from the cafe that did not exist.

So is this defamation?  In England and Wales a statement is regarded as published where it is read.  If it is read or seen in England or Wales then an action can brought in that country -- even if the site, such as Facebook, is an American site. Facebook itself can be sued if it refuses to take down a defamatory comment.

Winners and losers

In 2008 Grant Raphael was ordered to pay £22,000 in damages for defamation and invasion of privacy over fake Facebook pages. Juan Morado is seeking more than $50,000 in damages from Lance Handzel for allegedly posting defamatory comments about him on Facebook.

Jeremiah Barber branded his former friend a paedophile on Facebook and had to pay £10,000 in damages for the stress and anxiety suffered by Raymond Bryce.

Defamation also applies to posts or comments that you leave on a website such as here on ZDNet.  If there are more readers of the website, then the potential harm is magnified.

But you might not win your defamation case.  In 2010 a judge in New York state dismissed a defamation case against a group of teenagers who had been posting comments on a private Facebook group. Members of the group had to be admitted to the group by a group member and content could not be seen by anyone outside of the private group. Warning, some of the content in the court opinion link is offensive.

Doing it yourself

If you want to find out who is defaming you then you can hire someone to investigate on your behalf.  In the UK, TV personality Noel Edmonds tracked down a Facebook troll and confronted him face to face. This approach was very effective against the troll, who was very contrite and sorry about his actions.

Brands that sue customers for defamation are not improving their brand image.  Deleting comments from Facebook does not demonstrate transparency.  Lawsuits are expensive, running into thousands of dollars. Think carefully about what you will get out of the lawsuit before you start.

All you might get out of it is your (expensive) day in court.

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34 comments
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  • A simple definition

    It's not defamation if it's the truth.
    djlong
    • Correct, this is a case of ALLEGED defamation

      Whether defamation has actually been committed or not is up to the courts to decide.
      Not a Fool
  • companies need to step up

    problem is how do you prove its defamation....

    Customers have a right to express their opinion about an experience with a company, good or bad. In this day and age companies live and die by customer ratings. The problem is many companies would rather screw that customer even more, which makes them look worse IMHO, than admit there was a problem and attempt to fix it. They would rather threaten suit right away then attempt to try and resolve the issue.

    I still recall my experience with a car stereo installation company in NY many years ago. They botched up the job, completely destroyed the built-in amp (not to mention it took them hours, a good few to cover up their mistake i'm sure). All they did was shrug and say, the guy was new, sorry and still demanded full payment for services. It took a report to the BBB before we got the money back we paid, reluctantly, for the service, and the money to replace the OEM amp as well.

    Ok so of course some will bash a company just because (look at all the MS/google/apple haters out there)

    Companies need to step up admit their mistake and FIX IT, isn't this what we teach our kids to do?
    dracodos
    • Well,

      Based on existing companies' record of shrouding problems, with their CEOs pretending there are no problems or, worse, blaming the user for the problems when it's a da*n lie they're peddling... and that can happen in any venue...

      "ethics" means precious little in today's society.

      Heaven help us all when the kids grow up... money may not trickle down, but observing what higher-ups do inevitably does.
      HypnoToad72
  • Don't come after me with a legal suit about any true statements by me

    If I'm wrong, I'll admit it, and correct it, and it will never have to go to court.

    If I'm right, no amount of legal action will do you any good.

    And if I'm right, and you win anyway, it will be the last thing you ever win. I'm very Old Testamentarian about that sort of thing.
    Dr_Zinj
    • Agreed 100%

      Couldn't have put it better myself.
      dcardin21
    • so when's the trial for first degree murder?

      Granted, I just made an assumption based off your third paragraph as to what you would do in return.

      Methinks you need to clarify, so people don't start thinking all sorts of outrageous things as a result of your inadvertent oversight...

      I don't disagree with your first two paragraphs, of course.

      But then, what you say in paragraph 3 contradicts paragraph 2 (so it ultimately did somebody some good despite your claiming to be right, so how do you know your being right is indisputable fact and not the odds being stacked up against you or you being framed?)
      HypnoToad72
  • Defamation

    Defamation only applies if the satement is false. If the service of a restaurant is bad, how is that false? Everybody is so "sue" happy lately it is discusting. In other countries if you sue and lose, you pay the legal bills of person/entity you sued. I wish we did that here. It would put an end to all these frivolous lawsuits. Why don't you take that money that you will spend on a lawyer, and make your business better.
    trainguy555
    • Happy to sue because those what make the products and services

      seem to be increasingly lax about quality control, time and effort put into their goods, how little time is used to tested or fix problems or, worst of all, ignoring what workers say and then blaming the customers as being the cause...

      Maybe customers should sue those companies beyond oblivion, instead of those companies being championed undeservedly...

      So, yeah, there is a time and a place, if the reasoning is just. But work with the customer fairly and they will treat you just as fairly in return.

      Or, as a religious text commands, "Do unto others as you'd have them do unto you." So maybe both sides have some evolving to do...

      P.S. Germany lost WW1 and had to pay for the cleanup... their economy got trashed, and some raving loonie with a loud voice and silver tongue convinced the locals some perceptions as to who was to blame for their country's economic problems, which led to WW2...
      HypnoToad72
  • Defamation or Critique

    That restaurant owner is mistaken if her thinks a complaint posted on fb can be considered a defamation comment. Any business can be critiqued by any person and the food service industry is at the top of the list for being critiqued by patrons and journalists. As long as there are no personal, disparraging remarks, the statement/review can say anything that was experienced by the paying patron. It is the business owner's responsibility to make it right with the customer, else they will ultimately fail via poor customer service. Too bad for the obnixious owner! He need to get his head on right!
    Jaytmoon
    • Careful with assumptions regarding the law here..

      While it is true that in most jurisdictions the most basic definition of defamation is the "publication of untrue, damaging remarks", what is defined as "damaging" and "publication" can change a great deal, as can the burden of proof (remember, this is civil law, not criminal law - there is no presumption of innocence, nor is there the need for proof beyond a reasonable doubt).

      In many jurisdictions, for instance, the plaintiff only needs to prove that a damaging remark was published - it is up to the defendant to prove that the remark was untrue (truthfulness is a complete defense). In many places, simply making a damaging remark to one other person qualifies as "publication".

      The fact that the target is a restaurant isn't much of a defense either, and in this case where the person is accusing the restaurant of breaking the law, this can actually become a real legal problem if that person cannot later prove that his statements were true.
      daftkey
      • Ok, name one.

        "In many jurisdictions, for instance, the plaintiff only needs to prove that a damaging remark was published - it is up to the defendant to prove that the remark was untrue "

        Ok, name one.
        CobraA1
      • Ok, name one.

        "Ok, name one. "

        Alberta - where I live, and where I studied business law.

        (edited just to clarify) - From the Defamation Act:

        Presumption of damage
        2(1) An action lies for defamation.
        (2) When defamation is proved, damage shall be presumed.

        Allegations of plaintiff
        3(1) In an action for defamation, the plaintiff may allege that the
        matter complained of was used in a defamatory sense, specifying
        the defamatory sense without alleging how the matter was used in
        that sense.

        (2) The pleading shall be put in issue by the denial of the alleged
        defamation, and if the matter set out, with or without the alleged
        meaning, shows a cause of action, the pleading is sufficient.

        In other words, these sections put together actually mean:
        1) Plaintiff only needs to prove that defamation happened (ie, a defamatory comment was published)
        2) Damage is EXPLICITLY assumed - the plaintiff does NOT have to prove that damage actually happened.

        Note - nothing in here mentions the idea that the defamatory comment has to be false, however later in the Act, it is stated that truthfulness of the comment, as long as the information presented is not confidential, as a defense.

        Now I know it's not in the US of A so it might not be relevant to you - however many of the cases mentioned in this article are from England and other european states where the legal system is much closer to that of Canada than the US.
        daftkey
      • ok

        ok, +1 for a good reply. Don't exactly agree with such a law, but I suppose it's in the books for Alberta. And of course, I'm not a lawyer (or any sort of legal expert), so I'm not terribly familiar with defamation laws.

        I'm a very big fan of freedom of speech and open communications. Even if the communications is negative, I've found it can be useful.

        Indeed, as a developer of software, I [i]want[/i] bug reports and reports of difficulties, as they are things I should fix with my software. I certainly do not want to hinder feedback, even if negative, that allows me to improve my software. I certainly don't want people to be [i]fearful[/i] that I could slap them with a lawsuit if they provide constructive feedback or constructive criticism.

        Although I also understand that if it's pure personal attacks or FUD, maybe I should be able to say "hey, wait a minute . . ."

        Although I'd rather deal with them by non-legal means. Especially since I'm in no financial position to wage any sort of legal battle.

        I guess what I'm trying to say is that I'd personally like to see defamation laws to be about the rare, exceptional cases where the defamation is really bad. For the occasional bad attitude or whatever, I'd prefer to just let it slide and not deal with it legally.

        And I dunno if it's really so hot an idea to have laws on the books that don't follow the "innocent until proven guilty" guidelines, even if it's just civil law.

        Anyhoo, personal opinion I guess.
        CobraA1
  • Huh?

    How is it defamation to repeat what actually happened to you?

    Honestly, the one problem I have with the article above is that it does not mention the Cafe's name, so that we can all avoid it.

    In many countries, the looser pays ALL court costs, i.e. The portion of expenses for the utilities used, the portion of expenses for the salary of all court employees, all paperwork, etc. as well as the winning party's legal fees. If we moved to this system, I think we would greatly reduce the amount of fraudulent lawsuits and free up the courts to handle more important matters.
    cmwade1977
    • Most people don't understand defamation...

      "How is it defamation to repeat what actually happened to you?"

      It isn't - in the purest sense - however, if you are sued for defamation, it MAY be up to you to prove that what you said happened actually happened.

      See my comment above, and reflect on this a second. The following two facts are easily proven by the restaurant:

      1) The person posted a comment on a public forum.
      2) The comment was damaging.

      In many jurisdictions this is enough for a successful lawsuit, as long as the comment was untrue. Now here is the biggest issue - it is often NOT required for the plaintiff to prove that a comment was untrue. This brings the third item:

      3) The comment *MAY* be true, or untrue. If it is untrue, it is a complete defense. However, the defendant must prove that the comment was untrue. Given what we know here, how easy do you think this would be?
      daftkey
      • Easy peasey...

        A recipt or friend is all the proof you need... Heck, throw in a couple friends...

        We are talking about a civil suit, not a criminal suit. If you can prove you ate at the restaurant, or have testimony from others who were with you when you ate at the restaurant, then you are home free... And you can counter sue for court costs, attorney's fee, pain and suffering, emotional damage, etc.

        Every bad restaurant review I have ever submitted has been true and has witnesses... Any restuarant (none have) that came at me with that weak defamation game would get laughed at and I would publish the threat they just gave me. Then I would get a bunch of friends to go in and mess with them... It would be on like Junior Rodeo (Big Bang reference).
        i8thecat4
      • Really?...

        "A recipt or friend is all the proof you need... Heck, throw in a couple friends..."

        Friends - yes, I can agree that can help. Not sure that the receipt would do it alone, though. All it would prove is you were there, not that you were served half-eaten pickles and fries.

        Again - my main point is that you shouldn't assume that it's as simple as you and others are making it out to be, either as the potential plaintiff or as the potential defendant. There is no such thing as a sure thing when judges and lawyers are involved.
        daftkey
      • Should have pictures of the offending food with the waiter/waitress

        Have as much supporting evidence as possible. And have your fellow diners sign sworn statements as to the truth of the photographs, etc.

        Trouble is that one doesn't necessary know one will need the evidence until the moment has passed.
        Patanjali
      • Untrue? Why?

        Why would the defendant want to prove that the statement is untrue? He wants to prove he lied as a defense? That doesn't make any sense at all. He should be attempting to prove that his statements are TRUE, not false.
        ultimitloozer