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

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?
Written by Eileen Brown, Contributor

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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