Proposed legislation could protect online reviewers from retaliatory suits


If you’ve never heard of a strategic lawsuit against public participation (SLAPP), consider yourself lucky.

I hadn’t either until a knock at my door on a January evening seven years ago. A process server pushed an envelope into my hand. “You are being sued,” a notice at the top of the document proclaimed. I felt my pulse quicken.

SLAPP lawsuits — which most often take the form of a defamation suit — are surprisingly common. They are meant to burden individuals with the cost of a legal defense until they stop their criticism. They affect travelers disproportionately, in large part because travelers’ opinions have the power to raise the fortunes of a hotel or restaurant — or to put them out of business.

Last year, for example, roughly 2,500 TripAdvisor users removed their reviews because they were being harassed by businesses they had rated, according to the site. It’s not known how many disrupted reviews resulted in lawsuits.

The Speak Free Act, which is expected to be considered by Congress in early 2017, allows any person against whom a SLAPP suit has been filed to make a special motion to dismiss the lawsuit. Proponents say a new anti-SLAPP law is needed on the federal level because only a patchwork of state laws exist, and they offer uneven protection against these frivolous legal complaints.

The Speak Free Act would allow travelers to quickly end these suits before they run up legal bills. Supporters say the law would also encourage consumers to offer honest reviews without fear of retribution.

“Sometimes, businesses will threaten frivolous defamation lawsuits as a way to censor criticism,” says Mark Grabowski, an Internet law professor at Adelphi University. “The business knows it has no chance of winning the lawsuit, but merely wants to intimidate customers, rivals and others from expressing negative opinions about the business.”

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That was certainly my initial reaction when I was sued. I didn’t want to write another word about the travel agency that claimed I had defamed it. But my lawyer advised me to cover every detail of the suit, arguing that the bright glare of publicity would make the lawsuit disappear.

He was correct. And after several months of back-and-forth, the suit was dropped.

I’m not alone. Consider what happened to Michelle and Robert Duchouquette, who were sued for defamation, business disparagement and a breach of contract earlier this year by a Dallas-area pet-sitting business. The Duchouquettes had hired Prestigious Pets to care for their two dogs while they were on vacation. But they were unhappy with the service and left a one-star review on Yelp.com.


Prestigious Pets claimed that the couple’s review violated a non-disparagement agreement they signed when they hired the company and sought between $200,000 and $1 million in damages. A court has dismissed the suit.

“There’s no denying that these types of lawsuits serve to punish those who speak out by placing on them the heavy burden of costly civil litigation,” says Nannina Angioni, a labor and employment attorney with the Los Angeles law firm Kaedian LLP. “To me, these lawsuits tend to send a clear message: ‘Talk ill of us, and we will sue you — and it doesn’t matter if we win or not because either way, you’ll be stuck with the legal bills.’”

So how would the anti-SLAPP bill work? A lot like the 28 other anti-SLAPP laws in the country, including one in the District. If someone thinks that the complaint against them is a SLAPP suit, they can file a special motion, usually at the beginning of the case. That motion would force the plaintiff to prove that the case has at least some merit and that the speech is not protected by the Constitution.

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“If this is demonstrated, the burden shifts to the bringer of the suit to show that there is a reasonable probability of winning the case and is not completely frivolous in nature,” explains Oz Czerski, an Orlando attorney who specializes in First Amendment law and writes the entertainment law blog thewizardoflaws.com.

Aside from protecting consumers from frivolous suits, why is a new law needed?

“Passage of the Speak Free Act would have positive effects for all travelers — those who write reviews and those who rely upon travel reviews in deciding how to spend their hard-earned money,” says Brad Young, assistant general counsel for TripAdvisor, one of the companies backing the bill.

Until the bill passes, legal experts say you need to be careful.

You could be faced with a SLAPP suit “even if you post an honest review,” warns Nicole Williams, an attorney in the Dallas office of Thompson & Knight, which represented the Duchouquettes. If a business files a SLAPP suit against you, or even if you receive a demand letter, she advises contacting a lawyer and the review platform for help.

What about anonymous reviews?

“Consumers may be surprised to know that even if they post comments on a public site anonymously or under a pseudonym, there is still a legal mechanism for a company or individual to learn their real identity and bring suit against them,” says Michael Niborski, a partner in the Los Angeles office of the law firm Pryor Cashman.

Even if the case has no merit — and SLAPP cases seldom do — it could be months or years before it’s resolved. Enough time to scare the average consumer into silence and score a victory for a business intent on controlling its image.

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Christopher Elliott

Christopher Elliott is an author, journalist and consumer advocate. You can read more about him on his personal website or check out his adventures on his family adventure travel site. Contact him at chris@elliott.org. Read more of Christopher's articles here.

  • llandyw

    The best bet to avoid something of this nature is to use a name or email address that can’t be traced.

    The use of a proxy, one that doesn’t keep connection logs, to connect to the review site is one way of remaining anonymous as the IP address will come from the proxy, not from your computer. Another is to create a temporary email address using one of the anonymous email providers, such as vmail.me. That way an email address may be validated without it being traced back, again no logs are saved using the provider.

    The use of these systems can be used by spammers and scammers as well, and some may be blocked by the review sites. But they will ensure your privacy when posting reviews.

    BTW, any documentation you can gather, pictures/video are best the better, if they do manage to find out who wrote a review.

  • Alan Gore

    So long as you don’t make up anything that is represented as a fact, you’re bulletproof against defamation under US law.

  • John Baker

    Doesn’t mean that they can’t sue you and run up a huge legal bill. You might win but you have to pay your lawyer

  • Alan Gore

    True enough, but if you’re sure of your facts you ought to be able to fight it pro se. They could do something tricky like file in a faraway city, though.

  • Rebecca

    I was curious to see the actual review written against Prestigious Pets, so I searched for it in Yelp. It is a perfectly reasonable, honest review. They also have a whole lot of glowing reviews that sound seriously inflated, the adjectives are just over the top. If I had to guess, I’d bet money they give a small discount for a positive review. No one has that many over the top positive reviews. The majority don’t appear to be from necessarily “fake” reviewers – they appear to be done quickly for a $5 or $10 discount. The owner also leaves extremely detailed replies. They’re not blatantly accusatory, but they ARE strange, something I can’t quite put my finger on.

    The good news? Yelp has a warning that pops up before you are able to see any reviews for the business. It states: “Consumer Alert: Legal Threats to Reviewers” and has a blurb explaining the business may be attempting to abuse the legal system, alerting consumer a lawsuit(s) may have been filed for negative reviews. Looking at the few negative, 1 star reviews, which appear honest and certainly aren’t malicious, I’m glad Yelp does this. It also made me almost certain they’re giving a discount for the positive reviews. I would NEVER do business with a company that had an alert like this. Hopefully the business suffers.

  • AAGK

    A federal anti-slapp statute is long overdue. Unfortunately, the defendant still has to retain counsel, put on a suit, show up for a bunch of meetings and appear in court just to wait months for reimbursement of attorney’s fees.
    This article reminds me I need to Yelp @ Pupculture in NYC. The owner already threatened to sue me in anticipation of my scathing review. They kidnapped my dog and I had to bring the NYPD there. I told him to bring it.

  • AAGK

    The assumption is that attorney’s fees will be awarded however that would probably take months so the D still experiences massive inconvenience and expense.

  • BubbaJoe123

    Or, we could join most of the rest of the civilized world, and have loser pays in litigation.

  • Harvey-6-3.5

    If this does happen to you, resources that might provide some assistance (particularly in well documented cases) could include the Electronic Frontier Foundation, Public Citizen, and even the ACLU.

  • MF

    My experience as a business owner is that Yelp is really a ‘blackmail site’ that attempts to extract ‘premium’ ad money from businesses in exchange for not taking down positive reviews. The Yelp ‘representative’ took down all but a handful of my less favorable reviews when I did not sign up for their service. Talk to many restauranteurs and you will understand their hatred for Yelp’s tactics.

  • Kairho

    An excellent resource for detailed (and entertaining at the same time) information on SLAPP can be found at Popehat.com, written by several of the USA’s top free speech, First Amendment attorneys.

  • ctporter

    That is good information to know! Thank you.

  • cscasi

    Just like what has already mentioned, the one suing is usually a business and the larger it is, the more assets it may have to expend towards a lawsuit; i.e. lawyers(s), etc. While most folks do not have the assets to possibly lose, fighting over something like this. A lawyer’s hourly fee adds up as does having to travel somewhere else to appear in court (if the lawsuit is not filed in one’s local area). Sure, most people say you would probably prevail. But, what if you don’t? Sure could make a dent in my pocketbook.
    Of course, I almost forgot, my homeowners policy covers things like that; i.e. defamation of character type things. Still, I would prefer not to get into a prolonged battle. So, I would like to see The Speak Free Act passed and come into law. However, I would hope there is an exception in there for those few who maliciously write bad reviews and we all know there are those who constantly do that; for whatever reason(s) just to hurt businesses.

  • cscasi

    For those of you who are interested in looking at what this case was about, here is a website that will give you the details. It did make the news in the Dallas/Fort Worth area because of the size of the suit.
    http://www.dallasnews.com/news/courts/2016/08/30/1m-lawsuit-plano-couple-one-star-yelp-review-dismissed.

  • Annie M

    So who do we write to to encourage passing this legislation?

  • yellowbird73

    If you do a search on Craigslist in the “gigs” section, you’ll often see businesses posting gigs to write reviews for them.

    That being said, I know two people at Yelp, one who’s in a mid-level sales position and one who’s worked her way up from a community manager job to a very important international position. They’ve both told me that if any business owner is told by a sales person that negative reviews will get taken down if they spend money, that person should be reported to the company. I’ve had friends who are business owners do it & those salespeople have been fired. I’m not saying it doesn’t happen (clearly it does, since it’s a business in which salespeople are driven in a competition), but it’s not the company policy and if they are caught doing it, they do get disciplined, and if they are caught enough times (I think more than 2-3 times) they are fired.

    FYI for you business owners. I mean, if you want to pay for negative reviews to get removed, go ahead. But if you’re tired of offering great service & having competitors who don’t and engage in these shenanigans, and you’d like to see more fairness in the online review game…it’s one way of going about it.

  • Judge Jury

    vmail.me is not functional

  • yellowbird73

    A friend of mine was sued for $10MM because she got hired to sing in a Pink cover bank. It took her two years to get the courts to drop the lawsuit. She’s trying to get a law passed in NY about this. But it pretty much almost ruined her. Legal resources aren’t available to everyone. http://globaltexanchronicles.com/collette-mclafferty-10-million-wtf/

  • charliebgolf

    As a small travel agency owner, I am totally against SLAPP lawsuits and strongly support “honest” reviews. The problem I have is that there are also people who write dishonest reviews. In my case a person wrote a one-star review going on and on about how people should stay away from my company. What he failed to mention was that we never booked the trip for him. He did all of the work himself on a supplier web site and then that supplier asked us to handle the paperwork. We immediately contacted him to see if he had any questions or would like us to help with anything and the response was no. We even asked him to consider changing to another resort, as we didn’t feel the resort he chose would be satisfactory to him. Again the response was no.

    When it turned out he hated the resort he had booked for himself he went to several review sites and stated we put him there and should have known better. He went on about numerous other things that he thought were wrong with the trip and blamed us for all of them.

    That review made a huge difference to my overall rating and most certainly cost me business. I did a reply to it, but most people seem to just look at the overall rating. A big company with hundreds, or thousands, of reviews can handle some bad ones, but it can be disastrous to small companies.

    I really think that the review companies need to be open to allowing smaller businesses a way to dispute any dishonest reviews they receive.

  • cscasi

    First off, if you are going to fight some lawsuit like that, that would cost you in the thousands or a lot more, you would probably have an attorney. If so, believe me, he/she wold figure in all the various lawyer fees as well as the your costs and damages into the mix (i.e. counter suit) and if you won, the judge could award costs and damages.

  • disqus_00YDCZxqDV

    Exactly John. “The Process Is The Punishment”. By the time they have done subjecting you to motions, counter motions, and endless delays, you have spent 3 years of your life and upwards of $150,000. It’s a common legal strategy to try to run the other party out of money.

  • PsyGuy

    I will add that if you really want to post anonymously you need to use TOR Browser. While a court order can be used to tap or conduct signal analysis between the entrance and exit node, okay forget the technical mumbo jumbo. What it really means is that if a court issues a subpoena to the service that hosts the review what they want is the IP address (your internet phone number) that identifies who you are with TOR all this gets them is the exit node of the TOR relay.

  • PsyGuy

    I wouldn’t use email, you can embed graphics and java that will call back to the source. If you’re going to use email use Protonmail or Tutanota or one of the companies that offers encrypted email. Then connect to the encrypted email service through TOR.

  • PsyGuy

    Agreed most of these lawsuits can be defended pro se. You essentially are defending yourself. You can also counter sue.

  • PsyGuy

    Sounds like the BBB.

  • PsyGuy

    Lawyers won’t take these cases on contingency. It’s too much time and resources. What happens is it gets to settlement and the deal is you pay your costs I pay mine. Even if it goes to verdict the court never grants you full costs, it’s always some text book value of what reasonable costs would be, which is less than your lawyer will likely bill.

  • PsyGuy

    Lawsuits need to be filed where the court has jurisdiction over all parties. It’s easier for a person to sue a business locally where that business does business, but suing a person means the company has to come to you. Otherwise it’s a simple motion to dismiss for lack of jurisdiction.

  • PsyGuy

    How would they really do that and do you understand the cost that would require? This is what happens, every case or challenge comes down to a case of “he said, she said”, your word against theirs. Consumers would win the majority of those complaints, and then the website would add something like “verified complaint” after it’s finding which would be worse for the business.

  • Mel65

    Now THAT is a review I want to read!

  • AAGK

    I wrote about it in depth on the forum. I’m not sure it would do much as a review bc what happened was so extreme, it could easily be disregarded. The owner only released the dog bc he got scared I would leave a bad review. He wasn’t scared of the police threatening a swat team so that kind of shows the power of these reviews. Definitely a good tool in the consumer arsenal.

  • AAGK

    For the big companies, this would not be an inconvenience. Also, if the contract states that NY law applies, for ex, then the court may determine personal jurisdiction exists and the company can sue right here. The D would have to travel.

  • AAGK

    Yes! The ACLU loves this issue and will know where to refer you. Also, many law schools offer clinics, closely supervised by an experienced attorney/professor, and could also take this up.

  • AAGK

    Thank you for sharing this story. I can’t imagine what your friend must have gone through defending herself. This is the perfect example of how frivolous lawsuits ruin lives and cause real damage. I hope everyone here takes a look at this story.

  • AAGK

    In case anyone missed Yellowtail’s comment below, have another look. She links to a fascinating story about the victim of one of these abusive lawsuits.

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