New York Court Rules that Insulting Online Review is Not Defamatory

Freedom of speech and defamation law are sometimes in tension with each other. Freedom of speech holds that people should be free to say what they want without fear of reprisal. Defamation law holds that people can be held liable and forced to pay for harm caused by false statements about a person or business. As libel attorneys, we have written at length about the limits of libel law liability and the interplay between defamation law and the First Amendment. A recent opinion from a New York state court exemplifies the tension between these two concepts.

In Rowbotham v. Wachenfeld, the plaintiff Jim Rowbotham brought suit against Jeff Wachenfeld and Wachenfeld’s employer, West Hampton True Value hardware store. In his complaint, Rowbotham alleged that the defendant Wachenfeld posted a defamatory comment on the Facebook page of an advertising agency with whom Rowbotham was professionally affiliated. According to the complaint, the comment stated that “Jim [Rowbotham] is a crook. Worst company to do business with.” Rowbotham claims that his professional affiliation with the advertising agency was damaged as a result of Wachenfeld’s comment.

Rowbotham retained an attorney who sent a written request for the comment to be removed. Wachenfeld allegedly did remove the comment sometime in May 2017, replacing it with a five-star review though Wachenfeld denied having posted the comment in the first place. Wachenfeld claimed that anyone at the West Hampton True Value store could have left the comment as all ten computers at the store were logged into his personal Facebook account, making it available to anyone.

Despite the removal of the comment, Rowbotham filed suit in 2018 alleging defamation per se. Rowbotham also alleged in his complaint that Wachenfeld’s employer was liable under the doctrine of respondeat superior because the alleged defamation occurred within the scope of Wachenfeld’s employment. According to the complaint, Wachenfeld left the comment as retaliation for a negative Yelp review Rowbotham posted about the West Hampton True Value store. Following discovery, the parties filed cross-motions for summary judgment.

In ruling on the cross-motions for summary judgment, the judge examined each of the statements at issue to determine if one or more of the statements could be deemed defamatory and whether either of the defendants could be held liable for the statements. The two statements that the court examined where the statements “Jim is a crook” and “worst company to do business with.”

The court found that neither statement could be considered defamatory because they constituted hyperbole and lacked the precision needed to make them actionable. In New York, as in Illinois, insults and hyperbolic statements are generally not sufficient to maintain a claim of defamation. Instead, the court explained, they are considered to be statements of nonactionable opinion that the average reader would understand not to be literal statements. The court cited to several cases finding statements that the plaintiff was a crook or a criminal to be not defamatory as the reasonable reader would understand that the statement was literally accusing the plaintiff of committing a crime.

The court bolstered its finding that the statements were merely expressions of opinion by considering the medium in which the statements were made. The court pointed out that the statements were made online and explained that online statements must be considered “within the unique context of the internet.” The court cited case law finding that statements made online are less likely to be considered defamatory because of the “free-wheeling, anything goes-writing style” synonymous with online commentary.

The court’s full opinion is available online here.

Whether you are being accused of defaming someone or you believe that someone else has defamed you, it is important to consult an experienced defamation law and First Amendment law attorney. Our DuPage County defamation attorneys defend individuals’ First Amendment and free speech rights to address matters of public concern. Our results speak for themselves. Here you can read a federal court decision where we successfully defended our client against a libel per se claim arguing that the statements were capable of an innocent construction and were nonactionable opinion. We also recently required a defendant who publicized an allegedly false lawsuit regarding our client to provide an apology and full retraction as part of a confidential financial settlement following our filing of a $16 million libel per se lawsuit.

Our Naperville and Woodridge defamation attorneys also represent and prosecute claims on behalf of businesses throughout the Chicagoland area including in Wilmette and Evanston who have been unfairly and falsely criticized by consumers and competitors in defamatory publications in the online and offline media. We have successfully represented businesses who have been the victim of competitors setting up false rating websites in order to publish defamatory content about our business clients. Beyond slander and libel law, our Chicago business, commercial, class-action, and consumer litigation lawyers represent individuals, family businesses and enterprises of all sizes in a variety of legal disputes, including disputes among partners and shareholders as well as lawsuits between businesses and consumer rights, auto fraud, and wage claim individual and class action cases. In every case, our goal is to resolve disputes as quickly and successfully as possible, helping business clients protect their investments and get back to business as usual. We serve clients throughout Illinois and the Chicagoland area. You can contact us online here or call us on our toll-free number at 833-306-4933 or locally at 630-333-0333.

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