Lawsuit Over Yelp Review Raises Questions of Defamation vs First Amendment Rights

Online review sites such as Yelp have been the bane of companies’ existence ever since they first started popping up on the internet. While businesses work hard to provide each of their customers with the best experience possible, one can never please everyone, and the displeased will inevitably turn to the internet to vent their frustration for all potential clients to see. As problematic as that is for any business (especially small businesses), is suing customers who leave a bad review really the answer?

Lisa Agostino, of Macomb County, Michigan, is being sued by North Wind Heating and Cooling for leaving a bad review of the company on Yelp.

In her review, Agostino said she was overcharged for the air conditioner capacitator the company installed for her.

The attorney representing North Wind Heating and Cooling released a statement saying Agostino signed a work order that approved both a service call and repairs to her air conditioner. The new capacitator was installed on the same day, but she later reached out to North Wind Heating and Cooling, saying she no longer agreed with the pricing of the new capacitator. North Wind Heating and Cooling offered to agree not to charge her for their services or the new capacitator if she returned the capacitator to them. Agostino did return the capacitator and was allegedly not charged for either the service call or the capacitator, yet in her online review, she stated she did pay for both the service call and the allegedly over-priced capacitator.

North Wind Heating and Cooling asked Agostino to take down her review, but she refused. A week after she posted it, the company filed its defamation lawsuit against her, alleging the statements she made in her Yelp review were false, defamatory, and cost the company business (an estimated 6 customers per day). The company is seeking $25,000 in damages and for the allegedly defamatory review to be deleted.

As a small, family-run business that has been operating in Macomb County for almost three decades, North Wind Heating and Cooling depend on business from local residents, and one bad review online can have a significant impact on its overall ratings and the likelihood of potential customers choosing it over a competitor.

On the other hand, will suing a former customer make them any more appealing to work with? The company may or may not succeed in getting any money from Agostino, or in getting her to delete her review, but regardless of the outcome, the PR of this lawsuit is bound to have effects that reach much farther than a Yelp review. It will certainly have the desired chilling effect of any customers posting negative online reviews of the company in the future, but it could also deter people from working with the company in the first place. Who wants to work with a company that might sue them later on down the road?

Agostino’s attorney pointed out that, not only is it bad customer service to sue former customers, it’s also a violation of that customer’s First Amendment right to express their views online.  Opinions are protected by the First Amendment as long as they are not false factual statements. However, simply couching a factual review with phrases like “in my opinion” will not garner Frist Amendment protection if the essence of the statements are false factual assertions.

While the first Amendment right is an important one, it does not protect defamation. If someone knowingly makes false statements about a person or company with the intention of doing them financial harm, that is defamation and it is not protected by the First Amendment.

In this case, it will be up to the court to determine whether Agostino was defaming North Wind Heating and Cooling or just exercising her First Amendment rights as an American citizen.

Lubin Austermuehle’s defamation and slander lawyers near Glen Ellyn and Addison have more than three decades of experience helping business clients unravel the complexities of Illinois and out-of-state defamation, libel and slander laws. We assist businesses and owners who are the victims of defamatory and slanderous attacks on their businesses and reputations.

You can read the Court’s entire opinion here.

Our Lake County defamation attorneys defend individuals’ First Amendment and free speech rights to post on Facebook, Yelp and other websites information that criticizes businesses and addresses matters of public concern. You can view a federal court decision where we prevailed in a libel per se claim asserting the innocent infringer defense here. Here you can find an arbitration decision where we successfully defended our client’s right to post negative opinions on YouTube about a used car dealer. We recently required a defendant who publicized an allegedly false lawsuit concerning our client to provide an apology and full retraction as part of a confidential financial settlement following our filing of a $16,000,000.00 defamation per se suit in federal district court.

We also handle emergency commercial litigation involving preliminary injunctions and temporary restraining orders (TROs), defamation, libel, and covenants not to compete, franchise, distributor and dealer wrongful termination, and trade secrets along with various other types of business dispute involving shareholders, partnerships, closely-held businesses and employee or executive breaches of fiduciary duties. Our Elgin 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. From offices in Chicago Elmhurst and Wilmette, near Oak Brook and Evanston, we serve clients throughout Illinois and the Midwest. You can contact us online here or call us on our locally at 630-333-0333.

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