A Utah man in the midst of a bitter divorce proceeding went on the Internet to express his displeasure with services provided by his former divorce attorney. The attorney was none too pleased with the critique of his former client, and initiated a defamation lawsuit for the review posted on yelp.com.
After intricate analysis of the statements in the review and their connotations, the Utah Court of Appeals affirmed the trial court’s dismissal of the attorney’s defamation claim.
After spending some $5,000 on attorney services he found to be lacking, the former client posted a review of his former attorney on yelp.com that included the following descriptions: “Worst ever”; “Yelled at me once when I called”; “Told me to ‘GOOGLE IT’”; “Worst. Ever.”; Filed a Utah Bar complaint and strongly considering suing him.” The attorney asked his former client to remove the review. The former client declined, and the attorney sued for defamation.
Statement of opinion is not defamatory
The court of appeals explained that pure opinion, because it serves as fuel for the marketplace of ideas and is generally incapable of being independently verified, cannot serve as the basis for defamation liability. However, liability may be imposed if an opinion states or implies underlying defamatory facts.
In this case, the court initially found that the online review was indeed opinion, but set out to determine whether it stated or implied underlying facts that were actionable. In making this determination, the court considered: (1) common usage of words used; (2) whether the statements were capable of being objectively verifiable; (3) the full context of the statement; and (4) the broader setting of the statement.
The court first found that the use of “worst ever” was not objectively verifiable, despite the attorney’s contention that he was certainly not the worst attorney since he had never been disciplined. The court reasoned that no reader would take such a literal approach and that there was no objective means to determine whether the attorney was in fact the worst ever. Other statements such as “[h]ad to fire him” were similarly ruled incapable of being objectively verified.
Ultimately, according to the court of appeals, only three statements by the former client in his review were subject to objective verification: (1) whether the attorney told his former client to Google something; (2) whether the former client filed a complaint with the Utah State Bar; and (3) whether the former client was considering suing the attorney.
The broader setting and full context of these statements, in the court’s view, proved that the statements were all made as an expression of opinion. First, the fact that the statements were all made on a review website, where readers would expect to find expressions of opinion rather than fact, weighed heavily in the former client’s favor. Also interestingly, the court noted that the former client’s emotional state caused by being in the midst of divorce and his extensive use of hyperbole throughout the review would cause readers to not take the review literally, but would interpret it as conveying the former client’s general dissatisfaction. Finally, to the extent facts were included in the review (e.g., that the former client was considering suing the attorney), the court found none were defamatory because none rose to a level that would expose the attorney to public hatred, contempt, or ridicule. In this regard, the fact that the attorney might be shown in a negative light was insufficient.
Lay it on thick
Perhaps the most interesting aspect of this case is the court’s ruling that the former client’s extensive use of hyperbole caused readers to be less likely to take the review seriously. While this may be common sense when we think about our initial reactions to someone who exaggerates their problems, it is also somewhat counter-intuitive—the more someone piles on in a negative review may be inversely proportional to their potential liability for defamation.