The Virginia Supreme Court has reversed the decision of the Fairfax County Circuit Court that initially instructed an irate remodeling client to remove the most incendiary remarks from the online reviews she posted at Yelp and Angie’s List.
On Dec. 28, the Virginia Supreme Court found the lower court’s preliminary injunction was not justified nor limited to a prescribed period and that the contractor in question — Christopher Dietz, owner of Dietz Development, in Washington, D.C. — already had adequate remedy since he was suing the client. Dietz’s lawsuit is for $750,000, claiming that the client’s online accusations had cost his company $300,000 in lost business, not to mention damage to his company’s reputation.
In its Dec. 5 decision that initially had remodelers and contractors cheering, the Fairfax County Circuit Court ruled that the dissatisfied customer had to remove part of her negative review accusing Dietz of trespassing and theft. She also had to remove claims about winning a lawsuit against the remodeler when in actuality the case was dismissed before a judge could rule on its merits.
While she also complained about Dietz’s prices and workmanship, the lower court said those comments could stay on the review sites since they were, essentially, a matter of opinion.
The legal wrangling began with Dietz’s $750,000 lawsuit against his unhappy client because neither she nor the sites would take down the defamatory comments. “I didn’t want to sue her,” Dietz says. The client owes him only $10,000, and he says, “It’s going to cost me more than what she owes me. I can’t even begin to fathom how much damage her statements have caused and will cause unless I can get these postings removed and stop the bleeding.”
Even after Dietz offered documented proof of his innocence regarding the charges of theft and trespassing — including letters from Virginia’s attorney general and the Better Business Bureau — the sites would not remove the comments. “She’s lying about legal issues, and I have evidence that she’s lying and you won’t remove it?” Dietz reports saying to someone at Angie’s List, who told him that no, they wouldn’t remove the post because Angie’s List is just a forum. “And that’s why I took legal action,” Dietz continues. “Not because I want the money or want to suppress free speech, but because it was the only way to get these postings taken down.”
After his case first made headlines, Dietz heard from other small-business owners in the Washington area who thanked him for his efforts with Yelp and Angie’s List. “More than one small-business owner has said that they wanted to sue Yelp but didn’t know how,” Dietz says. “One guy said that Yelp ruined his reputation and he had to sell his business.”
Online review sites adhere to Section 230 of the 1996 Communications Decency Act, which states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” In other words, if the site didn’t write it, it’s not the site’s problem. Dietz doesn’t take issue with this stipulation, but he does have a problem with the fact that all reviews are apparently not created equal.
According to Dietz, the sites’ program software views too many positive reviews as illegitimate, and they then get suppressed, he explains. “But if you want the positives back up, you need to pay a monthly service fee. That sounds like extortion to me.” Negative reviews do not seem to be targeted by the highly sensitive program software, even if they contain foul language.
Dietz hopes that the publicity this case has received will cause these sites to rethink their policies regardless of what the Communications Decency Act’s Section 230 says. Corey Perlman, president of online consultancy eBoot Camp, is doubtful.
“I’m unsure if this decision will have an overall impact on online customer reviews, but I hope it does,” Perlman says. “People should have to think twice before firing off an accusation without sufficient evidence. Review sites are a great resource for consumers, but the bad apples that use it as a tool for slander should be held accountable.”
Now that the higher court has reversed the decision, Dietz admits that he is disappointed by the turn of events, but not surprised. “From what I understand, preliminary injunctions have a low success rate anyway because it limits a judge’s ability to do a flip-flop in the damage and defamation part of a case,” he says. “They don’t want to back themselves into a corner. When I initially won, it gave me a somewhat better chance of winning [the damages in the lawsuit].”
Dietz says that from what he understands is that the preliminary injunction tends to level the playing field as to who would be damaged by the negative comments staying on the sites. “I’m a business and we will lose business due to these defamatory statements,” he says. “The [Virginia Supreme Court’s] argument is that they reversed the preliminary injunction because I have the ability to receive payment for the damages in the secondary court proceeding.”
James Bacon, a partner with Allred, Bacon, Halfhill & Young, in Fairfax, Va., who served as counsel to the homeowner that Dietz sued, further questions the logic of continuing to pursue the case. “If I’m the contractor, why would I be trying to get publicity for myself or continue this case knowing full well that my claims that I did not do poor work, did not overcharge, did not damage the home are only going to be revived and scrutinized and made public even more so?” he says. “I would wonder what’s more prudent and what’s going to damage a reputation more: to revisit all these problems, or to declare yourself a winner because you got a preliminary injunction and move on so you don’t have to answer those charges again?”
Then again, some clients just want a free kitchen, according to Richard Feeley, president of Feeley Mediation & Business Law, in Marietta, Ga., and a REMODELING contributor.
“These sites have created a ready-made place for folks with a beef with a contractor to say whatever they want to about them,” Feeley says. “If the remodeler doesn’t quickly resolve disputes, his brand can take a big hit if someone decides to take it to the Web.”
Dietz, who is a member of NARI, the U.S. Green Building Council, and is certified for lead removal and universal design, is frustrated because he feels he has done all the right things for his profession.
“She can call me a crappy contractor all she wants because I know otherwise,” Dietz says. “My clients and my portfolio speak to that. I don’t do this for my own entertainment; I do it because I take my job seriously.” —Mark A. Newman is editor of PROSALES, a sister publication to REMODELING.