Q: I used a company here in Illinois on two occasions and was left with a far less than satisfactory experience both times. As such, I took to yelp! to leave my feedback. After posting the honest review, my attorney was contacted and informed that I am being sued for defamation.
My simple review sticks the the facts and alleges nothing that documentation will not back up. The problem is that I may incur exorbitant legal fees. I’m wondering if there are any pro bono lawyers able to assist defend our first amendment rights.
A: In Illinois, a lawsuit for defamation “provides redress for false statements of fact that harm reputation.” Brennan v. Kadner, 351 Ill. App. 3d 963, 814 N.E.2d 951 (2004).
Thus, the statement conveyed as fact must actually be false, and must have caused the plaintiff damage in order for a defamation action to succeed. Parker v. House O’Lite Corp., 324 Ill. App. 3d 1014, 1020, 756 N.E.2d 286, 291-92 (2001) (defamation cause of action requires plaintiff to show defendant made false statement concerning plaintiff; an unprivileged publication of the defamatory statement to a third party with fault by defendant; and that plaintiff was damaged).
Statements of opinion are generally protected under the First Amendment, unless the statement implies the existence of undisclosed facts which are both false and defamatory. Horowitz v. Baker, 168 Ill. App. 3d 603, 523 N.E.2d 179 (1988).
In an unpublished opinion by the Illinois Appellate Court also involving a third-party consumer review on Yelp!, in which the owner of an apartment building sought the identity of an anonymous poster for purposes of pursuing a defamation claim against that individual, the appellate court affirmed the trial court’s determination that the postings by that individual were not defamatory, as they constituted opinion – even those statements that appeared, on their face, to be stated as fact. Brompton Bldg., LLC v. Yelp!, Inc., 2013 IL App (1st) 120547-U (Jan. 31, 2013).
As such, the court found the trial court had properly denied the plaintiff’s petition to discover the identity of the poster from Yelp! (You can read more about the decision on Eric Goldman’s Technology blog here: http://ift.tt/1m4f8bh).
If you posted the material anonymously, and the business about whom you posted is attempting to discovery your “user” information from Yelp, it will presumptively have to go through a similar exercise in order to compel Yelp! to turn over that information.
At the very least, Yelp should notify you of this fact, which would give you the opportunity to object to the petition (which can be done so anonymously). Although I cannot speak to the way things work in Illinois, I do know that most states have procedures intended to protect anonymous, lawful speech. In order to compel a website like Yelp to turn over user information, the plaintiff must generally make a showing that it more likely than not will succeed on its defamation action. In other words, if the court determines, as it did in the Brompton case, that the material over which the plaintiff is suing is not, on its face, defamatory, then a petition to compel disclosure of the poster’s identity may be denied.
If your identity is known to the business here, and they name you in a lawsuit for defamation, the same defenses above would seem to apply – i.e., that your post consists of statements of fact and/or opinion, and therefore is not defamatory. Many states have anti-SLAPP (“strategic lawsuit for public participation”) statutes that provide for early dismissal of lawsuits that threaten protected speech; it looks like Illinois’s anti-SLAPP law is called the Citizen Participation Act. A defendant who prevails on a CPA motion can recover attorneys’ fees.
You can read more about the Citizen Participation Act on the Digital Media Law Project’s website here: http://ift.tt/14kmtHt
Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.