Courts Crack Down on Web Posters Playing 'Fast and Loose' with Facts
The tide is turning against posters of defamatory screeds on online review websites, at least in the California appellate courts.
For the second time in as many months, an appellate panel has ruled against posters to Yelp and similar sites. The decisions cut against the grain of some previous appellate opinions which held that readers expect posts on Internet message boards to play "fast and loose" with the truth, setting a high bar to defamation.
On Monday, Justice Raymond Ikola led a Fourth District Court of Appeal panel that upheld a $24,000 judgment — including a $4,000 punitive damage award — arising from a dispute over a wig.
The court also drew a direct conflict with another division of the Fourth District by holding that small claims court findings have no preclusive effect when the same issues are litigated in superior court.
Barbara Sanders, a cancer patient, bought a wig from Constance Walsh and her company Wiggin Out Salons Inc., but returned it because it wasn't custom made. Walsh brought a small claims action, saying she'd been stiffed. But a small claims judge ruled for Sanders after her daughter, Cheryl, submitted a Federal Express receipt showing she'd sent back the wig.
The Sanderses, or someone sympathetic to them, posted a description of the litigation on RipoffReport.com. That didn't sit well with Walsh, who filed a lengthy rebuttal accusing Cheryl Sanders of "lies and fabrication" in court, including "a falsified document with a cut-and-paste FedEx label."
Subsequent posts on Yelp and MerchantCircle.com noted that Cheryl Sanders works for the city of Anaheim and accused her of accepting bribes from contractors. "A nice detailed audit and internal investigation will fix this rather quickly as we have demanded one from our government!" states one of the posts.
Cheryl Sanders sued for defamation and intentional infliction of emotional distress. Orange County Superior Court Judge Charles Margines awarded $10,000 on each claim, plus $4,000 punitive damages. He ruled that Walsh was collaterally stopped by the small claims judgment from arguing that the FedEx receipt was, in fact, phony.
On appeal Walsh's attorney, Timothy Miller of Riverside, pointed to a 2008 case which held that "the relative anonymity afforded by the Internet forum promotes a looser, more relaxed communication style," and a 2012 ruling that readers of Craiglist's "Rants and Raves" section should expect "one-sided viewpoints rather than assertions of provable facts."
Ikola ruled in Sanders v. Walsh that the assertions of fact made by Walsh were more specific than in those other cases. In addition, Walsh had written "Fact:" at the beginning of each paragraph.
"While courts have recognized that online posters often 'play fast and loose with facts,'" Ikola wrote, "this should not be taken to mean online commentators are immune from defamation liability."
It's the second published opinion from the court of appeal this summer holding a Yelp poster to account for online blasts. The First District on July 30 refused to extend anti-SLAPP protection to a Yelp poster who claimed that his landlord was "a sociopathic narcissist" whose behavior contributed to the death of three tenants.
But Ikola agreed with Walsh that small claims judgments do not have preclusive effect in subsequent litigation. The exclusion of attorneys, discovery and evidentiary requirements make small claims findings less reliable than ordinary court rulings, Ikola wrote, and the Supreme Court ruled as much 72 years ago.
The Fourth District's Division One ruled the opposite in Pitzen v. Superior Court. "We hold, however, that Pitzen was wrongly decided," Ikola concluded.
Contact the reporter at email@example.com.