The Reporters Committee For Freedom Of The Press Cites Mckee V. Laurion In Its Supreme Court Of Oregon Amicus Brief About Carol C. Neumann And Dancing Deer Mountain V. Christopher Liles

SEPTEMBER 24, 2014

IN THE SUPREME COURT OF THE STATE OF OREGON

CAROL C. NEUMANN and DANCING DEER MOUNTAIN, LLC, an Oregon Domestic Limited Liability Company, Plaintiffs-Appellants, Cross-Respondents, Respondents on Review

v.

CHRISTOPHER LILES, Defendant-Respondent, Cross-Appellant, Petitioner on Review

Lane County Circuit Court

Court of Appeals A149982

Supreme Court S062575

BRIEF OF AMICUS CURIAE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS IN SUPPORT OF PETITION FOR REVIEW. AMICUS CURIAE INTENDS TO FILE A BRIEF ON THE MERITS OF THE CASE ON REVIEW

Court of Appeals opinion dated: March 12, 2014

I. REVIEW OF THE DECISION IS IMPORTANT TO CLARIFY THE PROPER ANALYSIS OF OPINION IN DEFAMATION ACTIONS

The Reporters Committee for Freedom of the Press (“Reporters Committee”) urges this Court to take review of the Court of Appeals’ decision (the “Decision”) in order to resolve a conflict between state and federal courts in Oregon on an issue of fundamental importance to free speech: the proper analysis of opinion in a defamation action. The Decision’s narrow application of that doctrine is at odds with recent federal case law originating from Oregon, creating uncertainty that makes it not only difficult for journalists to report news to the public without increased fear of civil liability, but also harms the public’s ability to engage in public discourse online. The confusion the Decision creates concerning what may be stated in an online review, and what will expose a commenter to liability, could effectively limit free speech and thus have serious consequences for public debate.

The news media has a substantial interest in advocating for robust protections for statements of opinion, and in ensuring that the hyperbole commonly employed in the context of online speech is fully considered when analyzing whether challenged speech constitutes protected opinion. The right to express one’s opinion is a cornerstone of the promotion of public discourse and the free flow of ideas. The internet provides a wealth of opportunities for consumers to offer reviews of products and services, and for other consumers to make more informed decisions based on others’ opinions. Because the internet is a forum that thrives on immediate give-and-take, discourse naturally tends to be more hyperbolic, and it is vital for courts to take that context into account when determining whether online speech is actionable. It is crucial that Oregon courts not adopt an analysis that will limit the free flow of ideas and opinions in online forums.

II. REVIEW OF THE DECISION IS IMPORTANT TO CLARIFY THE PROPER ANALYSIS OF OPINION IN DEFAMATION

The Decision’s analysis places state and federal courts in Oregon at odds over the proper interpretation of the opinion doctrine under the First Amendment. This case thus presents an important opportunity for this Court to address the non-uniform application of the opinion doctrine in Oregon courtrooms.

The Court of Appeals rejected defendant Christopher Liles’s argument that numerous statements that he made in his review of Dancing Deer Mountain on the website Google.com were not actionable as opinion and/or hyperbolic statements, and therefore not defamatory. In particular, the Decision concludes that, in the context of an online review of a consumer’s business experience, the words “rude” and “crooked” to describe the plaintiff were defamatory.

See Neumann v. Liles, 261 Or App 567, 578-79 (2014). That analysis is difficult to reconcile with the Ninth Circuit’s recent opinion in Obsidian Finance Group, LLC v. Cox, 740 F3d 1284 (9th Cir 2014), which held (in an appeal from the District of Oregon) that the defendant’s use of such terms as “immoral,” “thugs,” and “evil doers” to describe the plaintiff on her website was not defamatory. Obsidian Finance, 740 F3d at 1294. The Ninth Circuit based its decision on the context of the statements, including the general tenor of the posts and the fact that they were made on an online blog in which the defendant used “extreme language,” indicating to the court that much of what the defendant wrote was hyperbole. See id. In short, the Ninth Circuit’s analysis factored in the realities of the online medium of communication in evaluating the context of the statements.

The Decision here, in contrast, rejects the argument that defendant’s challenged statements were hyperbole. Neumann v. Liles, 261 Or App at 579. The Decision reached that conclusion despite the fact that defendant titled his online review “Disaster!!!!! Find a different wedding venue” and included the statement “The worst wedding experience of my life!” Both statements signify that the defendant was using hyperbole of the type common in online forums. Yet the Decision concludes that the “bulk of the post is not rhetorical and factual,” apparently including the challenged statements “rude” and “crooked.” Neumann v. Liles, 261 Or App at 578-79. As discussed below, that analysis is flawed in that it fails to properly consider the context of the statements.

But in any event, just as significant for purposes of this Court’s review is the Decision’s suggestion that such an analysis may be of only limited relevance to Oregon courts, because it is based on “extra-jurisdictional authority” from the Ninth Circuit’s “First Amendment jurisprudence.” See 261 Or App at 579 (“To the extent that extra-jurisdictional authority informs our analysis, we disagree that defendant’s statements, as a whole, are hyperbolic”).1 The protection afforded to speech should not depend on whether a defendant is in a state or federal court in Oregon. The Decision’s analysis, however, suggests that reality.

It is not simply an issue of an inconsistency with Ninth Circuit authority. If this Court grants review, the Reporters Committee intends to file a brief addressing why binding United States Supreme Court precedent supports a more robust evaluation of context in determining whether a challenged statement is actionable, focusing on two broad principles reaffirmed by the United States Supreme Court in Milkovich v. Lorain Journal Co., 497 US 1 (1990): First, “a statement on matters of public concern must be provable as false before there can be liability.” Id. at 19-20 (citations omitted). And second, a statement is not defamatory if it “cannot ‘reasonably [be] interpreted as stating actual facts’ about an individual,” a requirement that the Court described as “provid[ing] assurance that public debate will not suffer for lack of ‘imaginative expression’ or the ‘rhetorical hyperbole’ which has traditionally added much to the discourse of our Nation.” Id. at 20 (citations omitted). The Reporters Committee intends to argue how these principles, and the case law on which they are based, support a fuller analysis – and a different result – than that in the Decision.

It was error for the Court of Appeals not to fully consider the context of the purportedly defamatory statements. The Reporters Committee urges this Court to grant review in this case to establish the framework for Oregon courts to consider that context in the future. That framework should provide that any evaluation of opinion or hyperbole in an online setting must include consideration of both the importance of contributing to a robust public discourse on issues of public concern as well as the more informal and hyperbolic context of online reviews.

Failure of the courts to take such context into account could result not only in the imposition of excessive liability on members of the public who choose to share their opinions online, but the chilling of this type of speech.

Online sites such as Yelp, TripAdvisor, and Google Plus provide public forums for consumers to post their opinions of service providers for other members of the public to read and use to make their own consumer choices. Such sites are invaluable resources for today’s average consumer, who can now look to innumerable reviews available online to decide where to eat, which doctor to visit, or how to choose a provider of virtually any service imaginable. Sharing information and views on these services is unquestionably a matter of public interest and concern. It is critical that consumers be able to post reviews without fear that their negative opinions and frequent hyperbole will result in a lawsuit, and a potentially staggering amount of financial penalties.

This emphasis on the statement’s context is particularly applicable in cases involving online consumer reviews. Such reviews must be evaluated in a way that recognizes their informality of expression and tendency toward hyperbole. Like online message boards, review websites encourage a “looser, more relaxed communication style,” allowing users to “engage freely in informal debate and criticism.” Krinsky v. Doe, 159 Cal App 4th 1154, 1162-63 (Cal Ct App 2008). In this setting, “[h]yperbole and exaggeration are common, and ‘venting’ is at least as common as careful and considered argumentation.” Larissa Barnett Lidsky, Silencing John Doe: Defamation & Discourse in Cyberspace, 49 Duke LJ 855, 863 (2000). Online forums for consumer reviews—which are in many ways designed for “venting”—encourage posters to use a different tone, and that is the context in which writers and readers understand the reviews.

The question of how to evaluate online review opinions in defamation actions is one that many courts around the country are facing.  As these suits For example, the United States Court of Appeals for the Sixth Circuit recently held that a TripAdvisor ranking of the “Dirtiest Hotels” on their website was protected, non-actionable opinion because the tone of the list made clear that actual facts were not being stated. See Seaton v. TripAdvisor LLC, 728 F3d 592 (6th Cir 2013); see also, e.g., McKee v. Laurion, 825 NW2d 725 (Minn 2013) (dismissing doctor’s defamation claims against patient’s son who wrote negative reviews on rate-your-doctor websites about the care his father received)  The Reporters Committee urges this Court to take review and establish that framework for Oregon courts.

III. CONCLUSION

For the foregoing reasons, the Reporters Committee urges this Court to accept review of the Decision. If such review is granted, the Reporters Committee expects to file a brief on the merits.

DATED this 24th day of September, 2014.

SOURCE

Newman V. Liles History

McKee V. Laurion History

LEGALLY DUMB

5e7a4-defamation

DECEMBER 14, 2011

“Should a Doctor or Dentist Sue a Patient for Bad-Mouth Comments?”

Stewart Gandolf, Healthcare Success

If a professional reputation is to be protected at all costs, should a healthcare provider file a lawsuit against a patient for a negative online review?

From time to time we see news items about doctors or dentists who threaten legal action against patients. But suing a patient for a negative comment (or comments) is likely to be a bad idea. In fact, it just might be the worst thing to do.

We can sympathize with a practitioner’s frustration and outright anger. Negative comments and online reviews can be untrue, unkind and one sided. What’s more, we’ve never met a doctor, dentist, physician, surgeon or other healthcare provider who isn’t fiercely protective of his or her personal and professional reputation.

Their reputation—real or perceived, in person or online—is the sum of everything they do. And from a physician marketing perspective, their personal and practice reputation is at the heart of their brand and branding message. It’s no wonder that healthcare providers—doctors in particular—are highly sensitive and sometimes nearly fanatical about any and all reflections on their reputation.

We’re not offering legal advice here, but we discussed the concept of online comments with our friend and noted healthcare attorney Stephen Kaufman. He told us, “Sometimes I can convince the website to pull the [offending] comment.  Sometimes, we write a reply. But I have never sued, and I’m hard-pressed to imagine a circumstance where I would recommend doing so.”

And while a lawsuit may “feel” justified, there are good reasons to reconsider the temptation for a dentist or physician to “strike back” in court. From a healthcare public relations and marketing perspective.

The “doctor-sues-patient” story is likely to grab much more media attention than the original patient review. A small local story can suddenly go national. It’s the PR equivalent to throwing gasoline on embers. It’s going to ignite a flash fire with an explosive downside and not much of an upside.

The general public is likely to identify with–and sympathize with–the patient, not the doctor. Other doctors might quietly commiserate a little, but in the larger “court of public opinion” the doctor may be seen as the villain for starting a fight.

The Internet Search Engines will also take notice. Any ensuing controversy about the lawsuit will itself capture high page rankings and will continue to appear in Google search results—and overshadow any positive marketing efforts—perhaps for years.

And then there are the legal costs, the prospect of counter claims and the drain on personal and professional time and resources.

Our comments here do not refer to the merits of any specific situation, and it’s always a good idea to seek professional legal counsel regarding your situation. Physician-rating websites and online reviews and commentary provide patients with a channel to publish their feelings—good, bad or otherwise—about physician performance.

A study published in the Journal of General Internal Medicine found the majority of such reviews (88%) to be positive, six percent were neutral and six percent were negative.

In our experience, the concept of a healthcare provider suing a patient for an “unfriendly” review should be approached with considerable care. It’s likely to be a “legally dumb” healthcare marketing and PR move.

Stewart Gandolf  is CEO of Healthcare Success Strategies, a medical marketing and health care advertising agency. He is also a frequent writer and speaker.

SOURCE

Defendant Dennis Laurion’s Web Posting

Defendant Dennis Laurion’s Patient Complaint

Plaintiff David McKee’s Reply To Patient Complaint

Plaintiff David McKee’s Cease And Desist Letter To Defendant Dennis Laurion

Defendant Dennis Laurion’s Complaint To Minnesota Board Of Medical Practice

Plaintiff David McKee’s Complaint To Sixth Judicial District Duluth Court

Plaintiff David McKee’s Response To Minnesota Board Of Medical Practice

Defendant Dennis Laurion’s Answer To Plaintiff David McKee’s Complaint

Defendant Dennis Laurion’s Motion For Summary Judgment

Defendant Dennis Laurion’s Deposition Extracts

Plaintiff David McKee’s Deposition Testimony About Circumstances Before Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony About Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony About Circumstances After Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony In Response To Questions By Marshall Tanick

Affidavits By Defendant Dennis Laurion’s Parents

Defendant Dennis Laurion’s Supplemental Motion For Summary Judgment

Plaintiff David McKee’s Motion To Oppose Summary Judgment

Defendant Dennis Laurion’s Reply Memo In Support Of Motion For Summary Judgment

Sixth Judicial District Court’s Order On Motion For Summary Judgment

Plaintiff David McKee’s Appeal Of Order On Motion For Summary Judgment

Plaintiff David McKee’s Brief To Minnesota Court Of Appeals

Defendant Dennis Laurion’s Brief To Minnesota Court Of Appeals

Plaintiff David McKee’s Reply Brief To Minnesota Court Of Appeals

Minnesota Court Of Appeals Order To Strike Portion Of Plaintiff David McKee’s Reply Brief

Minnesota Court Of Appeals Announces Decision

Defendant Dennis Laurion’s Petition For Review By Minnesota Supreme Court

Plaintiff David McKee’s Opposition To Review By Minnesota Supreme Court

Defendant Dennis Laurion’s Brief To Minnesota Supreme Court

Plaintiff David McKee’s Brief To Minnesota Supreme Court

Defendant Dennis Laurion’s Reply Brief To Minnesota Supreme Court

Minnesota Supreme Court Decision On David McKee MD V. Dennis K. Laurion

David McKee MD v. Dennis Laurion 2010

David McKee MD v. Dennis Laurion 2011

David McKee MD v. Dennis Laurion 2012

David McKee MD v. Dennis Laurion 2013

McKee V Laurion Is A Textbook Case

Oregon Appellate Court Rules Online Commenter Critical Of Business Can Be Sued For Defamation

March 12, 2014

IN COURT OF APPEALS OF THE STATE OF OREGON

Carol C. NEUMANN

and Dancing Deer Mountain, LLC,

an Oregon domestic limited liability company,

PlaintiffsAppellants CrossRespondents,

v.

Christopher LILES, Defendant-Respondent CrossAppellant.

Lane County Circuit Court 121103711; A149982

Charles D. Carlson, Judge.

Argued and submitted April 12, 2013.

Steve C. Baldwin argued the cause for appellants-cross- respondents. With him on the briefs was Watkinson Laird Rubenstein Baldwin & Burgess, P.C.

Linda K. Williams argued the cause and filed the briefs for respondent-cross-appellant.

Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Lagesen, Judge.*

On appeal, reversed and remanded as to defamation claim, attorney fee award vacated and remanded; otherwise affirmed. Cross-appeal dismissed as moot.

LAGESEN, J.

After attending a wedding at plaintiff Dancing Deer Mountain, LLC, a wedding venue co-owned and operated by plaintiff Carol Neumann and her husband, Timothy Benton, defendant Christopher Liles posted a negative review on google.com. In the review, defendant characterized the venue as a “disaster” and Neumann as “two faced, crooked, and * * * rude to multiple guest[s].” He stated further that Neumann and her husband “changed the rules as they saw fit” by informing guests that they needed to leave the premises earlier than they had originally been told, and that Neumann would find a way to retain any security deposit and charge even more money for use of the facility. Neumann and Dancing Deer Mountain sued defendant, with Neumann asserting claims for defamation and invasion of privacy by false light, and Dancing Deer Mountain asserting claims for intentional interference with economic relations and invasion of privacy by false light. On defendant’s motion, the trial court dismissed the case under ORS 31.150,1 Oregon’s anti-Strategic Lawsuits against Public Participation (anti-SLAPP) statute, concluding both that plaintiffs’ claims fell within the scope of ORS 31.150(2), making them subject to the anti-SLAPP procedures, and that plaintiffs failed to establish a prima facie case in sup- port of any of their claims, as required by ORS 31.150(3). We reverse, concluding that the trial court erred when it deter- mined that Neumann had not established a prima facie case in support of her defamation claim.

BACKGROUND

Defendant attended a wedding at Dancing Deer Mountain. During the event, tensions arose between Dancing Deer Mountain staff, including Neumann, and the wedding party and guests, after staff observed attendees consuming alcohol in a manner that violated Dancing Deer Mountain’s alcohol policy. Those tensions were exacerbated when, at approximately 8:30 p.m. on the night of the wedding, Neumann and her staff began asking guests to leave, in accordance with Dancing Deer Mountain’s requirement, contained in its rental agreement, that the wedding party and guests vacate the premises by 8:30 p.m.

Two days after the wedding, defendant posted a review of Dancing Deer Mountain on google.com. The review, which was entitled “Disaster!!!!! Find a different wedding venue,” stated: “There are many other great places to get married, this is not that place! The worst wedding experience of my life! The location is beautiful the problem is the owners. Carol (female owner) is two faced, crooked, and was rude to multiple guests. I was only happy with one thing: it was a beautiful wedding, when it wasn’t raining and Carol and Tim stayed away. The owners did not make the rules clear to the people helping with set up even when they saw something they didn’t like they waited until the day of the wedding to bring it up. They also changed the rules as they saw fit. We were told we had to leave at 9pm, but at 8:15 they started telling the guests that they had to leave immediately. The ‘bridal suite’ was a tool shed that was painted pretty, but a shed all the same. In my opinion She will find a why [sic] to keep your $500 deposit, and will try to make you pay even more.”

Plaintiffs sued defendant, alleging that by publishing the review, defendant committed the torts of defamation and invasion of privacy by false light against Neumann, and the torts of intentional interference with economic relations and invasion of privacy by false light against Dancing Deer Mountain. Defendant filed a special motion to strike all claims under ORS 31.150. Defendant’s theory was that his online review qualified as either a “written statement * * * presented * * * in a place open to the public or a public forum in connection with an issue of public interest,” ORS 31.150(2)(c), or, alternatively, “other conduct in furtherance of the exercise of * * * the constitutional right of free speech in connection with a public issue or an issue of public inter- est,” ORS 31.150(2)(d), thereby making the anti-SLAPP procedures applicable to plaintiffs’ claims, which arose out of defendant’s online review. In response, plaintiffs submit- ted evidence to support a prima facie case on their claims, in accordance with ORS 31.150(3). Plaintiffs also argued that the anti-SLAPP procedures should not apply to their claims because their claims did not target speech in connec- tion with government: “Anti-SLAPP statutes were created  to allow for unfettered speech in matters of governmental gatherings. They were not intended to apply to cases such as this.”

Following a hearing, the trial court granted the special motion to strike in full. The court entered a general judgment dismissing the complaint without prejudice, and awarding $8,000 in attorney fees, $337 in costs, and a $500 prevailing party fee to defendant. Plaintiffs timely appealed, and defendant timely cross-appealed. On appeal, plaintiffs assert that the trial court erred in two respects: by concluding that their action was subject to the anti-SLAPP proce- dures, and by concluding that Neumann had not established a prima facie case of defamation. On cross-appeal, defendant contends that the trial court erred by awarding him less than the full amount of attorney fees that he requested.

STANDARD OF REVIEW

A “two-step burden-shifting process” governs the resolution of a special motion to strike under Oregon’s anti- SLAPP statute, ORS 31.150. Young v. Davis, 259 Or App 497, 501, 314 P3d 350 (2013). In accordance with ORS 31.150(3), a court must first determine “whether the defendant has met its initial burden to show that the claim against which the motion is made ‘arises out of’ one or more protected activities described in [ORS 31.150(2)].” Id. Second, if the defendant meets that burden, the court must determine whether the plaintiff has “establish[ed] that there is a probability that the plaintiff will prevail on the claim by presenting substantial evidence to support a prima facie case.” Id. (inter- nal quotation marks omitted). Each step of that process presents a question of law. See Young, 259 Or App at 507-10 (whether the plaintiff has established a probability of prevailing presents a legal question); Blackburn v. Brady, 116 Cal App 4th 670, 676 (2004) (whether anti-SLAPP statute “applies to a particular complaint[ ] presents a legal question”)

ANALYSIS

As noted, plaintiffs contend that the trial court erred at both steps of the process governing the resolution of a special motion to strike. They argue that “[p]laintiffs’ complaint is not a SLAPP suit,” and that the trial court therefore erred by concluding that their complaint was sub- ject to dismissal under ORS 31.150. Plaintiffs argue further that, even if their complaint falls within the scope of Oregon’s anti-SLAPP statute, the trial court erred when it concluded that Neumann had not presented substantial evi- dence establishing a prima facie case of defamation. For the reasons explained below, we do not resolve the first alleged error identified by plaintiffs, but agree that the trial court erred when it concluded that Neumann had not established a prima facie case of defamation sufficient to withstand dis- missal under ORS 31.150. Accordingly, we reverse.

With respect to the first alleged error identified by plaintiffs—the trial court’s determination that plain- tiffs’ claims were subject to the anti-SLAPP procedures— plaintiffs do not offer a focused argument on appeal as to why defendant’s online review does not fall into one of the four categories of protected activities delineated in ORS 31.150(2). In particular, plaintiffs do not address defendant’s theory that his review was a statement “in connection with an issue of public interest” published in “a place open to the public or a public forum” under ORS 31.150(2)(c). In fact, plaintiffs do not address the terms of the statute at all, or argue that the text, context, and legislative history demon- strate that the legislature did not intend for online reviews such as the one at issue here to fall within the scope of ORS 31.150(2)(c) or, alternatively, ORS 31.150(2)(d). Instead, relying primarily on law review articles and Illinois cases interpreting the Illinois anti-SLAPP statute4—a statute that is worded differently from, and more narrowly than, ORS 31.150—plaintiffs assert that we “should rule in accor- dance with [those] authorities * * * and reverse the trial court” and that “[t]he same reasoning should apply to the interpretation of every anti-SLAPP statute.”

We recently declined to address a similar argument in Young under similar circumstances, where, as here, the plaintiff did not develop a sufficiently focused argument on appeal as to why the allegedly defamatory statements at issue did not fall within the scope of ORS 31.150(2). 259 Or App at 505 (observing that it is not “our proper function to make or develop a party’s argument when that party has not endeavored to do so itself” (citations and internal quotations marks omitted)). We take the same approach here, both to be consistent with Young and because the trial court’s deter- mination that the online business review at issue qualifies as a protected activity under ORS 31.150(2) is not clearly erroneous. Indeed, we note that the trial court’s interpretation of ORS 31.150(2) to encompass online business reviews appears to be consistent with the plain text of the statute,5 although we do not assess the ultimate correctness of that interpretation at this time.

We nevertheless conclude that the trial court erred by dismissing Neumann’s defamation claim. Contrary to the court’s conclusion, the evidence supporting the defamation claim was sufficient to meet the “low bar” established by ORS 31.150 “to weed out meritless claims meant to harass or intimidate” a defendant. Young, 259 Or App at 508; see also Staten v. Steel, 222 Or App 17, 32, 191 P3d 778 (2008), rev den, 345 Or 618 (2009) (“The purpose of the special motion to strike procedure, as amplified in the pertinent legislative history, is to expeditiously terminate unfounded claims that threaten constitutional free speech rights, not to deprive litigants of the benefit of a jury determination that a claim is meritorious.” (Emphases in original.)). That is, the evidence submitted by plaintiffs, if credited, would permit a reasonable factfinder to rule in Neumann’s favor on the defamation claim, and the evidence submitted by defendant does not defeat Neumann’s claim as a matter of law. Young, 259 Or App at 508-11.

Under Oregon law, a claim for defamation has three elements: “(1) the making of a defamatory statement; (2) publication of the defamatory material; and (3) a result- ing special harm, unless the statement is defamatory per se and therefore gives rise to presumptive special harm.” National Union Fire Ins. Co. v. Starplex Corp., 220 Or App 560, 584, 188 P3d 332, rev den, 345 Or 317 (2008). “In the professional context, a statement is defamatory if it is false and ascribes to another conduct, characteristics or a condition incompatible with the proper conduct of his lawful busi- ness, trade, [or] profession.” 6 Brown v. Gatti, 341 Or 452, 458, 145 P3d 130 (2006) (internal quotation marks and cita- tions omitted). Statements falsely alleging facts that are “likely to lead people to question [a] plaintiff’s fitness to per- form his job” are defamatory per se. L & D of Oregon, Inc. v. American States Ins. Co., 171 Or App 17, 25, 14 P3d 617 (2000) (discussing the holding in Slover v. State Board of Clinical Social Workers, 144 Or App 565, 568-69, 927 P2d 1098 (1996)); see also National Union Fire Ins. Co., 220 Or App at 584-85 (statements that would tend to harm a plain- tiff in his or her business or profession are actionable per se without proof of special harm).

Here, the evidence submitted by plaintiffs, if true, would permit a reasonable fact finder to find in Neumann’s favor on a claim of defamation concerning her profession. Specifically, if true, plaintiffs’ evidence could permit a reasonable fact finder to find that defendant published false statements attributing to Neumann conduct and characteristics “incompatible with the proper conduct of [her] lawful business” of operating a wedding venue, as well as a false statement alleging that Neumann is dishonest.

In particular, that evidence demonstrates that defendant published in an online forum7 statements alleging that Neumann was “rude to multiple guest[s],” that she “changed the rules” by directing guests to leave at 8:15 p.m. after originally telling guests that they could stay until 9:00 p.m., that Neumann “will find a [way] to keep your $500 deposit, and will try to make you pay even more,” and that Neumann is “crooked.” Neumann’s evidence also provides a basis from which a fact finder could find that defendant’s statements were false. Neumann and two others who were present at the wedding that defendant attended submitted affidavits in which they declared that defendant’s statements were not true. And a fact finder could find that defendant’s online statements impute to Neumann conduct that is incompatible with the proper conduct of the opera- tion of a wedding venue. Couples often intend weddings to be significant, once-in-a-lifetime events that (they hope) will be unblemished by breaches in etiquette and unexpected hitches. As Dancing Deer Mountain’s co-owner Benton observed in his affidavit, “no one in their own best inter- est would call a venue who[se] owners” were alleged to have engaged in the conduct that defendant ascribed to Neumann; that conduct is inconsistent with a positive wed- ding experience.

In addition, a fact finder could find that defendant’s statement that Neumann is “crooked,” apart from implying that she is not a wedding vendor who can be trusted, alleges that she is dishonest, and would be defamatory for that reason. See Mannex Corp. v. Bruns, 250 Or App 50, 52, 57-61, 279 P3d 278 (2012) (recognizing that statements that the plaintiff “was a ‘crook[],’ that [a third party] should ‘never want to do business with [the plaintiff],’ and that [the third party] should ‘remember that name’” were defamatory, although concluding that the plaintiff’s claim for defamation failed because the statements were protected by qualified privilege); Durr v. Kelleher, 54 Or App 965, 967-68, 636 P2d 1015 (1981) (affirming trial court verdict awarding damages on defamation claim where “[t]he court found that [the] defendant had maliciously slandered [the] plaintiff by calling him a ‘crook’ and a ‘dishonest’ police officer”).

Finally, because a fact finder could find that defendant’s statements attacked Neumann’s professional or business reputation, and, for that reason, would be defamatory per se, plaintiffs were not required to present evidence of special harm to establish a prima facie case of defamation. See National Union Fire Ins. Co., 220 Or App at 584-85 (statements are per se defamatory if they “tend[] to injure the plaintiff in his or her profession or business”; only when a statement is not slander per se must a plaintiff allege special harm). Plaintiffs nevertheless did present evidence that would permit a fact finder to find that Neumann was harmed by defendant’s statements. Neumann and her co-owner attested to a fairly significant drop in bookings of the venue for weddings almost immediately after the challenged post was made, as well as to expenditures made to mitigate the harm to Neumann’s reputation as a wedding-venue operator. A reasonable fact finder could find based on that evidence that Neumann suffered special harm resulting from defendant’s statements.

Defendant makes several arguments as to why plaintiffs’ evidence is insufficient to establish the prima facie case required by ORS 31.150. For the reasons set forth below, we are not persuaded by them.

First, defendant asserts that his statements were non-actionable opinion. “Opinions, as ‘statements that can- not reasonably be interpreted as stating actual facts,’ are constitutionally protected.” Hickey v. Settlemier, 141 Or App 103, 110, 917 P2d 44, rev den, 323 Or 690 (1996) (quoting Milkovich v. Lorain Journal Co., 497 US 1, 20, 110 S Ct 2695, 111 L Ed 2d 1 (1990)). “Nevertheless, when an ‘opinion’ implies the existence of undisclosed defamatory facts, it is actionable.” Id. Here, notwithstanding defendant’s use of the phrase “in my opinion” at one point in the review, defendant’s statements reasonably could be understood to state facts or imply the existence of undisclosed defamatory facts. By stating that Neumann was rude to multiple guests, defendant, at a minimum, implied that Neumann engaged in conduct that breached the rules of decorum expected at a wedding. By stating that, in his opinion, Neumann will find a way to keep a wedding party’s deposit and then charge more, defendant implied that that is, in fact, what happened at the wedding he attended. The statement that Neumann forced guests to leave earlier than agreed upon is an asser- tion of fact, as is the statement that Neumann is crooked, in the context of the review.

Second, relying on federal cases, defendant asserts that his statements are not defamatory because, in his view, the context of the statements demonstrates that they are figurative, rhetorical, or hyperbolic. See Obsidian Finance Group, LLC v. Cox, 812 F Supp 2d 1220, 1222-25 (D Or 2011), affd in part, revd in part on other grounds, 740 F3d 1284 (9th Cir 2014) (describing test used by the Ninth Circuit to determine whether a statement is opinion or fact for defamation purposes under its First Amendment jurisprudence, and noting several examples of non-actionable hyperbole, figurative language, and rhetoric). To the extent that extra- jurisdictional authority informs our analysis, we disagree that defendant’s statements, as a whole, are hyperbolic. True, some of what defendant says in the challenged post is opinion and is hyperbolic (e.g., “worst wedding experience of my life!”). However, the bulk of the post is nonrhetorical and factual (e.g., “[t]he owners did not make the rules clear”; “when they saw something they didn’t like they waited until the day of the wedding to bring it up”; “[w]e were told we had to leave at 9pm, but at 8:15 they started telling the guests that they had to leave immediately”; “[t]he ‘bridal suite’ was a tool shed that was painted pretty, but a shed all the same”). Those factual details demonstrate that defendant’s statements are not mere hyperbole and, more to the point, would not be brushed off as mere hyperbole by a reasonable reader of those statements. See Wheeler v. Green, 286 Or 99, 104-06, 593 P2d 777 (1979) (analyzing whether recipient of statements would have understood statements to defame the plaintiff in order to determine whether statements were defamatory).

Third, defendant claims that plaintiffs qualify as limited public figures who were required to present evidence that defendant acted with malice in order to establish a prima facie case of defamation. However, the evidence at this stage of the proceedings does not show that plaintiffs are public figures or limited public figures, as that phrase has been interpreted by Oregon courts, and defendant is not a “media defendant.” See Bank of Oregon v. Independent News, 298 Or 434, 441, 693 P2d 35 (1985), cert den, 474 US 826 (1985) (“Two recent cases have held that liability applies where the plaintiff is not a ‘public figure’ and the defendant is not a part of the media.” (Citing Wheeler, 286 Or 99; Harley-Davidson v. Markley, 279 Or 361, 568 P2d 1359 (1977).)); id. at 443 (“Merely opening one’s doors to the public, offering stock for public sale, advertising, etc., even if considered a thrusting of one’s self into matters of public interest, is not sufficient to establish that a corporation is a public figure.”). As a result, Neumann was not required to present evidence of malice in order to establish a prima facie case of defamation under ORS 31.150.

Finally, defendant argues that, to establish a prima facie case of defamation, Neumann was required to present evidence rebutting his affirmative defense that he had a qualified privilege to make the statements that he did, or showing that he abused that qualified privilege. But a claim of privilege is an affirmative defense to a claim for defamation on which a defendant bears the burden of proof. Walsh v. Consolidated Freightways, 278 Or 347, 355, 563 P2d 1205 (1977). On this record, we cannot conclude as a matter of law that defendant was privileged to make the allegedly defamatory statements regarding Neumann.8 See Young, 259 Or App at 507-10 (in resolving a special motion to strike, a court assesses a defendant’s evidence only to evaluate whether the defendant’s evidence defeats the plaintiff’s claim as a matter of law).

Accordingly, we conclude that the trial court erred when it struck Neumann’s defamation claim, and we reverse the judgment of dismissal for that reason. Because plaintiffs have not separately addressed the trial court’s dismissal of the other claims in their briefing on appeal, we do not reverse the court’s decision to strike those claims We note, however, that those claims were dismissed without prejudice – as was required by ORS 31.150(1) – and that the trial court retains its authority on remand under ORCP 23 to entertain proposed amendments to the pleadings, as appropriate. ORCP 23; Allen v. Premo, 251 Or App 682, 685-87, 284 P3d 1199 (2012). Finally, because we have reversed the judgment in defendant’s favor, we also vacate the attorney fee award because it was predicated on the trial court’s determination that the special motion to strike should be granted as to all of plaintiffs’ claims. ORS 20.220(3). Thus, defendant’s cross-appeal, challenging the fee award, is moot.

 CONCLUSION

For the foregoing reasons, the trial court erred by granting the special motion to strike Neumann’s defamation claim. We therefore reverse the trial court’s decision as to   the defamation claim, vacate the attorney fee award, and remand for further proceedings consistent with this opinion.

On appeal, reversed and remanded as to defamation claim, attorney fee award vacated and remanded; otherwise affirmed. Cross-appeal dismissed as moot.

 

Dancing Deer Mountain Wedding Venue Files Lawsuits Against Online Critics

JULY 9, 2011

“Wedding host fights reviews – Dancing Deer Mountain’s owners file lawsuits against people who posted negative online comments”

By Karen McCowan, The REGISTER-GUARD

CHESHIRE — Carol Neumann and Tim Benton created Dancing Deer Mountain nine years ago as a venue for weddings and other special events.

The site, tucked in among towering firs and lush ferns, has a grass-carpeted amphitheater and an open-sided lodge that Neumann and Benton built from trees felled on site. Neumann herself has divided, propagated and tended the mostly native plants lining the site’s paths.

But things haven’t been tranquil the past year for the small business the couple had carefully cultivated to provide their retirement income.

Dancing Deer Mountain bookings took a nosedive about this time last year, thanks to what Neumann and Benton say is a malicious campaign of negative — and false — reviews on Internet wedding sites.

“DO NOT USE THIS VENUE!!!!” began one post. “Upon arriving at this venue it looks perfect! WRONG!!!!!!”

“Beware! The owners of this venue are not cut out to be in the wedding business!” warned another.

“These people are insane!” said a third. “The venue itself is beautiful! However, the owner … is absolutely crazy and in my opinion is in need of professional help.”

In a series of defamation lawsuits filed this year in Lane County Circuit Court, Neumann and Benton say the posts were retribution by members of the bridal party and guests from a June 2010 wedding. The five lawsuits allege that the comments were an effort to ruin Dancing Deer Mountain financially after Neumann repeatedly confronted guests for consuming their own alcohol at the venue, violating a rental agreement signed by the bride’s family.

That contract banned hard alcohol, but allowed an agreed-upon amount of beer and wine to be served by an Oregon Liquor Control Commission-licensed server. Guests began flouting the alcohol rules during a rehearsal the night before the ceremony, the suits allege, prompting Neumann and Benton to review the contract with the bride’s wedding coordinator and send a letter to the bride’s mother warning her not to violate the contract.

But the unapproved drinking continued the day of the ceremony, the complaints say. Some guests became combative when Neumann tried to halt it, and Benton confronted one man for exposing himself while publicly urinating, the suits charge. The evening ended with the pair struggling to get wedding guests to leave by sunset, as the contract stipulated, the suits allege.

Other Internet posts called Neumann “crooked” and said she and Benton “changed the rules as they saw fit” to find a way to keep the bride’s family’s $500 deposit, which the contract allowed them to do if its terms were violated.

The venue had previously hosted “really beautiful, lovely events,” Neumann said. “And one nightmarish experience in all these years might not seem so bad.”

But once the June 2010 party’s “revenge posts” hit the Web, Neumann said, bookings for 2011 weddings dried up. Faced with only a handful of weddings during their May through October season, Neumann and Benton resorted to discounting their rates. Neumann estimates that they lost $20,000 in revenue to the spate of negative postings.

Four of the couple’s lawsuits, filed last month, target unknown defendants. The suits identify the defendants only as Janice, Judy, Julie and June Doe, because their derogatory comments were posted anonymously as “wedding guest” or using screen names such as “Honeyplease” and “derm01.” Another suit was filed this spring against a named defendant, Christopher Liles, because he posted the allegations about the deposit using his own name.

But days after Eugene attorney Steve Baldwin filed the Doe lawsuits as a precursor to seeking the posters’ real identities from their Internet service providers, a Lane County Circuit Court judge threw out the suit against Liles.

Judge Charles Carlson granted an motion filed by Liles’ Portland attorney, Linda Williams, to dismiss the suit under Oregon’s “Anti-SLAPP” law. The judge has yet to rule on Liles’ request that Dancing Deer Mountain pay his legal costs in the case, as allowed under the Oregon law.

Oregon is one of 28 U.S. jurisdictions with laws against what are known as “Strategic Lawsuits Against Public Participation,” according to University of Oregon journalism and law professor Kyu Ho Youm.

The term “SLAPP suit” was coined by University of Denver professors in the 1980s to describe defamation suits — typically by deep-pocketed businesses — aimed at intimidating and silencing “normal, middle-class and blue-collar Americans” who may have testified against them at a zoning hearing or spoken out politically in some other way.

In 1989, Washington became the first state to pass an “Anti-SLAPP” law. It allowed defendants to file motions seeking swift dismissal at the outset of defamation suits if a judge determines that the suit aimed to deter or punish their statements to public officials in the course of government decision making.

Neumann was devastated — and her attorney disappointed — by Carlson’s application of it in the suit against Liles. “Anti-SLAPP suits were intended to keep big business from shutting up the little people,” Baldwin said. “Dancing Deer Mountain is a mom and pop business.”

Oregon journalism and law professor Kyu Ho Youm questioned, however, whether litigation is the best way to counter malicious Internet posts. Rather than trying to shut down their critic’s speech, business owners who feel they have been unfairly maligned could simply drown the negative comments with positive speech from satisfied customers, Youm said. “The beauty of the Internet is that they could neutralize it,” he said. Neumann and Benton tried that, Neumann said. They wrote to the websites that hosted the harmful comments, persuading them to remove the posts as unfair and untrue.

They hired a company, “Review Boost,” to survey and post positive comments from participants in other Dancing Deer Mountain weddings.

But the disgruntled folks the pair believe to be from the June 2010 wedding responded by posting new comments alleging that criticism of the venue was being censored — and posting their damaging remarks elsewhere. “That’s when we decided to take legal action,” Neumann said.

Though a judge has not yet ruled on the Doe cases, they are nearly identical to the Liles suit and thus may also be vulnerable to Williams’ successful argument to dismiss the Liles suit.

The Anti-SLAPP law is designed to protect defendants’ rights to be quickly extricated from weak free speech cases, Williams wrote, adding: “It does not matter if the weak claim is filed by a mom-and-pop business conducted from home or filed by a multinational corporation.”

Williams also argued successfully that Liles’ comments were his opinion in an Internet review, a forum in which “no reader … would have expected an impartial documentary.”

“Most children hear, ‘If you can’t say something nice, don’t say nothin’ at all’ from ‘Bambi,’ ” Williams wrote. “Internet users realize it does not apply online. … The First Amendment allows for free-wheeling opinions.”

Neumann thinks the law is out of balance, however. “I respect First Amendment rights,” she said. “But does free speech take precedence over our right to discover who these (Internet critics) are, to call witnesses, present evidence and have a trial? There has to be a balance.”

Neumann said she and Benton are conferring with Baldwin, trying to decide whether to challenge Carlson’s ruling to the Oregon Court of Appeals, which has never ruled on the matter.

She also is pushing for a legislative remedy. She wrote a letter this week asking U.S. Rep. Peter DeFazio to consider a federal version of the law that would protect the rights of small-business owners to “bring grievances to the courts, in good faith.” “The ‘right to petition’ is among the most precious of the liberties safeguarded by our Bill of Rights,” she wrote the Springfield Democrat.

Source

Read Before You Rant – Online Reviews And Defamation Suits

MAY 25, 2014

“Rants, Raves and Disses — Your Target May Shoot Back”

Gary L. Bostwick, Huffington Post

Simpler Freedom of Speech

An Oregon man wanted to tell the world he had attended a wedding two days before at a place called Dancing Deer Mountain, and if you were looking for a location to get married, this was not the place. It had been a “disaster.” Christopher Liles wanted to express himself, as many folks do, by posting a negative review on the Internet. It may cost him.

Posting is so easy. You think you can say whatever you want on the Internet. Think again.

People reviewed negatively are fighting back, using the law: merchants, restaurants, contractors, physicians, yoga teachers and others — among them, Carol Neumann and her husband, the owners of Dancing Deer Mountain.

It sounds pleasant enough, like a scene from a Disney movie. But Liles wasn’t enchanted. Here’s his post:

[[ Disaster!!!!! Find a different wedding venue.

[[ There are many other great places to get married, this is not that place! The worst wedding experience of my life! The location is beautiful the problem is the owners. Carol (female owner) is two faced, crooked, and was rude to multiple guests. I was only happy with one thing: it was a beautiful wedding, when it wasn’t raining and Carol and Tim stayed away. The owners did not make the rules clear to the people helping with set up even when they saw something they didn’t like they waited until the day of the wedding to bring it up. They also changed the rules as they saw fit. We were told we had to leave at 9pm, but at 8:15 they started telling the guests that they had to leave immediately. The ‘bridal suite’ was a tool shed that was painted pretty, but a shed all the same. In my opinion She will find a why [sic] to keep your $500 deposit, and will try to make you pay even more. ]]

Doesn’t Liles have a right to speak out? Well, as the first issue of this blog told you, “Not always.” Free expression is restricted by the government in many ways, despite what the First Amendment says. One of those ways is by passing laws giving a person harmed by claimed lies the right to go after your money in court.

And that’s what Carol Neumann did. She sued Liles for $7,500, claiming Dancing Deer’s business dropped off severely after the post. So far she has fought off Liles’ attempts to dismiss her case. Neumann and other witnesses say that some of Liles’ statements are false so it is headed for a trial.

But Neumann can’t be compensated for everything Liles said. Can you figure out which statements above are claims the Oregon court says she can sue on and which she can’t?

Don’t be ashamed if you can’t. Liles’ rant is a great example of court cases all over the country deciding whether a person’s statements are “opinion” or “factual statements.”
•    If they are opinion, the law protects our right to express them. The law can’t punish you for opinions, evil or crazy as they might be.
•    But if your statements are facts, you’re fair game for a person who says you’re lying and your lies hurt them.

You ask yourself, “How do I know an opinion when I read it?” As lawyers say, “It’s complicated.” The question keeps lawyers all over the country occupied for many hours a year. Don’t think you’ll find the definitive answer here. It depends on the facts and circumstances in a case, people don’t agree on the answer most of the time and, most importantly, any state or judge may come up with a different result from the state next door or another judge down the hall. And… it’s complicated. But some guidelines are clear.

If someone can’t prove something either true or false, then it’s an opinion. My meal was too cold is an opinion. He broke my rear molar is not. A Wal-Mart was called “trashy.” The court said “trashy” could be interpreted many ways. So the person who said it was safe. Another person stated that a painter had “f***** up the paint job.” No precise meaning there, so it was safe. People were called the “biggest crooks on the planet,” others “boobs, losers and crooks”; the courts said these statements were the kind of extreme speech or juvenile name-calling that readers understand as “exaggerated rhetoric,” roughly speaking, hot-air. Readers wouldn’t believe the speakers really meant the literal words and they couldn’t be proved true or false. (How do you prove someone is a boob or a loser or the biggest crook on the planet?) Those posters were safe. But in California, a Yelp review that accused the poster’s landlord of “abhorrent behavior that (likely) contributed to the death of three tenants” was not OK because they were “facts.” A court said that just because it’s on the Internet, people don’t assume it’s just loose talk or raving. Courts can “… dispense quickly with defamation claims arising from true rants and raves, [but] they do not preclude the courts from taking serious Internet speech seriously.”

Tacking on “IMHO” (in my humble opinion) or a similar phrase won’t protect you. If Susan says, “In my opinion John Jones is a liar,” the reader believes she knows facts proving Jones lied. If she doesn’t also tell the reader those facts, what she said is considered a fact, even if she said it was only her opinion. Sooner or later, she must prove her statement was founded on evidence. Once she does that, they better be correct. If she says, “In my opinion Mayor Jones shows his abysmal ignorance by accepting the teachings of Marx and Lenin,” she’s probably safe if he actually did accept those teachings.

Liles did not protect himself. Most of us don’t. The Internet makes it easy to spout off, so we just type whatever we’re feeling and get it off our chest. That’ll teach ’em!

And as for Dancing Deer Mountain? The appellate court two weeks ago decided that Neumann could go ahead with her case despite freedom of speech, because some things that Liles said were not opinion. Why? Although the court said that “some” of what Liles said was protected opinion, its only example was “The worst wedding experience of my life!” Yep, can’t be proved, so it’s an opinion.

I see other candidates: “there are … great places to get married, this is not that place”; “I was only happy with one thing”; and how in the world can words like “two faced” and “rude” be considered anything but opinion?

The court said Neumann could go forward on her claims based on the whole post including, these statements: “[t]he owners did not make the rules clear”; “when they saw something they didn’t like they waited until the day of the wedding to bring it up”; “[w]e were told we had to leave at 9pm, but at 8:15 they started telling the guests that they had to leave immediately”; and “[t]he ‘bridal suite’ was a tool shed that was painted pretty, but a shed all the same”).

FULL ARTICLE

Carol Neuman V. Christopher Liles Discussed On Kelly Warner Law Blog

MARCH 18, 2014

“Online Review Defamation Case: Venue v. Patron”

Kelly Warner Law Blog

An outdoor wedding venue in Oregon is suing a California resident over a terrible testimonial on Google Reviews. The presiding judge denied the defense’s motion to dismiss, deeming that statements of fact were made and that plaintiff has the right to move forward with the suit.

How This Online Review Defamation Suit Began

Our tale of online review defamation woe began in 2011. That year, friends of Christopher Liles got married at a venue called Dancing Deer Mountain. Apparently, good times were not had by Liles – and he blamed it on the establishment’s owner, Carol Neumann. “Disaster!!!!!” griped the unimpressed wedding guest. He also accused the owners of being “two faced” and “rude,” and quipped, “[the bridal suite was a] “tool shed that was painted pretty, but a tool shed all the same.”

According to Neumann, the venue suffered a severe reversal of fortune from the day the negative review hit the Internet. Instead of doing nothing, Neumann decided to file an online review defamation lawsuit.

Appeals Court Overturns Online Review Defamation Ruling; Advantage Plaintiff

At first, a lower court judge sided with the defendant and dismissed the case, citing anti-SLAPP statutes. But Neumann appealed – and low and behold, the Oregon Court of Appeals overturned the district court decision.

As for the defendant, his lawyer says his client is simply hyperbolic and was only expressing his strong opinion on Google Reviews.

An appeals judge, however, overturned the lower court’s decision. The judges ruled that the Josephs should be allowed to continue with case because the paper made factual statements that could be proven false.

Speak With An Online Review Defamation Lawyer

Are you entangled in a defamation situation? Are you interested in learning more about your legal options when it comes to online review defamation?

VISIT WEBSITE

Carol Neuman V. Christopher Liles Detailed By Robert Schenck

June 2, 2014

“When Does a Bad Review of a Wedding Business Constitute Defamation? Online Reviews of Wedding Vendors: Defamation or Free Speech?”

Robert Schenck, WEDDING INDUSTRY LAW

“Tinnnnnnnnnnnnnnnnnnn roof. Rusted. Get it? It’s a LOVE shack.”

[[ There are many other great places to get married, this is not that place! The worst wedding experience of my life! The location is beautiful the problem is the owners. Carol (female owner) is two faced, crooked, and was rude to multiple guest. I was only happy with one thing. It was a beautiful wedding, when it wasn’t raining and Carol and Tim stayed away. The owners did not make the rules clear to the people helping with set up even when they saw something they didn’t like they waited until the day of the wedding to bring it up. They also changed the rules as they saw fit. We were told we had to leave at 9pm, but at 8:15 they started telling the guests that they had to leave immediately. The “bridal suite” was a tool shed that was painted pretty, but a shed all the same. In my opinion She will find a why to keep your $500 deposit, and will try to make you pay even more. ]]

Dancing Deer Mountain has 11 Google reviews.  Nine of the reviews rate the respected Oregon wedding venue 5 stars.  Two of them, including the one above, rated the venue 1 star.  Carol Neumann, the owner, said business plummeted following the review by Christopher Liles, who had attended a wedding at Dancing Deer Mountain in 2011.  Neumann responded by suing Liles for defamation, requesting $7,500 in damages.  The trial court dismissed the case.

Defamation Defense: Anti-SLAPP

Oregon has an anti-SLAPP (Strategic Lawsuits Against Public Participation) law designed to protect speech in a public forum, including websites like Yelp, Angie’s List, and Trip Advisor.  Lawmakers intended for the statute prevent corporations with deep pockets from filing meritless lawsuits to chill public discussion.  In addition to Oregon, 27 other states, Washington D.C. and Guam have an anti-SLAPP law with California’s statute being the oldest. Unfortunately, differences between the statutes, as well as what kind of speech each statute actually protects, has caused a great deal of confusion for the courts.  And while the anti-SLAPP laws protect individuals against lawsuits by massive corporations, they can also prevent small businesses from protecting themselves against malicious, anonymous internet posters.

The Oregon law allows the court to dismiss a defamation claim in the early stages of litigation if an oral or written statement was made in a place open to the public and in connection with an issue of public interest OR if it was a constitutional exercise of free speech in connection with a public issue.  The trial court held that Liles was exercising a constitutional free speech right.  In April 2013, the Oregon Court of Appeals overturned the trial court and said the lawsuit should continue because Neumann demonstrated that the lawsuit wasn’t meritless.

How Is the Wedding Professional’s Claim Presented?

To win a defamation claim, a plaintiff must show the publication of an untrue statement that tends to lower the reputation of the subject in the community (read more about Wedding Vendor Defamation here). Here, Neumann will have to show that Liles’s statements – “the ‘bridal suite’ was a tool shed that was painted pretty, but a shed all the same” – is false.  Because it was an internet post, it was published by Liles for anyone to view.  And Neumann will have to demonstrate she lost business because of the damage to her reputation.

Further, statements of opinion can’t be defamatory, but the opinion can’t imply facts.  For instance, whether a student athlete regarded hockey as a priority is pure opinion.  But, where a TSA agent reported that a man needed to be removed from a plane due to his mental status implied a fact that could be proven.

Liles argued that his Google review was hyperbole and opinion.  The Court of Appeals said that a jury could think differently about much of his post.  Statements like, “the owners did not make the rules clear,” and “we were told we had to leave at 9pm, but at 8:15 they started telling the guests that they had to leave immediately,” could be facts that seriously damage Neumann’s reputation.

Now we’ll see what a jury will think.

FULL ARTICLE