Q: We stayed at a vacation rental. It was not a quality residence, and we felt it made sense to post about our experience. We have now received a “cease and desist” letter from a lawyer, which indicates we have to retract the post or remove it, and if not, we may have a lawsuit on our hands. Do we have to comply?
W.B., La Habra
A: There is an expression “no good deed goes unpunished.” I suspect your reason for posting the review was to inform others who may think of renting that location, and possibly also to get the owner to fix the place. Your “reward” is an attorney jumping down your throat.
To be able to assess the situation, it would be necessary to review what you posted. Some basic questions arise: Is your post truthful? If it is, truth is a defense to defamation. In addition, statements of opinion are protected. For example, if you post, “We think this is not a place worth what they are charging,” that would likely be deemed an expression of opinion, not a factual claim. Further, California has the Anti-SLAPP law (Strategic Lawsuit Against Public Participation), which is designed to seek to promptly dismiss lawsuits that try to silence people for speaking their minds.
So did you knowingly make a false statement? Did you accuse them of criminal conduct without any basis? Did you threaten, harass or disclose some confidential information? If not, you may well defeat any claim brought, and I have to wonder why the owner can’t simply refute online what you posted. The dilemma remains a concern that the lawyer who wrote to you is going to take legal action, which at minimum will cost you some stress and bucks. Thus, if you are sufficiently worried, consult with qualified counsel.
In closing, I want to be able to say “the lawyer is huffing and puffing,” but there is no way for me to be able to make that determination without more details.
Q: We breed dogs. Another breeder has now posted very derogatory remarks about us. What can we do about this? We consider it absolutely false and harmful to our reputation and business.
C.S., Corona
A: If you are giving serious thought to taking legal action, first evaluate if, in fact, what has been posted meets the legal threshold for defamation. You have to prove (a) publication, (b) the statement pertains to you (and/or your business), (c) it is false, (d) the person acted improperly and (e) damage has ensued.
One thought is that a cease and desist letter may be called for, insisting that the item be removed from the platform where it was posted, as well as cessation of further defamatory statements, and possibly a public retraction or apology. The cease and desist letter will contain a deadline for compliance.
Also, report the offensive content directly to the social media platform; most have policies that prohibit defamatory content, and some have mechanisms for reporting violations.
If these efforts do not resolve the matter, a defamation lawsuit would typically be the next step. I have seen where a party published what I would call a “stinging rebuttal” to the remarks made, and not taken formal legal action. After all, lawsuits are not fun, can be costly and can be risky. So before going forward in court, make sure you have a good grasp of your chances of prevailing, the risks you face and just who you should pursue; claims against the party who made the post are often treated differently from claims you might include against the media platform (which has a level of statutory protection). Also, be sure to comprehend that seeking injunctive relief (asking that the court to require one or more of those sued to take certain action) is different from asking for monetary damages.
Ron Sokol has been a practicing attorney for over 40 years, and has also served many times as a judge pro tem, mediator, and arbitrator. It is important to keep in mind that this column presents a summary of the law, and is not to be treated or considered legal advice, let alone a substitute for actual consultation with a qualified professional.