RELITIGATING BAD PUBLICITY IS A BAD IDEA

'There's no such thing as bad publicity' is often associated with Phineas T. Barnum, the 19th century American showman and circus owner. But in these days of the web, Yelp, Google, etc., that may not be true and some consumers have taken their right to an opinion to the extreme.

On December 16, 2016, an action for defamation was commenced by a real estate broker against a defendant who created a website entitled “{NAME OF BROKER}.com – The Worst Broker Ever!” which, as the court described, was a "five-page running narrative regarding defendant’s negative experience using plaintiffs’ real estate services. Plaintiffs alleged causes of action for libel, and intentional and negligent infliction of emotional distress." The court denied plaintiff's motion for summary judgment finding by order dated July 25, 2018 "that plaintiffs’ libel claim was not actionable because defendant’s website, as a whole, was “pure opinion" … that defendant’s opinion about {NAME OF BROKER} being the “worst broker ever” was based on so-called “facts” – such as {NAME OF BROKER} failing to appear for a property closing ( see Steinhibler v Alphonse , 68 NY2d 283, 289 [1986] [“A pure opinion is a statement of opinion which is accompanied by a recitation of the facts upon which it is based”]). In particular, this court found defendant’s website, as a whole, to be a consumer criticism, which is not subject to libel claims ( see Themed Restaurants, Inc. v Zagat Survey, LLC , 21 AD3d 826, 827 [1st Dept 2005] [highly critical comments from reviewers in the Zagat guide of a female impersonators cabaret were mere opinion and thus protected]).  Subsequently, defendant moved to dismiss the complaint and the court granted the action in 2019.

This decision was not published or reported but around the time of the decision, it appears that the defendant took down the website. So this would appear to be the end of the story but....

However, in January of this year, the plaintiff moved for re-argument which the court denied be decision dated April 13, 2020. And that decision was reported and the name of the broker was revealed to anyone who reads and reports on court decisions. The lesson - don't litigate bad publicity. If a bad review is plaguing your small business, litigation is not a way to go about dealing with the situation.