The Oregon Supreme Court recently addressed online defamation in a defamation case filed over an online Google review made by an individual. The case, Neumann v. Liles, 358 Or 706 (2016) was decided by the court on March 3, 2016. In that case, a guest had attended a wedding ceremony that was hosted by a business on a property owned by a business. The business was in the form of an limited liability company, and the Plaintiff (whose first name is Carol – which becomes important due to the review in question) was an owner of the LLC.

The online review posted by the defendant was titled “Disaster!!!!” and it 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 guest[s]. 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 [s]he will find a why [sic] to keep your $500 deposit, and will try to make you pay even more.” (Id. at 709).

The primary issues in the case were whether the content of the review was subject to first amendment protection because it involved a matter of public concern, and whether the statement implies the assertion of an objective fact.

Initially, the court concluded that if true, several of the statements were defamatory (Id. at 719-720). Because it was written, it would be libel, if defamatory. However, the court proceeded to apply a first amendment analysis to see if the review was protected first amendment expression. The court found that the review in question stated a matter of public interest because it was on a publicly available website and concerned matters of general interest to the public, in particular, those interested in finding wedding venues.

Next, the court used a three part analysis to determine whether a reasonable factfinder could determine that the review implied assertions of objective fact. If a reasonable factfinder could so conclude, the review was actionable as a defamation claim. The three part test, borrowing from the ninth circuit, is:

“(1) whether the general tenor of the entire publication negates the impression that the defendant was asserting an objective fact;

(2) whether the defendant used figurative or hyperbolic language that negates that impression; and

(3) whether the statement in question is susceptible of being proved true or false.”

(Id. at 719)

Applying the three part analysis the court concluded that the review was an expression of opinion on matters of public concern. Id. at 722.

The opinion also discusses the Oregon anti-SLAPP statute. As the case was initially dismissed on a special motion to strike brought under the Oregon anti-SLAPP statute, the defendant in the lawsuit was entitled to recover reasonable attorney fees. SLAPP stands for Strategic Lawsuits Against Public Participation, and Oregon’s statute is found at ORS 31.150 – 31.155. The policy is to provide some protection for the assertion of matters of public importance, as large companies and others with big pocket books will sometimes bring suits against people who are making “too much noise” or drawing unwanted public attention to an issue.

There are a couple takeaways from the opinion. First, online reviews about businesses are probably going to be subject to a first amendment analysis. Secondly, opinions about businesses are not actionable in such a context as a defamation claim. However, some of the lines drawn in the case were pretty narrow. For example, there were implications of dishonest handling of money in the statement about the deposit, but the court concluded because the reviewer was only a guest, that those statements viewed in context did not imply assertions of objective fact because the guest had not paid any deposit. So, the protection is fairly narrow. The more that a review can be viewed as implying factual characteristics, the easier it is to conclude that it would not be shielded by the first amendment.

So, while the case opinion describes some of the parameters of a safe harbor, it should also be read as a warning – online reviews are actionable as defamatory if they imply objective facts that could be proved true or false.

The foregoing article is intended as informational only and should not be interpreted or construed as legal advice.

Beaverton attorney Brad Schrock of Schrock Law Office PC has in-depth legal experience representing businesses in a broad range of legal issues, including those involving technology, internet, applications, licensing and litigation.