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Sep 23 2015

Harsh Yelp Review Leads to $1,000 Damage Award But Biggest Harm is to Free Speech Rights

Emily Fanelli hired a company called Mr. Sandless to refinish the floors in her Staten Island home for a fee of $695. Fanelli wasn’t happy with the finished product, or the “corrective actions” the company took after she complained. So she did what many other disgruntled consumers have done before – she complained online.

She started on silive.com, where she had found Mr. Sandless in the first place, and blasted the company and its owner, Matt Gardiner, calling him “a liar and a con artist.” She then went on the customer review website Yelp, where she went on a typical Internet rant complete with grammatical issues galore:

“this guy mat the owner is a scam do not use him you will regret doing business with this company I’m going to court he is a scam customers please beware he will destroy your floors he is nothing by a liar he robs customers, and promises you everything if you want s— then go with him if you like nice work find another he is A SCAM LIAR BULL—-ER,” she wrote.

yelpStill upset, she went on Yelp two weeks later, complaining about her floors and urging anyone thinking of hiring Gardiner to email her for more information. Gardiner filed suit in Staten Island Supreme Court seeking $750,000.00 in damages. Judge Phillip Straniere ruled in Gardiner’s favor finding that Fanelli crossed over the line from commentary to libel:

“Terms such as ‘scam,’ ‘con artist’ and ‘robs’ imply actions approaching criminal wrongdoing rather than someone who failed to live up to the terms of a contract. They were personal in their invective and were designed to impugn his integrity and business practices with the intent to damage his business reputation,” Straniere wrote.

I guess Judge Straniere doesn’t spend a lot of time on the Internet or at least in reading the comments that follow posts. Would anyone reading Ms. Fanelli’s posts really believe she meant that Gardiner was actually “robbing” her of actually participated in a “con game?” Of course not. Most folks would understand something we lawyers call “CONTEXT.” And on an interesting note – the same judge found that Gardiner was not entitled to $400 owed him because he was unlicensed at the time of the work he did for Ms. Fanelli. So why isn’t that a “con”? It is illegal to perform contracting services without the proper license so did Ms. Fanelli use “truth is a defense”

Matters of opinion are protected speech. Any clear reading of Ms. Fanelli’s posts would see that she was engaging in her First Amendment right to criticize others. I would also have liked Judge Straniere to point out that the plaintiff got a whopping $1,000 less the $400 he couldn’t get, for a total net gain of $600. I hope Ms. Fanelli reaches out to eh ACLU or the NYCLU for help in an appeal. In fact Yelp should offer to pay for it as well because if over-the-top rants on Yelp can be actionable – then we are going to need to build bigger courthouses.

Follow me on Twitter @oscarmichelen

5 comments

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  1. Gloria Wolk

    I have never found ACLU to care about individual rights. Public Citizen does have a keen interest in protecting the 1st Amendment. I don’t recall if they accept cases filed in state courts..

    1. Oscar Michelen

      The ACLU would be seeking to protect Yelp and Yelp commenters – a case like this could do great harm to Yelp if people begin to worry that hey may be sued because of negative reviews.

  2. emilyfanelli@Aol.com

    Oscar where do i stand with this emily fanelli

  3. Oscar Michelen

    It is up to you to pursue an appeal and to see if the ACLU or other civil rights organization will help you but your time to appeal has likely expired.

  4. Emily Fanelli

    No I have already appealed this

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