Wedding photographer avenges couple’s attacks
Business owners stung by unfair or dishonest online reviews might take heart from a story out of Dallas this past summer.
It seems a local beauty and lifestyle blogger got married. As might be imagined, her online fans heard all about the extensive preparations for the exciting day. They also learned about the couple’s disagreement with their wedding photographer. After having chosen 80 prints from 4,000 lowresolution proofs, the couple balked at paying a fee for the cover of their wedding album. The photographer, pointing out that the charge was spelled out in bold print on the contract, insisted on being paid in full before releasing the final high-res images. The total amount in dispute? $125. But the couple was determined not to pay.
According to court records quoted by the Washington Post, the bride wrote to a friend, “We are hoping that our story makes the news and completely ruins her business.” The groom expressed a similar wish in language the Post represented by a series of dashes.
The couple did indeed get themselves on local news, forlornly displaying empty picture frames. The reporter, describing the couple’s precious memories as “hostages,” inaccurately said “the contract doesn’t mention anything about” the album cover fee. (The TV station ran a correction a few days later.)
The couple went fulltilt on social media, too — Facebook, Instagram, Wedding Wire, and of course Yelp. Anonymous users employing a variety of screen names piled on. Words such as “scam,” “steal” and “ransom” were used. “Pretty sure her business is done,” the vengeful bride exulted in writing.
It was. With clients frightened off, the photographer had to close her studio. So she sued. Her case went to a Dallas jury on two legal theories: defamation, meaning an attack on personal reputation, and commercial disparagement. The jury found for the photographer on both theories, awarding a $1 million in damages.
The tort of commercial disparagement, sometimes called injurious falsehood or just plain disparagement, exists to protect a business from the harm caused by false statements of fact. For a business owner tormented by vicious online reviews, it offers a way to fight back. But disparagement is deliberately hard to prove. That’s because all of us, as red-blooded American consumers, have an absolute right to tell the world how much we hate any given restaurant or store or other business.
Inviting customers into your business means inviting your customers to form an opinion about your business. Opinion, no matter how hatefully expressed, can never provide the basis for a disparagement lawsuit. Criticism shades over into disparagement only when it involves a false factual statement. That’s clear enough in theory. In practice, the distinction between fact and opinion is sometimes blurry. For instance, it’s not always easy to tell on which side of the line hyperbole falls (“their tortillas have the consistency of wet socks”). But, as the Dallas beauty blogger discovered, deliberately misstating the terms of a written contract is always going to count as false.
But even the most blatant falsehood, by itself, isn’t enough to establish the tort of disparagement. The false statement must have been made with the intent or expectation of harming the business’ bottom line.
The tort doesn’t prohibit careless gossip. Nor is it enough that a statement might make some potential customers think twice about patronizing the business. All reviews can do that, even positive ones, since people differ so widely in their preferences. That’s why
the Dallas couple’s texts and emails, revealing their wish to ruin the photographer’s business, were such damning evidence against them.
Finally, the business must suffer a monetary loss directly attributable to the false statement. The photographer was able to draw a straight line from cause to effect because her business dried up almost overnight after the local news story broke and the online campaign launched. But in most cases a business owner will find it difficult or impossible to prove loss of income resulting directly from an online review, no matter how unjustified or just plain nasty that review might be.
Responsible reviewing platforms take precautions against becoming vehicles for disparagement. Yelp’s guidelines, for instance, require that reviews be “factually correct.” Wedding Wire prohibits posts that are “slanderous.” Google asks that reviews be “honest” and “trustworthy.” Many sites allow users to flag inappropriate content, and most provide avenues of complaint. An appeal to the site should be a business owner’s first line of defense against unfair and dishonest reviews.
A disparagement lawsuit is a big bazooka, not well-suited for fending off a swarm of gnats. But in certain desperate circumstances, it can be tremendously effective.
Joel Jacobsen is an author and has recently retired from a 29-year legal career. If there are topics you would like to see covered in future columns, please write him at legal. column.tips@gmail.com