It’s March, which means that wedding season is nearly upon us. Let’s say you run your own wedding-related business with one employee: you. A customer gives you a review on the internet that is not only negative, but contains false statements. Who is harmed by this false review: you, your business or both? And if you want to sue the former customer, what is your cause of action? Defamation, trade libel, false light invasion of privacy . . . all of the above? Does it matter?
Yes, it matters. In Gillon v. Bernstein, District of New Jersey Judge William Martini deftly pared down a messy seven-count complaint alleging reputational harm and, in doing so, let us know how to disparage – but not defame – our wedding planner.
The Bernstein Wedding
Honey Bernstein of Orange County, New York was planning her son’s wedding and needed a band. She found the website of Iris Gillon, an event planner and music booker who, in connection with her wedding planning work, had appeared on The Apprentice and Platinum Wedding.
Bernstein hired Gillon to take care of the music for the ceremony and reception. The wedding seems to have gone fairly well, except that Bernstein’s electrician had to work a little overtime to make sure there was enough electricity for the band’s equipment. But Bernstein was not happy with Gillon’s work and, a few days later, Bernstein posted a review of Gillon on RipoffReport.com which stated:
Way below par Service – did not get what was contracted for . . . My son got married this past weekend and (1) the singer was awful (2) the number of musicians promised did not show up (3) the band leader had no personality whatsoever . . . the band’s electrical requirements that iris sent me were all wrong and my electrician, at an enormous expense, had to work the night of the party, in the rain, to make sure that there was enough power.
When Gillon complained to Bernstein about this post, Bernstein announced her intention “to post my opinion in as many places online as I can find.”
The Musician and the Electrician
Gillon filed a six count complaint, later amended to seven counts. Five of the seven counts were redundant variations on the tort of libel (libel, libel per se, libel innuendo, injurious falsehood, defamatory injury to reputation), which the Court treated more or less as one defamation count. In addition, Gillon’ s complaint included counts for commercial disparagement and false light invasion of privacy.
Bernstein moved to dismiss, arguing that her review was no more than pure opinion. The Court agreed with respect to most of the review: statements like “the singer was awful” and “the band leader had no personality” were clearly opinion, even if hyperbole (only lawyers have no personality).
However, two statements in Bernstein’s review survived the motion to dismiss and eventually had to be sorted out on summary judgment. The first statement was with regard to the “all wrong” electrical specifications. It turns out that Bernstein never gave Gillon’s electrical specifications to the electrician, so whether or not they were “all wrong” was somewhat beside the point (plus there was evidence that they were not in fact wrong at all).
The second allegedly false statement that survived the motion to dismiss was a bit more baffling. Bernstein complained that she contracted for a six-member band, but only three members actually showed up at the wedding. The reason this statement was baffling was that there were all sorts of wedding photographs of Bernstein and her guests dancing . . . in front of a six-piece band.
So this was a slam dunk defamation case for the wedding planner, right? Actually no, she lost.
Defamation v. Commercial Disparagement
Defamation (called libel when in writing and slander when spoken) and commercial disparagement (also known as “trade libel” and “product disparagement”) have similar elements. Both involve a reputation-harming false statement of purported fact, published by the defendant to third persons with the requisite level of fault (actual malice if the plaintiff is a public figure, negligence for private figures). However, they differ in at least two key respects, as described by Judge Martini.
The first difference is obvious. Defamation is concerned with the reputation of a person. Commercial disparagement, on the other hand, which is an offshoot of the business tort of tortious interference, is concerned with the reputation of a product or service.
The second difference is that in most cases it is much more difficult to prove the harm element of commercial disparagement than the harm element of defamation. In a defamation action, false statements about a person’s fitness for their occupation or trade are often presumed to cause harm. But in a commercial disparagement action, harm is not usually presumed; instead, you have to prove “special damages,” that is, you have to be able to point to actual instances of lost business, or at least show that you suffered actual pecuniary harm, as a direct result of the injurious statement. In other words, you have to get real specific.
How to Disparage but not Defame
So, let’s say you are a wedding planner. A false statement about your business can harm both your reputation and the reputation of your services. You could try to sue for defamation, or commercial disparagement, or both. But since they are both essentially the same tort, and since defamation is easier to prove, couldn’t you just sue for defamation and avoid the headaches of a commercial disparagement claim?
It turns out the New Jersey common law is way ahead of you. New Jersey courts want it to be harder for companies to sue for reputational damage to products and services than it is for individuals to sue for harm to their personal reputation. Accordingly, New Jersey courts add an extra element to defamation when it concerns a product or service. In such cases, the defamatory statement must be more than simply false and capable of damaging a reputation: it must also impute reprehensible conduct or deliberate perpetration of a fraud upon the public. So yes, as a solo business person you can just bring a defamation claim and avoid the headaches associated with a commercial disparagement claim, but in doing so you get a new headache associated with your defamation claim.
As a practical matter, this means that if you falsely accuse your wedding planner of being bad at her job, but not of intentionally ripping you off, you have disparaged her, but you haven’t defamed her . . . at least in New Jersey. That is what Judge Martini found happened here. Neither statement by Bernstein (about the musicians or about the electrician) accused Gillon of reprehensible conduct or fraud on the public. At worst, they just alleged incompetence. Therefore, they were not defamatory, and summary judgment was granted against the defamation counts.
Ok, so where does that leave the claim for commercial disparagement? Bernstein’s statements may not have been defamatory but they were false, they were possibly uttered with the requisite fault, they were published to third parties and, according to the Court, they were capable of being disparaging. Only more element to go: special damages. Could Gillon prove them?
No, she couldn’t. Gillon had evidence of one contract that was canceled, but she redacted the names from the contract, and the Court held that she had therefore failed to identify a specific lost customer. The Court also rejected Gillon’s other attempts to show special damages, including the opinion of a wedding industry analyst who did not submit his résumé to the court, and whose expert report the Court concluded was “woefully” inadequate. The commercial disparagement claim, like the defamation claims, was dismissed.
This left standing only the false light invasion of privacy count, but not for long.
False light, like commercial disparagement, is a tort that overlaps with defamation but has its origins in another branch of the law: in this case privacy. We’ve previously written about that overlap here. Both torts require false statements that cause harm, but whereas a defamatory statement harms a person’s reputation in the eyes of an average community member, a false light statement depicts the plaintiff in a manner that “would be highly offensive to a reasonable person.”
Many states (including Massachusetts and New York) see the above semantic distinction as lacking a practical difference, and refuse to recognize the false light tort at all. New Jersey recognizes it, but in this case Judge Martini held that it was not applicable as a matter of law. A false light statement must “constitute a major misrepresentation of [A plaintiff’s] character, history, activities or beliefs.” According to the Court, accusing someone of miscounting the number of band members or electrical outlets just didn’t fit that bill.
Therefore, the Court granted summary judgment to Bernstein, and Gillon’s complaint was dismissed in its entirety. Gillon’s motion for reconsideration was denied on January 17, 2017. Gillon filed a notice of appeal in February.