When Is It Okay to Write a Bad Review of a Client?

If I had a dime for every time a client complained to me that a customer violated a contract, well thankfully I’d only have like 50 cents. But still, it does happen. And when it does the client sometimes asks me if it’s okay to write a bad review online. That’s when I hesitate.

Whenever possible, You should never badmouth a party in public at all… yes even one who acts in bad faith. But if you’re absolutely going to do it no matter what, you should definitely wait until you’ve recouped what you’re owed (or as much of it as you can) from them and acquired a written history of their bad faith actions. Even then I’m hesitant to advise it. I’m a big fan of killing them with kindness no matter how badly you’re treated, because if you’re ever involved in a litigation, all of your communications will come out in discovery; you don’t want a judge or jury thinking YOU’RE the asshole in this transaction.

Most people don’t write bad reviews when they’re in a good frame of mind. They’re upset - understandably so - but not necessarily thinking clearly about the long-term effects of their actions. So it’s really easy for a person who has been harmed and is mad about it to overstep and accidentally defame the offending party. And the last thing you want is to be sued for defamation when you’re the victim.

There’s a fine line between warning people of bad faith operators and defamation. Defamation is defined as a statement to at least one other party about a person designed to ruin that person’s reputation. Usually the statement must also be false, but that is not a requirement in every state. When the defamatory statement is spoken, it is called slander, when it is written or otherwise recorded, it is called libel, but no matter what form it takes, the effect is the same. 

Your intent in making the statement also matters, as well as the defamed party’s public status… if the party is a public figure (politician, celebrity, etc), for example, your statement must be made with malicious intent, while a statement against a private figure must only be made with negligence. It’s also worth noting that simple name-calling is generally not considered defamation and statements of opinion might also not be considered defamatory (depending on context, of course) since they are harder to prove.

Here are some examples:

“Don’t work with John Smith Productions. They purposely stole my idea and cut me out of the production without paying me!” This is most likely defamation if the statement is false because it asserts as fact that the production company stole your work (on purpose, no less).

“I think John Smith Productions used my copyright without asking me.” Because this is a statement of opinion, it is less likely to be considered defamatory, though it wouldn’t necessarily prevent the production company from suing you anyway, especially if the statement is untrue.

“John Smith Productions is filled with conniving thieves and John Smith is the worst of them all!” Whether or not this is factually true, because this statement is merely name calling and doesn’t allege actual wrongdoing, this would not be considered defamatory.

What I tell people who are determined to write a bad review online is this: divorce yourself as much as you can from emotion. Statements of fact that you can actually back up with evidence are best. And of course, make sure that whatever you say is TRUE. When in doubt, be kind and truthful. Just because you were treated badly doesn’t mean you have to become the bad guy too.

Don’t Accuse People of Being Murderers on TV

Ten years ago I was an associate producer on a Court TV show that was investigating wrongful conviction claims. Each episode would center on a man or woman serving life in prison for a murder they say they didn’t commit. During one particular episode, I felt we had really solid circumstantial evidence that the real killer had gotten away. I was so sure this other guy - I’ll call him “Dave” - was the real killer that I had written some voiceover accusing him of it. 

We sent the rough cut with my temp voiceover to our lawyer before passing it to the network for notes. A day later, the lawyer called me and told me to rewrite the voiceover. I didn’t understand. If we had the evidence why couldn’t we say we thought Dave was the guy? He told me that we could talk about the evidence, we could even discuss if other people thought Dave was the real killer, but we couldn’t directly accuse him since we didn’t want him to sue us for libel. I continued to push back and he very patiently told me that I was out of my fucking mind and hell would freeze over before he’d allow the voiceover as I'd written it to get sent to the network.

Of course now I totally get it. 

Last week, CBS aired a mini-series about the 1996 murder of JonBenet Ramsey. What’s shocking is that the investigators openly and brazenly stated their belief that the Ramsey’s son, Burke, 9-years old at the time, was responsible for the murder and that Burke’s parents staged a more elaborate crime scene to protect their son. According to one of the investigators:

“I think Burke was upset about circumstances or Christmas presents, he probably would have been upset about her trying to snag a piece of pineapple. Out of anger, he may have struck her with that flashlight. I think we all agree on that.”

What’s not so shocking is that Ramsey’s attorney, L. Lin Wood, is now threatening to sue CBS for its “lies, misrepresentations, distortions and omissions.” CBS’s response to the threat? “CBS stands by the broadcast and will do so in court.”

Why would CBS allow its on-camera talent to accuse someone of murder? I have a couple of theories.

1. CBS ended the broadcast with a disclaimer that the opinions of the investigators were just opinions on one of a number of possible theories. Maybe they thought the disclaimer was sufficient to protect them.
2. Maybe they felt the case was so well litigated in the public sphere that any accusations against Burke were old hat.
3. Maybe CBS felt that its reputation as a news gathering organization was enough to shield them from liability since the standards for news are different than those for documentaries.
4. Maybe CBS was tired of using hedging language (more on that below) and wanted to come up with something that gave closure to a 20-year old cold case.
5. Maybe they got some bad legal advice.

Whatever the reason, CBS is now staring down the barrel of a defamation lawsuit. In order for the Ramseys to win on a defamation claim, they would have to prove that 1) the statements made against them in the doc were false (i.e. since Burke was never charged, there’s no factual basis for accusing him), that 2) the statements were made with some level of negligence, and 3) the statements caused some actual harm to their character or reputation.

All told, I don’t think this would be hard to prove. But CBS may have an ace up its sleeve, which could account for its confident posturing against Wood. The Ramseys may be private citizens, but they are publicly known for this case; accusations having swirled around them for the last 20 years. CBS is likely to make the argument that they aren’t merely private figures, but instead “limited purpose public figures.” A limited purpose public figure is someone who has become well-known because of a particular issue. It’s not hard to envision a judge or jury buying that argument. Which means if they are indeed limited purpose public figures, the standard for proving defamation is much higher. In that case, they would have to show that CBS allowed false statements about them to be broadcast with actual malice, not negligence, which is typically reserved for private figures only. That is, an actual intent and desire to harm the Ramseys’ reputations further. It’s not an easy bar to meet and if this case goes forward, my money is on CBS A) winning, or B) settling with the Ramseys for a moderate sum.

I’m not sure if I find the initial accusation against Burke or CBS’s stoic attitude more shocking. Is it reckless? Who can say? CBS has been around long enough that I find it hard to believe they'd make a rookie mistake like this. My guess is they know what they’re doing (or at least think they do) and are betting on it working out in their favor. 

But it’s worth pointing out that many lawyers, myself included, prefer hedging language that either couches accusations behind known facts or is so squishy that an accusation can’t be reasonably implied. It’s why all criminal suspects, no matter how guilty they clearly are, are always referred to as “alleged.”  It’s why after a conviction, they are referred to as “convicted.” You’re not accusing anyone of murder by stating that they’re “accused of an alleged crime.” That’s just telling the audience the legal status of a suspect. That’s why saying “X says Y is the killer” is much less likely to get you sued than “I think Y is the killer.” You’re not asserting anything other than the fact that someone else thinks Y is the killer. Yeah it’s a little weasely, but, well, lawyers are sometimes weasely. That’s why I ended up rewriting all that voiceover ten years ago.

I can tell you that I certainly wouldn’t have counseled the producers to end with such a bold proclamation of assumed guilt. I can also tell you that if you produced a true-crime doc and came to me for legal advice, you would have a hell of a time convincing me to allow you to let the show go to air. But CBS has a lot of lawyers. Maybe they know something I don’t. Or maybe they made a stupid mistake. Time will tell. Regardless of how this works out for CBS, my advice to you is pretty simple: even if you have the evidence to prove it, don’t accuse people of being murderers on TV. Leave that to the courts.