Thursday, January 7, 2016

Florida Court: False Online Review Of Lawyer = Libel

A Florida lawyer got some big damages in a libel case, and yesterday the Fourth District Court of Appeal upheld them, with a great opinion.

The case is Copia Blake and Peter Birzon v.Ann-Marie Giustibelli, P.A., and Ann-Marie Giustibelli,individually.

The lawyer sued for damages due to false online reviews. After briefs were filed, one of the appellants filed a notice withdrawing the appeal. The other did not. The court began their opinion by stating that "even if she had, we would not have dismissed the appeal."

Usually not a good sign for the appellant.

The court noted that "one issue Blake and Birzon raised involves the application of free speech protections to reviews of professional services posted on the internet."

We lawyers call those "Yelp" or "Avvo" reviews.

The court understands this is an issue in the legal profession:

"We affirm in all respects, but this issue merits discussion as it presents a scenario that will likely recur, and the public will benefit from an opinion on the matter."

The facts?

Giustibelli represented Blake in a divorce case against Birzon. Things deteriorated between Giustibelli and Blake, so Blake (and as the court noted "oddly, Birzon as well,") posted defamatory reviews of Giustibelli.

Giustibelli sued for libel, as well as breach of contract.

Some of the offending statements:

"She misrepresented her fees with regards to the contract I initially signed. The contract she submitted to the courts for her fees were 4 times her original quote and pages of the original had been exchanged to support her claims..."

"No integrity. Will say one thing and do another. Her fees outweigh the truth."

"Altered her charges to 4 times the original quote with no explanation."

The client and her husband admitted they posted the reviews and "both admitted at trial that Giustibelli had not charged Blake four times more than what was quoted in the agreement.

Result: Giustibelli won, and got $350,000 in punitive damages.

Blake and Birzon claim "that their internet reviews constituted statements of opinion and thus were protected by the First Amendment and not actionable as defamation."

The court held that:

"...all the reviews contained allegations that Giustibelli lied to Blake regarding the attorney’s fee. Two of the reviews contained the allegation that Giustibelli falsified a contract. These are factual allegations, and the evidence showed they were false."

The court also noted that the argument "that libel per se no longer exists" due to the Gertz case in the United States Supreme Court, doesn't apply as after Gertz, "the Florida Supreme Court recognized that, with respect to a libel action against the media, it is no longer accurate to say that ‘“[w]ords amounting to a libel per se necessarily import damage and malice in legal contemplation, so these elements need not be pleaded or proved, as they are conclusively presumed as a matter of law.’”

What the court noted about this argument was that the lawyer here, is not a media defendant, so libel per se still applies.

Obviously this case applies to Florida Lawyers (and any other state that has the same laws on libel). There were reviews that were verified, and verified to be false. Most of the time you have anonymous reviews that are nothing more than protected opinion and all you can do is cry about it.

Congratulations to Giustibelli. Those were some expensive false online reviews.

 Located in Miami, Florida, Brian Tannebaum practices Bar Admission and Discipline and Criminal Defense. He is the author of The Practice.


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