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Could Chowhound be forced to identify critical posters?

c
charmedgirl Dec 29, 2008 06:34 AM

Food for thought (and discussion): if a hound posts a negative review, can the restaurant sue for defamation and require Chowhound to reveal the poster's identity??

http://www.baltimoresun.com/news/loca...

  1. s
    swsidejim Dec 29, 2008 06:52 AM

    I dont think an honest, but negative review of a restaurant could ever be considered defamation.

    I would like the people who have never been to a restaurant and then either recommend it or bash it on Chowhound face some sort of retribution though. :-D

    2 Replies
    1. re: swsidejim
      f
      ferret Dec 29, 2008 10:46 AM

      And lets' not ignore the restaurant owners and their shills who post their totally biased glowing reviews of their establishments to lure in business. Anonymity cuts both ways.

      1. re: ferret
        e
        Elyssa Mar 2, 2009 12:59 PM

        I agree. But I think those particular posts are painfully obvious. Especially when they have only posted on 3 or 4 threads, all having to do with the restaurant, and all with glowing reviews. Always makes me wonder how crappy their other PR endevours are hahaha.

    2. k
      KTinNYC Dec 29, 2008 06:57 AM

      I guess this is a good reason why CH doesn't allow talk about sanitary conditions or accusations of a restaurant making a poster sick.

      13 Replies
      1. re: KTinNYC
        l
        Leonardo Dec 29, 2008 10:12 AM

        I think it's totally appropriate, relevant, and useful for a poster to quote and link to a city health inspector's report. Truth is an absolute defense. If the restaurant doesn't like it they can complain to the inspector, not to CH.

        1. re: Leonardo
          k
          KTinNYC Dec 29, 2008 10:28 AM

          Posting to the cities DOH is fine but random reports from anonymous posters is forbidden and understandably so.

          1. re: KTinNYC
            Googs Dec 29, 2008 02:00 PM

            Posting a link to the city's DOH is not fine. I have received e-mails that state in no uncertain terms that it's forbidden. Strange, but true.

            1. re: Googs
              alkapal Jan 3, 2009 06:03 AM

              why? it is public information -- at least here in the u.s.

              1. re: alkapal
                Googs Jan 3, 2009 07:54 AM

                It's public information here as well. Here's what the moderators told me.

                "When the subject of Health violations is raised, the discussion tends to focus just on that point, and such discussion is generally murky and undocumented, with a lot of hearsay and potential for abuse (from competitors, disgruntled ex-employees, etc.). Even where there are actual documented cases that can be supported with links to Health Department sites, it confuses posters when those are allowed but the hearsay and reports of less well documented infractions are removed."

                1. re: Googs
                  alkapal Jan 3, 2009 02:55 PM

                  just recently, we had a little place nearby that closed. not knowing why, i believe i linked to the local inspection board site, which did not cite ant real probs. other factual (tho' rare) links, though, have stayed up without incident, afaik.

                  1. re: Googs
                    Davwud Jan 6, 2009 04:13 AM

                    So they're saying that CHer's aren't smart enough to discern between a link to a health report on a restaurant and someones linkless opinion??

                    Heck, if a place is dirty, I wanna know.

                    DT

                    1. re: Davwud
                      Googs Jan 6, 2009 05:55 AM

                      Yes, apparently the collection of lawyers, doctors, etc that are Chowhounds are easily confused.

                      I agree Davwud. I consider it a duty to report places that might harm a fellow Hound. I don't because it's disallowed.

                      1. re: Davwud
                        chowser Jan 8, 2009 10:29 AM

                        It is frustrating. Someone asked about a restaurant and wanted some place clean, as a top priority. I've seen cockroaches at one frequently recommended place but couldn't say anything.

                        1. re: chowser
                          Googs Jan 9, 2009 05:28 AM

                          I hope eventually they find a way that, while continuing to disallow hearsay, can allow links to Dept of Health sites.

                        2. re: Davwud
                          jen kalb Jan 9, 2009 06:57 AM

                          this kind of stuff can take over the site and it really has nothing to do with the food. Most restaurants get some negative items in their inspection reports from time to time. And if a restaurant is closed by the DOH, well, that speaks for itself and its no skin off any of us. My feeling is that people who are concerned about health reports can check the DOH site before going to a restuarant. I do not personally want to see it as an item of discussion here on chowhound.

                          1. re: jen kalb
                            l
                            Leonardo Jan 9, 2009 05:01 PM

                            I do want to see references on here to DOH reports if a place has a long history of bad inspections with borderline passing scores, has been on the edge of closing numerous times with 5-day "clean this up of die" notices, and has a clear pattern of being unable to master proper sanitary practices. To me, that is entirely germaine to my choice as to whether to eat there, and I would profusely thank anyone who raised a red flag.

                            1. re: jen kalb
                              Googs Jan 10, 2009 06:12 AM

                              Food handling has everything to do with the food. It also speaks to the proprietor's attitude towards their customers. I agree with Leonardo that repeat offenders should be singled out.

                              Things such as 'no handwashing supplies' is a stupid, never shoulda happened, easily fixed violation. A place near me has broken that rule repeatedly despite being inspected and informed they must supply soap (duh) and despite being directly across the street from a drug store. Yet can I say anything? No. Especially frustrating since they're supposed to be a "healthy" choice.

                              In my city you pretty much have to have rats doing the watusi on dinner tables before the city shuts them down. I'd like to know about serious violations before they form a conga line.

              2. Seth Chadwick Dec 29, 2008 07:29 PM

                The only reasons restaurants would be pursuing this course of action is for attorneys to send curt cease and desist letters threatening to file slap suits if the person doesn't pull the offending post or issue an apology.

                The federal courts have ruled again and again that restaurants and restaurant owners are immediately "public figures" and, therefore, any defamation suit has to prove actual malice. While some restaurants have successfully won lawsuits at the trial level, no judgment has withstood an appeal with the courts always siding with the critic saying that writing "their beef tasted like bleach and vomit" is protected speech unless the restaurant can prove the critic indeed had malice.

                Beyond that, however, I would be curious to know how a plaintiff could ever discover the identity of a critic on CH if that person used an online mail account like Gmail or Hotmail and used the local Kinko's, public library or Starbucks Wi-Fi to post to the site.

                5 Replies
                1. re: Seth Chadwick
                  Firegoat Dec 30, 2008 09:54 AM

                  Seems odd that people are allowed to trash restaurants and chains at will, whether they've been to them or not, but not "celebrity chefs" which are clearly more public figures and open for public comment than the mom and pop sandwich shop down the road.

                  1. re: Firegoat
                    Ruth Lafler Jan 9, 2009 12:42 PM

                    People can and do bash celebrity chefs. The site asks people not to go overboard on generating repetitive threads that are nothing but rants about personalities that have little or nothing to do with food. In the end, this site is about the food -- they're within their rights to ask that in not degenerate into anti-celebrity rants.

                  2. re: Seth Chadwick
                    Steve Green Jan 1, 2009 10:39 AM

                    "Beyond that, however, I would be curious to know how a plaintiff could ever discover the identity of a critic on CH if that person used an online mail account like Gmail or Hotmail and used the local Kinko's, public library or Starbucks Wi-Fi to post to the site."

                    And how many people do you know who regularly post that way?

                    1. re: Steve Green
                      Seth Chadwick Jan 1, 2009 09:06 PM

                      I don't know. I haven't asked. But I personally know several people who only have laptop computers and access the internet through their local free Wi-Fi whether at Starbucks or wherever.

                      If they wanted to post on CH, how could you ever confirm their true identity?

                      1. re: Seth Chadwick
                        Davwud Jan 6, 2009 04:17 AM

                        It could still be traced. Your email address, hotmail or otherwise isn't a way of doing something without anyone ever knowing. It doesn't matter that you're using free wireless. You still own the email address and it can be traced.

                        If you don't believe me. Start looking for bomb making materials or kiddie pron like you do food info and see what happens.

                        DT

                  3. m
                    mpalmer6c Dec 29, 2008 10:39 PM

                    I believe restaurants, like movies
                    and celebrities and politicians. are in the
                    "fair comment" category.

                    However, if a crank posts obsessive repeated
                    defamatory comments, a restaurant owner
                    might have a case. But would
                    a restaurant owner want to pay
                    the legal fees?

                    1. j
                      jaykayen Dec 29, 2008 11:13 PM

                      Probably only if subpoenas are issued for the CH user.

                      1. h
                        HillJ Dec 30, 2008 09:02 AM

                        think, disparage, protection against...harm
                        www laws...a whole new field of litigation that is booming
                        accountability for what you write...is now what you publish thanks to wide use of Internet under original copyright and/or trademark laws
                        professional web surfers..hired to read, read, read and protect, think Google alerts

                        The world got really small.

                        1. duckdown Jan 1, 2009 05:46 PM

                          reveal my identity?

                          chowhound doesn't know who i am

                          2 Replies
                          1. re: duckdown
                            Mawrter Jan 2, 2009 09:29 AM

                            Maybe not, but your ISP does.

                            This is an interesting legal issue, and I don't know that the matter is really determined for civil suits. If someone were making terroristic threats or using the site for RICO type activities then yeah, law enforcement will get the ISP to hand over the user & their information. So there's an established practice for felonies. But for civil matters, I'm not sure that ISPs have had to compromise their clients' identities and I'll be interested to see how that plays out or, if it has played out in the courts, which way it's going.

                            1. re: Mawrter
                              psb Mar 2, 2009 09:52 AM

                              >Maybe not, but your ISP does.
                              >
                              well, on a sort of foodish note, unlikely if you use something like TOR [The Onion Router],
                              or other similar technology.
                              it might be interesting to know how long CH keeps various records and what
                              they do with them as a matter of course.

                          2. b
                            Beach Chick Jan 2, 2009 09:52 AM

                            Just like the poster who ranted about a very well known loved restaurant in SD and stated the food was 'appalling'..he just moved into town and ate there once, had 2 app's, 2 entrees and what I found telling about this poster was that he never mentioned what he had, didn't go to manager but he was allowed to 'Hit and Run' this fine establishment by being somewhat anonymous on his posting at CH and by the time he signed off on his computer, it was already crawled by the bot and placed up on all the Search Engines..

                            1. Veggo Jan 3, 2009 04:45 PM

                              Defamation requires malice combined with untruth. Chowhound would obviously prefer not to be a named party as the conduit for a defamatory claim. The report function is a useful tool for Chowhound and it's participants. I use it immediately when I see a wacko post.

                              1. Kate is always hungry Jan 3, 2009 05:23 PM

                                A review, negative or positive, is or should be the author's opinion. If I recall correctly, defamation requires a false statement of fact, not just an unfavorable opinion. So if you are writing a review, and state that you thought the food was terrible or you didn't ilke it, that is your opinion. If you write that the food was inedible because it had ground glass or arsenic in it, and it didn't, that is a false statement of fact. As Seth posted, if the restaurant is a public figure, it has the burden of proving that the statement was false and actual malice--reckless disregard for the truth, not ill will.

                                4 Replies
                                1. re: Kate is always hungry
                                  alkapal Jan 4, 2009 03:39 AM

                                  not only is kate always hungry, but she has also correctly stated the law on this subject.

                                  1. re: alkapal
                                    d
                                    dolores Jan 6, 2009 04:17 AM

                                    Exactly. How funny that SOME restaurants can't handle the truth.

                                  2. re: Kate is always hungry
                                    chowser Jan 8, 2009 10:31 AM

                                    The problem is court action can be taken by big corporations and it can destroy a private person, financially, even if you're found not guilty in the end. It can just be about intimidation.

                                    1. re: Kate is always hungry
                                      c
                                      cimui Jan 9, 2009 07:00 AM

                                      yes, but statements of fact and opinion are often blurred and intertwined.

                                      does the restaurant owner have to make any prelim showing that the statement was a false statement of fact BEFORE getting the website to divulge the poster's name or after? that sounds to me like the issue the MD court is deciding.

                                      if the website has to divulge first, then i think chowser's right that it could have a real cooling effect on free, anonymous speech on websites, since the very threat of expensive litigation will shut people up -- even if they're in the right.

                                    2. c
                                      cimui Jan 3, 2009 07:28 PM

                                      sure. anyone can bring suit for (just about) anything. i haven't read the maryland filings and i don't know all that much about defamation law (i've never been defamed; my critics are generally pretty spot on), but i suspect that it's more about the issue of timing than anything else: can the business owner get the publication to divulge the name of an anonymous poster even prior to having to make a showing on any of the actual elements of defamation (including that of having suffered actual harm).

                                      even if the court rules 'yes', keep in mind that it's still the plaintiff's burden to show that it suffered actual harm in some way as a result of the supposed defamation, after learning a poster's identity. that's a pretty freakin' hard -- and expensive -- showing to make. even if a restaurant owner is bored / rich / pissed off / irrational enough to bring suit alleging that a random internet poster caused a specific harm to the restaurant, they're pretty unlikely to survive a motion for summary judgment.

                                      so, as much as we hounds like to think we have that much influence on the masses (enough that a bad review causes actual, documentable harm to a restaurant), i suspect that we do not. and it's pretty unlikely that a business owner would sue any individual chowhound, and if they did, that the owner would win.

                                      keep criticizing away, hounds. =)

                                      1. h
                                        HillJ Jan 3, 2009 08:17 PM

                                        Since recommendations/reviews appearing on CH are collective, the "voice" of discontent (& often rebuttal) is fairly light compared to say a blogger on a personal crusade to slam a restaurant or eatery for whatever reason they believed justified.

                                        Identifying one poster in a community of a thousand (or more) voices is hard to call slander.

                                        1. c
                                          charmedgirl Feb 28, 2009 07:24 AM

                                          The court rules: http://www.baltimoresun.com/news/loca...

                                          1 Reply
                                          1. re: charmedgirl
                                            billieboy Feb 28, 2009 08:34 AM

                                            I hereby withdraw all statements I made about Wretched Wray. :-)

                                          2. n
                                            newhavener07 Mar 2, 2009 10:25 AM

                                            I think CH doesn't give its readers enough credit for sorting out the crank posts. I look at both glowing raves and nasty slams with a very skeptical eye--it's rare that a restaurant exceptionally wonderful escapes the general community's notice and that an exceptionally bad place stays in business. As for health inspections--I live in a state where the restaurant industry has basically shut down reporting of health inspections and food poisoning incidents. Some enterprising reporter out there should dig into it here in CT, but in general CH should not be acting on the industry's behalf to protect dirty places, in my opinion.

                                            6 Replies
                                            1. re: newhavener07
                                              Caitlin McGrath Mar 2, 2009 01:01 PM

                                              Chowhound is "acting on the industry's behalf to protect dirty places"? Do you really think Chowhound's policies regarding not posting about food poisoning and health inspections are in place "on the industry's behalf" and not on the site's behalf? I've been using CH for 10 years, and this policy has not changed in that time so far as I can tell, from when it was an itty bitty site with a few hundred posts a week - anything but part of a corporate media behemoth and protector of industry.

                                              1. re: Caitlin McGrath
                                                n
                                                newhavener07 Mar 3, 2009 12:19 PM

                                                How is it on the site's behalf, or user's behalf, to junk any post on food poisoning? I'd like to know if someone I trust from their CH posts has gotten sick somewhere. This is the industry's dirty secret and it doesn't serve anyone to suppress posts about it from reputable posters.

                                                1. re: newhavener07
                                                  Caitlin McGrath Mar 3, 2009 12:23 PM

                                                  I assume the site is protecting itself legally, from allegations of defamation by posters. That's the site acting on its own behalf.

                                              2. re: newhavener07
                                                r
                                                rbailin Mar 2, 2009 08:00 PM

                                                It's been done. The Danbury News-Times regularly reports on the results of the city's local health inspectors (like a police blotter), and the Hartford Courant has a "Restaurant Health Inspections Database" link at the bottom of its main webpage.

                                                1. re: rbailin
                                                  n
                                                  newhavener07 Mar 3, 2009 12:15 PM

                                                  Routine health inspections are not what I'm talking about--I'm talking about reporting on food poisoning and mass food illness incidents in the state. We had one in New Haven a few years ago (I know someone affected) and by state law, the restaurant couldn't be named in any followup public records by the state. That's the industry-sponsored law--look it up.

                                                2. re: newhavener07
                                                  Jacquilynne Mar 3, 2009 01:09 PM

                                                  How we deal with reports of food poisoning and health code violations is a challenging issue, with many facets to it. We provide a loud microphone here for people to comment on a restaurant that provides a livelihood to many other people, and with that comes an imperative that we do our best to make sure that the discussion remains honest and in good faith. That means more than just protecting the community from shills and self-promoters. It works both ways -- both positive and negative posts about restaurants can be false or exaggerated. The higher the stakes are around a given subject, the higher the imperative that the information be clear and verifiable.

                                                  Unlike chowish, food-focused discussions where most people will balance the positive and negative posts to get a picture of whether they will like a place, and consider that sometimes restaurants have an off night, a single accusation of food poisoning is, for many people, all it takes to keep them out of a restaurant.

                                                  Medical authorities inform us that it's extremely difficult, given the differing gestation times of different agents and organisms, to determine when/where a bad stomach originated. What's more, even if one could pinpoint the origin, it'd be even more difficult to make a determination as to whether the sanitary issues at that place are ongoing or were a strictly one-time problem.

                                                  But even knowing that the accusations that did appear on our site were 100% true wouldn't necessarily be enough. By having a blanket prohibition on reports of food poisoning, we also avoid perpetuating the idea that we're a good source of information on those subjects. If we allowed some reports, but disallowed other more nebulous ones, people would get the impression that we were the right place to look for that type of information -- but our picture would invariably be highly incomplete. We can't provide an accurate, complete, timely picture of sanitation, and to avoid giving false negative impressions about a place or a false feeling of safety due to a lack of reports, we think it's better to take the issue off the table altogether, and ask that people instead source their information from the local Health Department, which can (or should). Offering a definitely incomplete, sometimes inaccurate, and generally out-of-date perspective on the issue is more damaging to both restaurants and diners than offering none at all.

                                                  -- Jacquilynne, Community Manager for Chowhound

                                                3. h
                                                  Harters Mar 4, 2009 02:00 PM

                                                  "if a hound posts a negative review, can the restaurant sue for defamation and require Chowhound to reveal the poster's identity??"

                                                  A potentially interesting sub-question for those of us who live in the international boards.......would such a restaurant sue in their own country, under whatever their own defamation laws might be or sue in America under whatever defamation laws you have there?

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