A Dallas jury just awarded Andrea Polito, a wedding photographer, $1.08 million in damages against a couple who took their complaints about her to social media and local news. This lawsuit showcases how, after more than a decade of blogs and social networks, courts (and people) still have no idea how to deal with the social media groundswell.
When Charlene Li and I published Groundswell: Winning in a World Transformed by Social Technologies in 2008, we defined the groundswell this way:
A social trend in which people use technologies to get the things they need from each other, rather than from from traditional institutions like corporations.
The groundswell was going to be a human-focused movement, shifting power from companies and governments to customer and citizens. It worked. Would you book a hotel or hire a contractor without reading reviews? We, the people of the groundswell, have collectively taken charge of evaluating suppliers and rating their efforts.
In the groundswell, truth was supposed to emerge from the crowd. If everybody says the restaurant has slow service, it probably does. If everybody likes the new Star Wars movie, it’s probably pretty good.
But now that people know how to game the system, the truth is in danger. Robert Mueller is investigating how a network of Russia-back trolls created fake news stories and promoted them on Twitter and Facebook. The groundswell, fueled by mobile users on Facebook and Twitter, creates viral sensations based on what’s sexy, not what’s true.
The Dallas wedding photography kerfuffle and subsequent lawsuit
The case in Dallas is more complex than it appears. Here are the facts:
- Neely and Andrew Moldovan hired Andrea Polito Photography to photograph their wedding in October of 2014 for over $6,000.
- Upset by Polito’s request to spend an additional $150 for a cover for their wedding album, the Moldovans decided to take their complaints to media. Neely Moldovan is a blogger and social media expert.
- The Moldovans got Dallas NBC channel 5 to air a local news story in January 2015 critical of Andrea Polito’s photography business.
- Polito’s business received many negative reviews, including one that said she had given the reviewer AIDS. Polito alleges that Neely Moldovan clicked “like” on several of these fake and defamatory reviews.
- Polito claims that as a result of the bad reviews, her wedding photography business tanked.
- Polito sued for defamation and, almost three years after the original wedding, won the million-dollar judgment.
The groundswell was going to empower individuals who banded together to take on big institutions. But there are no big institutions here. There is a small business with limited resources and a couple who has problems with that business. The Moldovans proved more adept at social and traditional media. Andrea Polito prevailed in court. Let’s look at it from both sides.
The view from Neely and Andrew Moldovan
The local news story makes the Moldovans’ view point very clear — they were dissatisfied and wanted to get satisfaction rather than keeping paying extra charges to get their photos.
Anyone who’s ever hired a contractor can sympathize. There’s nothing worse than hiring somebody and getting nickel-and-dimed after the fact. In this case, the Moldovans claim they were “held hostage” by Polito, who wouldn’t release the high-definition photos until she got paid extra.
This is supposed to be where little guys can turn to social media. The Moldovans have a right to post a bad review if they are unsatisfied. They went further by emailing several local news outlets, and succeeded in getting NBC DFW (Dallas Channel 5) interested. If you believe in the power of social media, this looks like a great example of people using the power of the groundswell to get what they feel they are owed.
The view from Andrea Polito
Polito posted her viewpoint on her site. Here’s an excerpt:
The story you are not hearing is that it was only last week when the bride claimed to realize that, per our contract, welcome packet, and emails, she would not get her wedding images until her album was completed. This conflicts with the numerous emails in which we clearly reiterated what is stated in the contract: low-resolution watermarked proofs are sent to the couple several weeks after the wedding for them to choose their desired photos, while the non-watermarked, high-resolution images are released upon completion of the album. . . . To suggest that we would hold images “hostage” in retaliation is simply inaccurate. Our intention has never been to “hold hostage” a couple’s images. We have always been upfront and honest.
And in her petition to the court, she cites the actions by the Moldovans that she claims are defamatory:
The Moldovans proceeded to republish the story in different electronic forums, such as blogs, Google, Facebook, Instagram, Twitter, NBC, text messages, and emails, and to make disparaging and defamatory statements in those same forums with the direct intent to harm Plaintiffs. Those statements include the following: . . .
Polito “cheated,” “scammed,” and “blatantly stole money while holding pictures ransom and then adding on extra fees that weren’t in [the] original contract,” which charges Polito with the crimes of fraud and theft, and suggests Polito is dishonest both personally and professionally (Wedding Wire review from “Andrew” with October 11, 2014 wedding date). Polito did not cheat or scam the Moldovans, and never held pictures for ransom.
Neely was “pretty sure [Polito’s] business is done” (Neely’s Facebook conversation with Emily Schultz between January 15 and January 17; Neely Facebook comment to her NBC article post, January 16 . . . Andrew published statemetns to his friends, evidencing his intent and/or knowledge of the harm his and Neely’s actions would cause Plaintiffs. . . .When asked if Polito knows what Neely does for a living, Neely replied “oh she knows” . . ., posted in another forum “I’m a blogger and I’m going to be all over this once it’s resolved” . . . , and told a third party that she had and/or wanted to acquire “so much ammunition to screw [Plaintiffs] over” and that she and Andrew “are hoping that[their] story makes the news and completely ruins [Polito’s] business.”
The Moldovans also “liked” numerous other defamatory per se statements posted by third parties, thereby ratifying and republishing those libelous statements. These numerous statements endorsed by the Modovans are nasty and reprehensible, including those that refer to Polito as a “scam artist,” that imply a death threat, and that accuse Polito of “g[iving] [the reviewer] AIDS.” In several instances, Neely more than “liked” the posts, she also commented on them, acknowledging that she agreed with them and/or found them humorous.
So as Polito describes it, she conducted her business in a traditional way and communicated with her clients, and they, instead of working things out with her, released a defamatory blast all over social and local media. They destroyed her business with lies, and she eventually got restitution for that in the courts.
I worry about what this affair means for all of us
I’ve seen posts defending both sides in this event. They all worry me.
I post negative reviews all the time. Thousands of people have viewed my review of the truly disgusting Best Western Premier hotel in Qingdao, China and I cherish the idea that it has saved them from an awful experience. I don’t want people telling me what I can say online.
I’m especially troubled by the idea that if you click “like” on something, that’s evidence of defamatory intent. Do we really want to be able to sue people for what they like online? This goes too far.
That said, I support the idea that if you lie online, there are consequences. Clearly, many individuals saw the NBC 5 report, sought out Andrea Polito’s online presence or Yelp page, and created fake, negative reviews to shame her. The Moldovans crossed the line in their posts, and there are consequences for that. If you are willing to say anything to destroy another person’s business, regardless of the truth of falsity of your statements, then you run risks. In this case, the risks resulted in a million-dollar judgment against the Moldovans.
I’m truly interested in your perspectives on this case. Where are we to draw the line? How would you feel if you got sued for an online review? For clicking “like” in a news report that turned out to be false? If the business suing you was a big one — say McDonald’s suing you for saying their french fries are unhealthy — would that make any difference? Because the big companies have a lot more legal resources than Andrea Polito’s photography business.
On the other hand, what is the right way to defend yourself against a social media smear campaign? If it was your business being sued or your character under assault, what would you do to fight back? Would you consider filing suit? If so, what do you feel you’d have to prove to prevail?