Online Business Reputation and Defamation Cases: Part 3 The Defamation Cause of Action: Trial Level

HNWBusiness Law, Partnership Rights Litigation, Shareholder Rights Litigation

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Business Litigation Attorney

Previously in this series I discussed the dissolution of a relationship between a business and its landlord as well as potential evidence in the form of negative reviews on the website Yelp. In Part 2, I discussed the importance of available e-discovery methods and what is known as “pretrial discovery on defendant’s financial condition.” In Part 3, I will dive deeper into the trial portion of the case and the effects of the evidence presented.

Before we conclude our final review of a complex business tort lawsuit, it will be helpful to discuss the four general elements that must be proven in nearly all states to successfully establish a defamation of character claim.  The exact elements may vary slightly from state to state, but generally they all have something that looks like the following. A business owner is defamed by someone who they believed caused the defamation.  Then: (1) The defendant made a false and defamatory statement concerning the plaintiff.  (2) The defendant made an unprivileged publication to a third party. (3) The publisher acted negligently – at the very least – in publishing the communication; and (4) a showing of damages.  In this case, if the plaintiffs were able to prove that the defendant was behind the Yelp accounts and the postings made by those accounts, then they would prevail on the defamation claim.

Referring to the prior posts, the pretrial judge approved the discovery motion, which in simple terms, meant that the Yelp postings were fair game at the trial to be argued for and against the plaintiffs and/or the defendants.  Naturally, in a trial like this, where there is evidence that is problematic for one side – in this case, the defendant – a party will make a motion in limine to exclude this damaging evidence.  Here, the defendant moved in limine to exclude the Yelp evidence, which, of course, as we all know, is the crux of the plaintiff’s defamation claim.

The defense argued that the Yelp posts should not be included as evidence because they were unauthenticated.  Essentially, unauthenticated means that there was no way to know for sure that the Yelp postings were created by the landlord even though the IP addresses indicated the responses originated from both of the landlord’s business and home addresses.  Someone could have driven by either of these addresses, logged into the network and posted the reviews.  One of the landlord’s dozen employees could have posted the review.  But, say for example, if the network required a password and the defendant was the only one who was present at both addresses with the password, then there would be a very clear cut evidence that the court would likely rely upon to rule in favor of the plaintiffs.  But here, like most cases, the facts and legal conclusions that can draw from them are not so clear cut.

The trial court required the plaintiffs to present expert testimony to supplement the circumstantial evidence they were relying on.  Basically the court was saying, “O.K. we see there is a coincidence here, but how can we say there was a great likelihood that it was the defendant who posted these?  The circumstantial evidence alone about the time frame, the locations, and related stuff just was not enough without proper expert testimony.

After the expert testimony was presented, the trial court ultimately took issue with the Yelp evidence and excluded it.  The court reasoned that the internet records actually did not tie the IP addresses to the dates when the postings were created.  The IP addresses were consistent with the defendant’s addresses but, for some reason, the almost 30 days after the postings were made.  With that being said, the court excluded the internet host records and the two posts associated with that provider, while the court allowed the Yelp evidence connected with AT&T to be admitted.

Ultimately, the court granted the defendant’s motion for a directed verdict on the defamation cause of action (basically, an expedited, quick way of dismissing a plaintiff’s claim).

What is the importance of all of this?  Well, for starters, trials are really confusing and there are plenty of complicated legal terms that exist which require explanation.  But once you understand them, it’s really not all that difficult.  Another thing to remember is that some evidence admitted is better than no evidence admitted.  Finally, it is important to understand that all of this discussion occurred at the trial level.  A great team of attorneys can appeal the trial court’s rulings, just like we saw in Part 1 of these posts.  The plaintiff’s counsel appealed the trial court’s ruling.  And as it turns out, the Court of Appeals discovered that the trial court did indeed rule in error!

To discuss your NJ Business Litigation matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at  Please ask us about our video conferencing consultations if you are unable to come to our office.

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