Podcast 032: The Poison Keyboard

In This Episode: A really interesting cautionary tale for anyone who posts anything online — on social media, on a review site, even a comment on a blog. Can you be sued …and LOSE? You bet! Even if you “don’t listen to podcasts” you might want to try this one — or at least read the transcript.

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Kitty Chan and her husband, Kevin.

Show Notes

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Welcome to Uncommon Sense, the Podcast companion to the ThisIsTrue.com newsletter with the mission to promote more thinking in the world. I’m Randy Cassingham.

A slightly different episode this week: I won’t be talking about a story from the newsletter, but today’s topic definitely shows the value of thinking over reacting — and is a cautionary tale for anyone who uses social media, such as Facebook, or certainly your own web site or blog if you have one.

And don’t think this only applies to Americans, either. This story is actually out of Canada, and the case law behind it probably applies to any British Commonwealth country, and as far as I can tell the same legal doctrines would definitely apply in the United States. So while I’m not a lawyer, and you should get your legal advice from one who specializes in this area, you need to know all of this does apply to you if you post anything online.

On first glance, this looks like a “Stella Awards” type of case: a crazy case of a business filing a lawsuit against someone who posted an online review. It’s definitely not anything like that, as you’ll see. And I ought to know: I’m the one who wrote the True Stella Awards book about crazy lawsuits!

This tale involves a woman from Richmond, British Columbia, part of the Vancouver Canada metro region, by the name of Emily Liao. Her good news is, she recently married. Like most brides, she hired a professional to plan her big day. Liao, who is Chinese, chose Amara Wedding, owned by Kitty Chan. The company specialized in weddings for the close-knit Vancouver area Chinese community.

Amara Wedding was a well established wedding business with very favorable reviews on Yelp, Google, Facebook, and a wedding planner review site called Wedding-Wire. In 2015, Liao contracted with Chan’s company to provide the photographs, the flowers and decorations, the hair and make-up artists, even the tuxedo rental, all for a little over 6,000 Canadian dollars, or around 4,700 U.S. dollars, which sounds like a really good price to me. Liao paid the required $3,500 deposit, and wrote a post-dated check for the $2,500-and-change balance, which was due before the wedding took place.

However, a week before the wedding, Liao stopped payment on that second check. Amara Wedding found out, but still put on the affair, though Chan refused to hand over the photographs until the balance of the contract was paid in full. It was, after all, the only leverage she had once the wedding was over. Liao said she expected Chan to be the photographer. That wasn’t part of the contract, Chan explained, and had that been requested, it would have cost extra that was not included in the contract. Chan had assigned one of her on-call professional wedding photographers instead, a woman who had a college degree in photography, and — at that time — six years of professional experience after that.

But once Liao saw the photos, you may not be surprised to hear, she was dissatisfied. Chan said not to worry, they were just proofs, and they’d look great once they were processed and retouched. Liao not only still didn’t pay, but she sued Chan in small claims court, charging breach of contract.

And here’s where it really goes off the rails. Liao vented on social media to say she had not only been mistreated, but that Chan and Amara Wedding was criminal in their business dealings with her. She didn’t just vent, she made posting after posting on both Chinese language and English language sites, including Facebook, Blogger, and Twitter, as well as the Chinese language sites Weibo, Sina, and WeChat, and a local Chinese site in the Vancouver area called VanPeople. In those posts, Liao made a lot of charges against Amara Wedding, such as:

  • the company was a “major scam shop” and “deceitful photography mill” business
  • they engaged in “extortion, dishonesty, unfair practices, bait and switch and other dirty tactics”
  • the company “lies to its customers” who it “tricks and coerces” to enter into contracts which it “breaches and attempts to falsify”
  • they “treated me as a lab rat for experiments for their amateur photographers”
  • Amara provided “raw unfinished photographs” under the guise of the finished product that were “inferior quality that are unprofessional and worse than cell phone quality”
  • she said the company assigned “an inexperienced, novice photographer” to her wedding
  • she claimed Amara “scams photography students into providing free labour under the guise of an apprenticeship”
  • and she charged Chan had “destroyed evidence, used a secret, fictional identity” and had threatened her.

All of those are pretty serious charges — and just the sort of things that angry people say once they’ve worked themselves up into a lather. I’ll bet you’ve seen such posts and comments yourself. Maybe you’ve even made such posts and comments yourself.

I hope not, because there’s a huge danger in that kind of reacting, rather than thinking. Especially if what happened with Liao’s posts happens: they went viral. That means they were shared again and again, and even copied to other sites. The more those posts were shared, the more that Chan’s business, Amara Wedding, was hurt.

“In the Chinese community,” Chan says, “a lot of businesses rely on word of mouth. So when they found out we were a so-called ‘scam shop’, all the readers were shocked too.” Because, as the judge learned from testimony, “scam” in Chinese means the same as fraud. And there were a lot of readers of these posts, which were shared again and again on site after site: as word spread, Chan’s business dwindled more and more.

But then the tide turned a little: the small claims lawsuit that Liao had filed was not only dismissed in its entirety, but Chan’s counterclaim against Liao for the balance of the contract price for services rendered was granted in its entirety.

Perhaps seeing the damage she had done, plus having a judge not only dismiss her claim, but make her pay Chan according to the contract, and seeing she was wrong about a lot of her charges against the company, Liao apologized to Chan, and offered to let Chan review that apology before she posted it to try to stop the damage caused by her earlier posts.

The apology was amazing in its admission of culpability. Here’s just a portion of what Liao wrote:

“We sincerely hope that we can have a chance to meet with you, and apologize to you in person. We know that words cannot compensate for the harm we did to you and your company with what we said. When we are wrong, we admit it. I will not try to evade my responsibility. I earnestly hope that you can accept my apologies. I’ll do my best to compensate you and your company.”

Though, the judge later noted, the use of “we” was disingenuous: her husband had nothing to do with her posts, and in fact had told her she should let her anger go. He held her solely responsible for what happened. More on that shortly.

Liao later sent even more apologies, this time dropping the “we” business. She said:

“I was ignorant and I wrongly believed that what I thought and did was right. At first, I just wanted to get married happily. I know that whatever I say now and whatever apology I make cannot compensate for your loss. When the litigation was over, I have been reflecting on myself every day to understand how disgusting and suspicious I was over the past year.”

Boy does that sound familiar to those of us who have been the target of unwarranted online attacks: “I believed that what I thought and did was right,” yet they can’t quite see through their anger to admit that to themselves, let alone the people they’ve hurt — at least until someone like a judge points out that their conduct was outrageous, and subject to, as the judge put it, “deserving of censure.”

But even that groveling apology wasn’t enough: Chan’s business was completely destroyed; by January 2017, it had failed completely, and her employees were thrown out of work.

And then Chan filed her own lawsuit: the outrageous, angry claims that Liao published on the Internet were defamatory, her lawsuit said. The case started in a lower court, and was then heard by B.C. Supreme Court Judge Gary Weatherill, and his published decision, handed down last week, is fascinating reading. I have a copy of that decision, and I’ll include a link to it on the Show Page; it’s where I got most of the discussion here, quoting directly from what he wrote.

Now, I don’t know if this is common in Canadian courts, but I’ve never seen anything like this in American lawsuit decisions. The 26-page decision starts with an Introduction, and the very first line in that introduction by the judge reads, “This case is an example of the dangers of using the internet to publish information without proper regard for its accuracy.”

That’s why I think you really need to hear about this case, and there’s a very important word in that simple sentence that you need to really hear: “publish”. It doesn’t matter if you own the site where you post something — Facebook or Twitter or Blogger is certainly sufficient. When you make a post there or anywhere else online, you are in a very real sense — and certainly in a legal sense — publishing information. When you do that, you have the rights and the responsibilities of a publisher.

And one of the responsibilities of a publisher is, what you publish must not be defamatory to others. For example, if you accuse a person or business of being “a major scam shop, deceitful, engaged in extortion, dishonest, unfair in practice, uses bait and switch and other dirty tactics, lies to customers, tricks and coerces customers to enter into contracts which it then breaches and falsifies, destroys evidence, uses secret and fictional identities, and threatens people,” and you can’t back that up with objective facts, you could be, and probably should be, sued.

Of course, anyone can sue for anything: winning is another matter. But Judge Weatherill found in favor of Kitty Chan in her lawsuit against Liao, and awarded Chan damages to compensate her for her ruined business, which she had been building since about 2004.

It was interesting to read the judge’s decision, since the variety of posts Liao made were collectively referred to in that decision as “the Publications” — there’s that word again. Here’s a part of the decision I found particularly interesting. The judge refers to Liao as “Emily” and wrote this long paragraph:

Emily denied that, when she posted the Publications, she had any intention of harming the plaintiff’s reputation or business. She maintained that she was simply expressing her own feelings, opinions and criticisms by not recommending the plaintiff’s business and advising people to be cautious. Yet she published in her Blogger post: ‘Stay away from this photography mill…do not sign a contract with this woman’ and included the following specific labels in her Blogger post: ‘Amara Wedding, bait and switch scam, photography, photography mills, pre-wedding’ …with the obvious purpose of attracting ‘Google’ searches to her publication. She attempted to justify these labels on the basis that they were simply her ‘personal characterization of the blog’.

It sure is nice to see that some judges do understand how the Internet works: using keywords and tags, for example, to attract hits on Google searches, which might not only be used by businesses with a profit motive, but they can also be used maliciously. While Liao “maintained that she was simply expressing her own feelings, opinions and criticisms by not recommending the plaintiff’s business and advising people to be cautious,” the judge said, “I do not believe Emily’s explanations for why she used the defamatory words she did in the Publications and reject as not credible her evidence as to her motivations for the Publications.”

He ruled that “none of the defamatory statements published by Emily about the plaintiff were true,” and that her comments were not “fair comment” — as might be used for a review, which might be considered a defense to defamation. But even if they were “fair comment,” he ruled, “I would nevertheless have found that the defence was defeated by malice.”

Further, he said, “Rather than waiting for a resolution of the dispute through the court process that Emily herself had initiated, armed with only her own perception that she had been wronged, she set upon a determined campaign to discredit and harm the plaintiff’s business by broadcasting her dissatisfaction over the internet, in English and Chinese, in what can only be described as an egregious, accusatory and vitriolic manner, without regard for whether or not her self-righteous position was correct in fact or in law.” and, therefore, “Emily’s conduct is deserving of censure.”

Oh boy, here we go! The part that most news publications jump straight to without explaining how the judge got there. Judge Wetherill ruled that the publications “had a devastating effect on the plaintiff’s business,” and in fact caused it to fail. For that, he awarded general damages in the amount of $75,000, which in U.S. dollars is a little more than 58,000.

But he wasn’t done. The judge explained that “Aggravated damages may be awarded in circumstances where the defendant’s conduct has been particularly high-handed or oppressive, thereby increasing the plaintiff’s humiliation and anxiety arising from the defamatory statement. They are compensatory in nature and take into account the additional harm caused by the defendant’s outrageous and malicious conduct.” Such damages, he continued, could be reduced if, for instance, there was a retraction of the published statements, an apology, etc. But, he ruled, “Although Emily ultimately published an apology and retracted at least some of the Publications, it took two demand letters from plaintiff’s counsel and a decision against her made by a Provincial Court Judge until she was prepared to do so.” Therefore, he awarded an additional amount for aggravated damages in the amount of $15,000.

But he still wasn’t done. “Unlike general and aggravated damages which are intended to compensate the plaintiff,” the judge explained, “punitive damages are intended to punish the defendant for conduct that is so malicious, oppressive and high-handed that it offends the court’s sense of decency, and where the combined award of general and aggravated damages would be insufficient to achieve the goal of deterrence; they are in the nature of a fine meant to deter the defendant and others from acting in such a manner.”

To apply that theory to the instant case, Judge Wetherill ruled, and it’s really important that you understand this point, because it’s the crux of the judge’s decision: he ruled that “In my view, Emily’s persistent malice towards the plaintiff throughout and the manner in which she attacked the plaintiff via the internet justifies an award of punitive damages in this case. Emily, and others who think it is acceptable to use the internet as a vehicle to vent their frustrations, must be given the message that there will be consequences if their publications are defamatory.” Thus, in addition to the other damages, he added punitive damages in the amount $25,000.

That’s a total of 115,000 Canadian dollars, or more than 89,000 U.S. dollars. And frankly, I think Liao got off fairly easy considering that she destroyed a profitable business with her outrageous lies and conduct. Chan welcomed the ruling, but didn’t exactly celebrate.

“What I have lost has already gone,” she said after the ruling, “so I don’t think anything can compensate that. I want to prove to people that they have to face any consequences when they say something on the Internet. … I have never thought this will happen to me.”

Everyone who posts things online ragging on other people or companies should take note of this case. There’s a difference between an honest review expressing your experience and your opinion, and posting outrageously trumped-up charges to try to justify your own anger and displeasure.

Yet despite Liao’s admission in writing that “I was ignorant and I wrongly believed that what I thought and did was right,” and “I have been reflecting on myself every day to understand how disgusting and suspicious I was over the past year,” I want to read to you the full content of a review of Amara Wedding on Yelp — the company’s page still exists there even though the business was shut down more than a year ago. It was posted today, March 2nd, by “Danny L” in North Carolina, which isn’t anywhere near Richmond, B.C., Canada, so it’s pretty obvious he wasn’t an actual customer. He says:

Just read an article about this business suing a reviewer. Thats terrible! I’m glad they are closed. They don’t deserve another penny. Dishonest, bait and switch, lousy people. I’m in America. Come sue me for my opinions. This is why Canada sucks.

Getting past the ugly American obliviocy of that so-called review, it just goes to show how little people learn from the mistakes of others, even when they “read an article” about a case. That’s why I really wanted to spell all of this out in detail. When you post on the Internet, you are a publisher. And as Judge Weatherill said, people “who think it is acceptable to use the internet as a vehicle to vent their frustrations, must be given the message that there will be consequences if their publications are defamatory.”

I can only hope that judges this side of the border are as wise and deliberate as Judge Weatherill of B.C.’s Supreme Court. So remember: when it comes to publishing something online, think first, and react later, if at all. If you have a beef about a company, sure: post a review outlining what really happened, and express your opinions about that. But if you charge crimes or torts, you better be able to back them up.

That’s it for this week. If you have a story to tell about being defamed online, or otherwise wish to comment, drop a note on the Show Page at thisistrue.com/podcast32 — and don’t worry, I won’t sue you over your comment.

I’m Randy Cassingham…

And I’ll talk at you later.

5 thoughts on “Podcast 032: The Poison Keyboard

  1. Another excellent podcast illustrating an important life lesson! Namely, people need to be sensitized to the difference between opinion and fact, both from a legal perspective and a moral decency point of view. When posting (publishing) reviews online or via any other medium, it is important to THINK rationally about the information being presented and be prepared to back up any accusations with hard evidence. Otherwise, suffer the consequences for treating others so unfairly. Based on what I’ve read about this particular case, I think the B.C. judge’s decision was spot on.

    I’ve seen many scathing reviews posted online that seem to defame small businesses and others with little, if any, factual information. Some are obviously the vitriol of frustrated people venting while others, I suspect, are written by competitors with malicious intent to undermine the competition. Punitive damages are certainly appropriate in that situation.

    To be considered “fair” a critical review must state exactly what happened (facts, not feelings) and what, if anything, was done in an attempt to resolve the issue. Although one should always view such comments through a lens of skepticism, too many folks simply accept these claims at face value. Think about it! Just because someone spent time to write a review (or multiple reviews), their viewpoints are necessarily accurate or true and in many cases they likely do not tell the whole story. As with all good journalism, online reviews should address the “5 Ws” in a factual manner and encourage readers to form their own opinions based on the facts surrounding an issue. Like any journalist who seeks the truth, the wise reader is prudent in considering all the “facts” presented, separating opinion from evidence, and putting forth some fact-checking efforts in an attempt to validate what has been written. Sadly, it is a lack of reader education and scrutiny that allows “fake news” to permeate the Internet. Effective communication is a two-way street. Both the sender and receiver bear responsibility for cutting through false or unsubstantiated information to ascertain the facts and get closer to a valid conclusion based on reality. That’s a scientific approach and it’s what effective journalists, judges, and juries always aspire to do.

    It’s always good to see a court of law holding mean-spirited individuals accountable for their actions when those actions harm another person or business. Indeed, liars must be scrutinized and punished appropriately when their lies hurt others. Too bad that there’s a propensity in our society to *elect* them instead. 😉

    As I was reading this, I was reminded about a TRUE reader who tried to get me to diss an advertiser, based on innuendo and a “negative review” that was hugely trumped up. It’s also in my blog and makes some pretty amusing reading. Which is needed to help counteract the sobering truth of your last two sentences…. -rc

  2. I used to teach network management at what is now Saskatchewan Polytechnic. Part of the course was about the do & don’t activities on social media. Grads & work study students have used my rules: 1st if you don’t want to put your name & company logo on the post, don’t make the post. 2nd you can’t completely hide your trail if someone is interested enough. 3rd at least run it past your legal department.

  3. I think the former owner of the photography business should go further. She should take her award and finance a suit against the top sharers of the lies. That’s right. When you take a post with malicious intent and share it you are just as responsible for the harm.

    I have always tried to be fair as I can in my online posts and I think that is the responsibility that comes with the power of that ability to quickly share information to many people. If people who do nothing more than click share find themselves financially responsible for the wreckage they are a part of they might learn to be more responsible in not sharing everything that comes across their feed without regard for the truth of it.

    Now, I am not saying you can’t use Social Media to just rant. I have done this as well. But the difference there is when I “rant”, I don’t name names. I let people know this is my feelings and not facts. Some friends typically reply with “There, There now.” and I move on. I have found in the last few years, I typically type up my rants and never feel the need to actually publish them. I tell them off, question their parentage, exercise my aptitude for the profane and then just click delete. It’s just as satisfying and involves no innocents in my need for emotional release, just the guilty.

    But, back to my point, we have a responsibility to others in our words. Yes, we have the right of free speech and we have a right to seek redress for wrongs. But, that doesn’t make us right to lie and slander others because they have upset you. That doesn’t give us the right to re-post lies and spread the harm because we like the person who wrote it.

    I have found a good rule of thumb for posting on the internet or even email, is to imagine what you just wrote on the front page of every paper in the US. Your picture and the picture of who you wrote about beside your words. Your mother, father, grandmother, grandfather, children, and all of theirs reading the paper and these words. Grandchildren or even great grandchildren not yet born picking up that paper and reading it fifty or a hundred years from now. It may be the only words you ever publish that they do read. Now with that image in your mind, do you still want to press send, publish, post, etc?

  4. interesting, as always, randy. going a little bit further, is there any liability involved in sharing, without comment, a posting by someone else.

    A very good question indeed. Feasibly, yes. Practically? Probably not. But the ethics are poor: you’d be actively participating in defamation, helping to damage an innocent party. -rc

  5. I cannot help but feel justice was not truly done in this case, despite the punitive damages. Chan built a successful business, which Liao destroyed more effectively than if she had taken a torch to a physical premise — as in that case, insurance would help to rebuild. It seems to me justice would include a valuing of Chan’s business prior to the defamation, as if she was going to sell it, and then having Liao pay that amount, because then, at least, Chan might have the capital to start over. It’s hard to imagine that 89,000 USD is sufficient to fully establish a new business with the same reputation Amara Wedding had prior to Liao’s attack. Additionally, there is no recompense for all the employees who were put out of work or experienced a reduction in work when the company went out of business. I understand this is a significantly large award to receive for malicious Internet publication, but Chan was definitely right in that her lost business cannot truly be compensated by it.

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