Defamation, Libel and Slander
Using the law to persuade people and companies to remove IP complaints and when appropriate, seek lost profits.
Amazon marketplace sellers are often victims of false IP complaints.
You may be banned or suspended by Amazon due to complaints about your listings whether they are true or not. The complaints themselves are looked at by Amazon to be policy violations. While your only remedy with Amazon may be to address the violation or submit a Plan of Action to get your listing or account reinstated, you may be able to recoup your lost profits against the person or company that made the false complaint against you.
Defamation is a civil wrong. You can sue and/or use the law to help you get the complaint retracted.
Defamation is an all-encompassing term. It covers any false statement that hurts or damages a person’s reputation. If the damaging statement is made in writing and published, it is called libel. If the damaging statement is verbally spoken, it’s slander.
Using a lawyer familiar with anti-defamation laws can help you get reinstatement of your Amazon seller account and prevent future harm by addressing it at the source: the person or company that made the complaint.
If your lawyer let the person/company that made the complaint know that they could be liable for tens or hundreds of thousands of dollars for their complaint, don’t you think they would retract it? Amazon sellers should obtain retractions of all complaints because AMZ doesn’t tell you what they are holding against you or when it might result in a suspension.
What is defamation?
Someone made a statement;
The statement was published;
The statement caused you injury;
The statement was false; and
The statement was not privileged.
Have I been defamed?
There is a fine line between the right of freedom of speech and the right to avoid defamation.
On one hand, people are free to talk about their experiences in a truthful manner without fearing a lawsuit.
On the other hand, Amazon sellers have a right to not have false statements made that damage their reputation.
Where can I look for this?
False & damaging comments on your business website
Internet forum postings about your business
Facebook comments on your Facebook page
Personal “protest” websites making false claims about you
Mass emails about your business
Each element of defamation is discussed below.
Defamation statement: A defamatory statement can be verbally spoken, which is slander. Statements that are published, making them available to be seen by others, is libel.
Publication: If another person besides you can see, hear or read the statement, it is considered “published.” Negative feedback or anything written online, printed anyplace newspaper or on television or even in an email could man it was “published” under the law.
Injury: A statement injures your reputation or business if it results in lost sales. A single suspended listing could be enough.
Privileged: A privileged statement includes specially protected claims like when a police officer or public official accuses someone of breaking the law.
Why would someone want to defame me?
A competitor or a disgruntled consumer could make wrongful A-Z claims to sabotage your business. They may accuse you of dishonest practices such as selling forbidden/restricted products, expired products, or even copyright or trademark infringement. Someone may post negative feedback online. They may claim that they found your products not matching listings on Amazon. They may say you sell products not as described, that they’re counterfeits, or you’re selling used instead of new merchandise. It could be your service, such as contact response time, self-cancelled orders, late shipments or lost packages.
The Impact of Social Media
With the incredible rise of social media, it is now easier than ever to make defamatory statements online. In addition to posting negative feedback on Amazon, Twitter and Facebook allow someone to instantly publish defamatory statements to thousands of people.
Negative feedback statements that attempt to divert transactions or buyers can be published in a disparaging blog post, Facebook status update or YouTube video. You can take legal action if statements are published this way.
Personal “protest” websites which dedicate themselves to making false claims about your business
So, how can a business protect itself against defamation?
Actively prevent suspensions on Amazon.
1) Read every negative feedback;
2) Respond to every negative feedback;
3) Try and get each and every negative feedback retracted;
Prepare for an Amazon suspension by having a bullet point for every single negative feedback or problem that arises so that if you need it, your Plan of Action can be completed and submitted immediately after any suspension notice has been sent.
Unlike non-lawyers, we can use the law to actively prevent suspensions and address suspensions at the source: the person or company that complained about you.
When you discover that your Amazon account has been defamed, obtain legal counsel as soon as possible.
Amazon.com has been involved in multiple defamation lawsuits.
Many of these cases arise because a third-party Amazon seller has sold an item, such as a book, through the Amazon platform, and that item defamed another party. The party who believes their rights were violated will often file suit against not just the seller, but Amazon.com as well because Amazon was the platform that allowed this content to be available. According to Black’s Law Dictionary, defamation means:
- Malicious or groundless harm to the reputation or good name of another by the making of a false statement to a third person. If the alleged defamation involves a matter of public concern, the plaintiff is constitutionally required to prove both the statement’s falsity and the defendant’s fault.
- A false written or oral statement that damages another’s reputation.
If a buyer finds content being sold on Amazon that is defamatory, they may go after Amazon.
In Berkery v. Estate of Lyle Stuart1, a book was published and sold on the Amazon website that allegedly defamed the plaintiff. Amazon successfully argued that there was no evidence that the website intentionally published the book with knowledge of the defamation and the court ordered summary judgment in favor of Amazon. There have also been claims of defamation that occurred within the comment section of Amazon’s website that allows customers to write reviews. When a seller finds themselves unhappy with the reviews, they contact Amazon. Amazon has the discretion whether to remove the comments or not. When Amazon does not remove the comments, some sellers have filed suit, claiming defamation.
In Hammer v. Amazon2, Hammer had received negative reviews and requested that Amazon take action. The court granted Amazon’s motion for permanent injunction because the reviews were mere opinions, not actual defamation.
Amazon found itself in a similar situation in Schneider v. Amazon3, but instead argued that the Communications Decency Act (CDA) barred the plaintiff from recovery.
Similarly, in Rosner v. Amazon4, Amazon did not remove a negative comment and the court dismissed the complaint finding the plaintiff failed to state a cause of action.
However, Amazon has also been caught up in litigation due to employees alleging defamation.
In Dobias-Davis v. Amazon5, Dobias filed suit-alleging defamation in addition to gender and age violation of the ADEA. Amazon moved to dismiss the claims, but the court found that there needed to be more factual development to decide whether the case should be dismissed.
- Berkery v. Estate of Stuart, 412 N.J. Super. 76, 988 A.2d 1201 (Super. Ct. App. Div. 2010).
- Hammer v. Amazon.com, 392 F. Supp. 2d 423 (E.D.N.Y. 2005).
- Schneider v. Amazon.com, Inc., 108 Wash. App. 454, 31 P.3d 37 (2001).
- Rosner v. Amazon.com, 2015 NY Slip Op 07638, 132 A.D.3d 835, 18 N.Y.S.3d 155 (App. Div.).
- Dobias-Davis v. Amazon.com.kydc, LLC, Civil Action No. 3:15-cv-00393-JAG, 2016 U.S. Dist. LEXIS 3396 (E.D. Va. Jan. 11, 2016).
Berkery v. Estate of Stuart, 412 N.J. Super. 76, 988 A.2d 1201 (Super. Ct. App. Div. 2010).
This is a case where plaintiff claimed that defendants deliberately acted with malice against him. The court held there is no clear evidence the defendants acted with malice because a reasonable juror would not be able to say the defendants acted with malice against the plaintiff. The plaintiff’s criminal records were open to the public so he qualifies as a limited-purpose public figure. The defendant did not intentionally publish information about the plaintiff with knowledge of it being false or disregard if the published information was true or false. The evidence that the plaintiff has provided did not show any proof the defendants acted knowing the information published was false.
Dobias-Davis v. Amazon.com.kydc, LLC, Civil Action No. 3:15-cv-00393-JAG, 2016 U.S. Dist. LEXIS 3396 (E.D. Va. Jan. 11, 2016).
Dobias-Davis was suing Hoffman, her supervisor, and Amazon, her employer, for defamation and retaliation claims under Title VII and the ADEA. Amazon filed a motion to dismiss the claims, which was granted in part in relation to retaliation, as the court determined it did not have enough factual information to dismiss and denied in part in relation to the defamation claim, as it determined she did not participate in the protected activity.
Hammer v. Amazon.com, 392 F. Supp. 2d 423 (E.D.N.Y. 2005).
Amazon was involved in an action where plaintiff, Jeffrey Hammer raised a number of claims including breach of contract, defamation, violation of copyright laws. The defamation claims focused on negative reviews posted on the Amazon platform regarding a book written by plaintiff. Plaintiff claimed that Amazon breached their contract because they failed to remove negative reviews of his book from the Amazon platform. The court granted Amazon’s motion for a permanent injunction preventing plaintiff from bringing any future action against Amazon.
Schneider v. Amazon.com, Inc., 108 Wn. App. 454, 31 P.3d 37, 2001 Wash. App. LEXIS 2086, 29 Media L. Rep. 2421 (Wash. Ct. App. 2001).
In this case, plaintiff had written many books on the topics of both taxation and asset protection. The books were for sale on the Amazon platform. The Amazon platform allows consumers to leave reviews for the products they have purchased. Amazon posted visitor’s comments about plaintiff and his books. The comments were negative and one alleged plaintiff was a felon. The court found that Amazon is immune from liability for defamation by third-parties under the Communications Decency Act because Amazon is a provider of interactive computer services, plaintiff’s claims treat Amazon as a publisher, and Amazon is not the information content provider.