A New Jersey libel suit illustrates the challenges faced by businesses seeking to settle the score when employees take to online review sites to denigrate them.
A Superior Court judge dismissed a suit filed by Sensor Products of Madison, New Jersey, against a former employee whom the company accused of posting libelous reviews on Glassdoor.com.
Judge Louis Sceusi said statements that Sensor “has an astronomically high turnover rate” and that owner and CEO Jeffrey Stark is “the sole cause of every issue that exists” are not defamatory because a reasonable person reading those statements would recognize them as hyperbole from a disgruntled former employee.
Nonactionable?
A series of anonymous posts about Sensor appeared on Glassdoor.com in August 2021, a few days after the company fired employee Mehmet Sakman.
Sensor and Stark, concluding that Sakman was responsible for the posts, filed a suit in September 2021 with claims for libel.
Sakman, represented by Bruce Rosen of Pashman Stein Walder Hayden in Hackensack, moved to dismiss the suit in December 2021 for failure to state a claim on which relief can be granted.
Sakman claimed the defamation and trade libel claims are premised on “willfully mischaracterized, non-actionable statements of opinion, hyperbole or otherwise non-defamatory speech,” and that the trade libel claim fails because the plaintiffs failed to plead special damages with requisite specificity.
Sakman also asserted that the tortious interference claim is duplicative of the defamation claim, and therefore seeks to subvert the plaintiff’s free speech rights.
The lawyer for Sensor and Stark, Steven Resnick of the Resnick Law Firm in Short Hills, New Jersey, did not respond to requests for comment. Rosen could not be reached because he’s out of the country.
‘Everyone Has a Platform Now’
Sorting out how to respond to negative online reviews has become part of the territory for employers since the emergence of portals such as GlassDoor give workers the ability to reach a large audience with their criticism, said Carolyn Conway Duff of Wiley Malehorn Sirota & Raynes in Morristown, New Jersey.
Duff, an employment lawyer who is not involved with the Sensor case, is a former fellow of the Media Law Resource Center who has written about employees’ speech rights online.
Carolyn Conway Duff of Wiley Malehorn Sirota & Raynes. Courtesy photo“If you wanted to defame your boss in 1970, your options were pretty limited. If you wanted to reach a big audience, you probably had zero options. Everyone has a platform now,” Duff said.
Duff said the difference between libel and permissible postings about one’s boss often come down to the difference between opinions and statements presented as facts.
“I like to use the example of a restaurant context: It’s one thing to say the food is terrible. That’s opinion. You can’t sue them for that,” Duff said. “But if you were to say the chef is putting shards of glass in the food, that’s factual because either he is putting shards of glass into the food or he is not. But to say it tastes like shards of glass in the food, that would actually fall under opinion.”
An unhappy worker who wants to criticize his employer online can say “pretty terrible stuff as long as it falls under that umbrella of opinion or hyperbole,” Duff said.
‘In the Eyes of a Reasonable Person’
In the Sensor case, Sceusi said the posting that Sensor is a “garage company” that “made it up to the first floor” because it is in a niche market with little competition is not actionable because it is an expression of opinion.
The posting that “any skill or work ethic or asset that employees bring to the table is rendered irrelevant” is likewise a nonverifiable statement of opinion, the judge said.
The postings accusing Stark and Sensor of “acting in bad faith,” “trying to con” employees and concocting a false reason to fire Sakman are not actionable for libel but are “rhetorical hyperbole,” Sceusi found.
Where a posting says Sensor withheld documents that Sakman needed to apply for unemployment for a week “may satisfy the requirement for verifiability,” but is not actionable because even if false, it is “not actionable because it would not tend to harm the plaintiff’s reputation in the eyes of a reasonable person,” the judge found.
When evaluating such issues, a court must “consider the impression created by the words as well as the general tenor of the expression, as experienced by a reasonable person,” Sceusi said. When evaluating the postings about Sensor and Stark, the person making the posting is identified as a former employee, he found.
Sceusi said, “Viewing the publication as a whole, it is evident that defendant Sakman is a disgruntled former employee who was let go.”
