Late-Night Law: Censorous Threats and the Streisand Effect

As I’ve said in the past, Free Speech/First Amendment issues have always been my legal fascination.

I’m also a big fan of the Streisand Effect as those two tend to be intrinsically linked. This probably comes from my propensity for schadenfreude, but its is oh so satisfying to see a sort of karma-induced justice befall censorious thugs. It is also fun, because, typically, when the censorious thugs begin to feel the full force of the Streisand Effect, instead of backing off and saying “my bad,” censorious thugs tend to double down, which only makes it worse. And by worse, I mean more entertaining.

Tonight’s story comes courtesy of Popehat and Paul Allen Levy (and if you are a lawyer in Ohio and can offer pro-bono assistance, please consider responding to Ken’s Popehat Signal).

An Ebay seller by the name of Med_Express_Sales is suing one of its customers for defamation over poor feedback left on their page. Specifically, this piece of feedback, left by Amy Nicholls

Order arrived with postage due with no communication from seller beforehand.

Now, the important thing to remember about defamation, libel, and slander, is that, to have a case the alleged damaging statements must be false.

So let’s take a look at the complaint, which not only lists Nicholls as a defendant, but also Ebay itself. (emphasis mine)

6. On February 12, lOB, Nicholls paid for the item and shipping via Pay Pal. Promptly after receiving Nicholls’ payment, Med Express took the equipment to the Valley City post office. where it was weighed and shipped to Nicholls. Med Express paid the full amount of the shipping cost, but for some reason unknown to Med Express, the equipment was received by Nichols with $1.44 postage due.

7. When notified of the problem, Med Express immediately offered to reimburse Nicholls for the postage due amount. Despite this offer, and before giving Med Express a chance to reimburse her, Nicholls on February 26, 2013, apparently as a result of the $1.44 postage due, posted negative feedback and comments for the transaction on Ebay’s website and gave Med Express low ratings in the Detailed Seller Ratings section of Ebay’s Feedback Forum, resulting in an unfavorable feedback profile for Med Express. In so doing, Nicholls falsely and deliberately slandered the good name and reputation of Med Express.

First of all, even as a someone with no formal law education I know that slander was not the proper word to use in the complaint, as slander is spoken defamation, while libel is the term used for written defamatory statements

Second THE COMPLAINT ADMITS THAT THE ALLEGED LIBEL IS ACTUALLY TRUE. All Nicholls stated in her feedback was that the item arrived with postage due, and the complaint states “the equipment was received by Nichols with $1.44 postage due.” It boggles the mind.

Oh but it gets worse (or better, depending on your view of schadenfreude). Paul Allen Levy, of the Public Citizen contacted Med Express’s lawyer, a man by the name of James Amodio, and pointed this out to him. Here is the best part of the letter (again, emphasis mine)

You admitted that the facts stated in the feedback are true–in fact, you acquiesced in my comment that your complaint itself admits that the statements in the feedback were true–and you did not dispute my characterization of the relevant legal principles, but also indicated that you didn’t care, that is, that I could come to Medina Ohio and argue anything I wanted, but that what is needed for the case to go away is for negative feedback to be removed or, even better, changed to positive

This is utterly astounding, that even when he is confronted with the fact that, by his own admission, the case lacks merit, he doesn’t care and will continue with the litigation until he get his client’s desired result.

A few Popehat readers have contacted Med Express, and two commenter have posted that they got the exact same response

Unfortunately, this has nothing to do with bruised feelings or a “We’ll
show her!” mentality. Ebay charges thousands of dollars more when low
DSR’s or negative feedback is left. This negative feedback was left because
a package came postage due for $1.44 (which we volunteered to pay). Not
only was this unintentional, but something the central Post Office
assessed, even though the package was weighed at our local post office

Buyers must realize that leaving feedback must be done in a
factual way and not based on emotion. This had nothing to do with the
product, the shipping charges or the ship time, but was the result of Ms.
Nichols being “upset” over postage due. Her reaction can potentially cost
us tens of thousands of dollars over the course of the next year – all over

We tried everything to resolve this issue with her. We explained
the financial reasons behind our request to revise her feedback. We
apologized and offered to make this up to her. She ignored our requests and
Ebay will not amend the complaint unless by court order.

There are two
sides to every argument. We are not persecuting her but her actions can
potentially (based on current ebay sales) cost us over $5,000.00.

This right here is a good indication that they are not someone you want to do business with. Not only are they clueless that they have no case (something their lawyer should have informed them of) but they don’t understand at all why Nicholls would post anything but positive feedback. (There is also some discussion in the comments section on Popehat about whether their claim of potentially loosing $5,000 is reasonable or not, but I can’t comment on that as I have never been a seller on Ebay and I’m terrible at math. I will point out, however, that this whole claim is based on potential losses, not actual losses that have been incurred)

As Levy points out in his letter to Med Express’ lawyer

In a sense, what you and your client seem to be contending is that your client’s offer to pay $1.40 is a sufficient display of contrition that Nicholls ought to be forgiving. But the point that she made in her message to you was that the problem wasn’t the money but the hassle. She indicated that she would have been willing to pay $1.40 more in shipping up front, but that she was posting feedback because a company that ships products ought to do a better job.

So the statement that “Buyers must realize that leaving feedback must be done in a
factual way and not based on emotion. This had nothing to do with the
product, the shipping charges or the ship time, but was the result of Ms.
Nichols being “upset” over postage due.” truly shows that they have no idea how to deal with customer service. Nicholl’s feedback was, in fact, factual, and had nothing to do with being upset over the postage due, but the fact that, instead of getting the package delivered to her, as expected, that she had to take the time and effort to go to the post office to pay the due postage to pick up her package.

And here’s the real kicker. In response to Nicholl’s feeback, Med Express posted the following:

Sorry- no idea there was postage due. This has happened alot from USPS lately.

So, Med Express KNEW that this was a problem, and yet they continued to let it happen. This makes Nicholls feedback all the more relevant to other potential customers, as it is possible that another customer could encounter the same problem, and they need to be aware of it.

This also begs the question, how many others have had this same problem?

A Popehat commenter astutely points out that 8 other feedback posts on Med Express’ profile are listed as “revised” and Levy states

For all we know, the reason your client has so little negative feedback might be that it bullies critics by filing or threatening to file frivolous lawsuits every time negative feedback appears, thus artificially inflating its seller rating.

So, while at least right now we will never know what the revised feedback originally said, there is at least a possibility that Nicholls is not the first to experience this kind of behavior from Med Express, but simply the first not to back down when faced with their bullying tactics.

Hopefully someone will respond to the Popehat signal and come to the aid of Amy Nicholls, so that she can fight this baseless legal thuggery. If you are, or know someone who is, a lawyer in Ohio, please head over to Popehat and let Ken know that you are able/willing to help.


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