>Ginther claimed in subsequent online reviews that the company defrauded, scammed or deceived him by charging him for cedar siding they knew he had not ordered. He argued at trial that what he had said was true.
>But in a ruling on the case, B.C. Supreme Court Justice Nitya Iyer found that Ginther was not a credible witness and he had not proven the allegations.
The article isn't clear if his claims were true or not. The judge doesn't seem to believe him. Those are very specific claims. If they were untrue then I could see this outcome / I don't necessarily disagree.
I haven't posted many negative reviews online but the few I have all have been specific and accurate.
This is why the US sensibly protects opinion (this company committed fraud) based on disclosed facts (they charged me for siding I did not order), and flips the burden that the plaintiff has to prove the defendant knew the purported facts were untrue.
Which I mean, Ginther still obviously believes he did not order siding that he was charged for.
What do you mean? He would obviously know if he placed the order, and if he was charged for it. Either he's lying or his not, but he can't be mistaken.
Like thinking he ordered X amount but it was actually Y amount, or placing an order and it taking so long you forgot about it so you place it again, or ordering the wrong product code and failing to verify it, or skimming over the order and missing that the salesman added extras for whatever reason and signing it anyway, or…
If he didn’t remember placing the order, or believed that the order was modified, then at worst he’s mistaken, not lying.
Thats not correct. When placing these orders a sales person will put a sku code or a in house reference number on the quote document that doesnt actually mean anything to a normal person and agree to do work that the implementation team cant or wont do (this should sound familiar to people here). Ive seen this done personally.
They also dont charge all up front and might just want a deposit. So they might not realize the cost is higher. Its very easy for a immoral salesperson to try and get a customer to unwilling pay for something. And they have incentives to do so.
The article says it was over the phone.
Last month I went to a shop to order a specific size shower which would be delivered next day. The employee took my order, I paid and left. While driving home I got an email with my order, but I didn't check it.
The next day I come to get my delivery and realise it is not the correct size, I check my email and indeed the size is not correct.
The shop made no issue and ordered a new one but I lost 4 days.
…how exactly is that different from lying in your mind?
“Not credible” as far as proving that the plaintiffs acted fraudulently, which is a far cry from the plaintiffs proving that his allegations were false.
It would be nice to know whether or not the company did charge him for cedar siding, and if they did whether the company had a record of Ginther placing the order. Disappointed that information is not included in the article.
I wish judges were this lenient when someone took a business to court for false advertising. Can a business prove everything they write about themselves online? Are they reliable witnesses?
There was a case recently in the UK. A man fraudulently obtained a senior management position in the NHS. He did the job for more than a decade and everyone agrees he was very good at it. But he was jailed for fraud and ordered to repay a fat chunk of his salary.
The NHS suffered no harm. And as you say, employers routinely perpetrate worse frauds against employees. We have a double standard where people are routinely held to much stricter account than companies. It stinks.
He spent years hopping from job to job in different organisations. Some of them were NHS orgs, but others were charities. When his deception was discovered he left the job.
From your link: "the prosecution did not accept his claim that he had performed excellently during his time at various NHS bodies, saying he was rated as “unsatisfactory” in some of his job"
His original trial court documents aren't available, but his appeals against the confiscation orders are available:
The prosecution always overstate their case. The actual judgment says:
> Mr Andrewes has performed valuable services for the hospice and the two trusts in return for the net earnings and, if one were to focus solely on his performance of the services (before his fraud was uncovered), it would be hard to deny that the hospice and the two trusts were receiving full value in exchange for the salary paid.
IMO, this is one of many reasons we need an anonymous yet verifiable review system. I'm not positive how to even approach such a problem, to be honest.
I like to leave reviews, but not when places insist attaching my name to them(Google). Not because I'm lying, but because I don't want retaliation in some form if I return, or some psycho showing up at my house.
Sure I could make a burner with a fake name, but that's too much hassle.
It doesn't seem impossible, as long as we're not talking 100% perfect anonymity nor 100% verifiability.
Perhaps make users upload receipt dated within last x days, scratching out some details, and writing their username on it. It would take an admin all of 5 seconds to review and click approve, which would delete the receipt and allow the review through. Perhaps after x amount of verified reviews, just whitelisting the user. So at this point, your IP, username, and date of purchase are known to the review system, so not 100% anonymous.
Reviews without a receipt, or in waiting, are allowed but flagged as unverified or unsubstantiated. Probably allow them to be viewed, but not by default.
And of course, your typical spam preventions, review bombing deletion, etc.
All this will do is make it painful enough for regular users to never use the service (who even gets receipts from a restaurant anymore?) while malicious ones will be able to generate fake ones in seconds to review bomb.
In this case the trusted third party is the judge, who is reviewing the transaction and all associated communication.
Judging-As-A-Service is an interesting concept, but in practice it's perhaps best left to the State.
I don't see how you can add all-party anonymity without it being gamed. (Except possibly for the judge - which would might not be a bad thing because it could mitigate some of the corruption possible under the current system.)
I don’t see this case as a reason. It seems the system worked as intended here. Defendant made very specific claims in their review “charged for goods not ordered”, it went to the judge and the defendant could not prove what they said was true.
Just be careful that when writing a review you don’t lie or embellish the facts. As well as making it clear when you are just stating an opinion. “the goods I received were not of the quality I expected” (opinion based) vs “the vendor intentionally gave me bad quality goods” (speculative and not easy to prove).
Presumably, someone signed a receipt. According to the article, it was done on a Visa payment card.
Home improvement isn't exactly cheap, so I would hope people doing such things would be reviewing their receipts, particularly if they're in the business of constructing homes.
If you're going to make strong claims about an individual or a company in printed text, then make sure you have the receipts to prove it. The only thing "special" about this is that it happened online, and not in a newspaper or other deadtree publication.
Well but at the same time reviews on those platforms are opinion related to services rendered. I suppose it’s fair to say that comments can be worded in a better way in order to avoid something like this. It could also see the going after Google and other services that offer a review platform because I feel there should be a legal warning shown before posting a review if it is no longer taken as opinion and instead is considered factual. This also somehow feels like a win for companies like Comcast/Xfinity that are often reviewed terribly.
This was different than a simple opinion about quality or service; he claimed that the company engaged in fraudulent behaviour, but did not provide sufficient evidence to support that claim.
He also admitted his intent was to cause harm to the business. Even without "receipts" I suspect he wouldn't be looking at such large judgment if his motivation hadn't been malicious.
Well, either you intend to cause harm to the business, or you intend to protect possible future customers. I think if he had just said, "I wanted to make sure any future potential customers knew the experience I went through so they wouldn't run into trouble", the judge may have been more sympathetic.
Yes, protecting future customers would probably cause harm to the business, but intent matters.
To advise those about to enter into employment/contract/other with said company. It would cause harm to the company indirectly, but the intent was not to harm the company, but instead to help those about to interact with them.
You can also negatively review something with the hope that the feedback would prompt the company to make positive change.
That's just the wise defensible argument that everyone should be making regardless of truthiness, but imagine that you think a restaurant sucks and should die. While it should be wrong to make false statements about businesses, it shouldn't be wrong to want a business to fail.
The motivation for improvement or helping other customers should not be the only safe motivations to have. It should not be considered inherently immoral or unsavory to want some businesses to fail.
The issue at hand is whether the individual intended to harm the business. Malicious intent matters a great deal in law. It's why there are different degrees of murder/manslaughter. To take your example to the extreme. It's OK to want to murder someone, but if you go out of your way to actually do it, you'll be booked for 1st degree. If instead, you run a stop sign and someone gets killed, the penalty will be much less.
I think the issue is that it's harder to tease apart why you want to harm the business. Sure, you might say "they screwed me over, and I want to hurt them", but maybe you're lying, and it's really "they're of a race I don't like, and I want to hurt them" or even just "the owner was rude to me, and I want to hurt them". Those aren't defensible reasons to publicly attack someone, or their business.
But if you claim that you just want to protect future potential customers from having a bad experience, that shows some level of emotional detachment from the experience that you yourself had, and makes it seem more likely that you're being reasonable instead of just lashing out, and possibly exaggerating or even lying.
Certainly this isn't an iron-clad, 100% reliable heuristic, but it's not terrible.
And on a higher level, I think we just need more positive process in the world. Trying to protect others is positive; getting revenge is negative. Revenge serves no useful purpose, and often the revenge seeker doesn't really find what they're looking for (emotionally) after getting revenge. It's just toxic all around. Now, that shouldn't be a legal consideration, I don't think, but from a social/society standpoint, maybe it's important.
I think that the standard should be on whether you made false harmful statements, and not whether you accidentally or nobly made harmful false statements, with little or no focus on mens rea.
If I said that a restaurant is unsanitary and unsafe but my claims are false, does it really matter if I'm trying to protect other people but in the process I destroy a decent business? Alternatively, if I truthfully claim that a restaurant is unsanitary and unsafe but my claims are true, does it matter what my emotional underpinnings are? Our attention should be on whether harm was justified from verifiable facts and not on the flimsy assessment of individual psychology.
Perhaps we find out that the Twitter whistleblower wants to harm the business because they're angry at Twitter's relationship to society. With a broad slate of issues to worry about, should we be directing our finite attention to the truthiness and weightiness of claims as verifiable by facts, or should we be focusing on individual psychology?
> If I said that a restaurant is unsanitary and unsafe but my claims are false, does it really matter if I'm trying to protect other people but in the process I destroy the a decent business?
Yes, it matters.
The mental state limitations in (for instance) US law on defamation are about where the higher value of freedom of expression trumps the concerns motivating defamation law, which is why defamation requires at least simple negligence, and in some cases has a more stringent mens rea element.
> Alternatively, if I truthfully claim that a restaurant is unsanitary and unsafe but my claims are true, does it matter what my emotional underpinnings are?
Well, no, and that's why falsehood is also a required element.
As harmful speech to businesses is generally a civil matter, why should we desire mens rea? Why ought the search for relief hinge on whether someone was noble as opposed to whether they spoke falsely and harmfully? Every other person in society feels they are righteous in their mind.
> I don't see a requirement for negligence or higher moral culpability in my reading,
You may not find it in the state statute, because it is a federal Constitutional limitation grounded in the First Amendment. See, Gertz v. Robert Welch, Inc. 418 U.S. 323 (1974).
> As harmful speech to businesses is generally a civil matter, why should we desire mens rea?
Because Constitutional limits on government power (except those specifically by their own terms tied to criminal law) affect all uses of government power, including providing civil remedies through the judiciary.
People freely expressing honest views without failing some legal duty of care cannot be punished in a society where from of expression is viewed as a fundamental right.
> (c) So long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood which injures a private individual and whose substance makes substantial danger to reputation apparent. Pp. 418 U. S. 347-348.
> 2. The States, however, may not permit recovery of presumed or punitive damages when liability is not based on knowledge of falsity or reckless disregard for the truth, and the private defamation plaintiff who establishes liability under a less demanding standard than the New York Times test may recover compensation only for actual injury. Pp. 418 U. S. 348-350.
What I see is that states may not permit recovery for punitive damages, but it's fine for states to have laws which permit recovery for harm alone without finding of any fault. I don't really have an opinion on extra punitive damages, just really focusing on whether parties ought be able to seek relief for demonstrated harms despite any noble intentions.
> What I see is that states may not permit recovery for punitive damages, but it's fine for states to have laws which permit recovery for harm alone without finding of any fault.
No, what it says is: States can set their own rules as long as (1) they do not assign any defamatiom liability without fault [negligence being the minimal standard of fault, “So long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability”; emphasis added] and (2) they allow only actual damages for defamation unless the standard is at least the much higher actual malice standard set forth for any defamation about public figures in New York Times v Sullivan [“The States, however, may not permit recovery of presumed or punitive damages when liability is not based on knowledge of falsity or reckless disregard for the truth”].
This idea of "harm" is actually a really big issue in many current societies (at least Canada and United States) .
There is no monetary value of "harm" unless there is a claim of financial loss. But those financial losses are often future presumed customers, the company essentially claims a right to future revenue. However if an injustice has been done to the customer the company rightfully should lose future revenue.
I agree with you about ego driven revenge. But in fact to allow a bad actor to perpetuate is actually injustice and good people at lease care about, if not act to prevent, injustice.
Just like (IANAL) most court items, the fact of the matters matters most, the intent is mostly about modifying the consequences.
EDIT: this idea of "harm" is also what allows rights holders to go after Pirates by claiming that every download is a lost sale, which is clearly not true.
There are many reasons someone might want a restaurant to die that have nothing to do with the quality of the food or service - including racism, snobbery, property speculation, competition, and personal vendetta.
It's hard to see how they're likely to benefit potential customers.
If a company stated that all their building materials were able to withstand the impact of a bullet in a public forum. You can sue them when you purchased said materials and found out they weren't bulletproof. You don't have standing to sue, just because you read that post. Its only when you become a customer based on those materials.
Edit: Of course you can sue, it'd just get thrown out for no standing. Nothing stops you from suing.
Sure, why not? Whether or not you'd win is another matter. I don't know that many people succeed at false advertising suits, in general, regardless of where the advertising happens.
This always worries me, and I never post reviews online as a result. Where I live, there are pretty severe penalties for defamation, and I'd rather not find out how it goes in court. However, it seems like Google or Yelp could bind both parties to arbitration if they want to list their business or post reviews of businesses on their website. Is there are reason they don't do that?
There's really no incentive for Google or Yelp to do this, though. Clearly plenty of people still post reviews (positive and negative), and businesses do get value out of it (though certainly all businesses are not happy with the forced relationship). So all Google and Yelp would be getting out of it is cost and headaches. It doesn't really matter to them if a business and customer get into a legal fight; the most they might have to do is follow a court order to take down a review or something, which is no big deal.
Also consider that many business don't exactly consent to be listed on Yelp or Google, and have no business relationship with Yelp or Google (many do, but not all). So there'd be nothing for the business owner to agree to, and they'd be free to sue a reviewer, regardless of whatever agreement Yelp or Google have dreamed up.
Google and Yelp do not want the hassle and administrative cost of running arbitration.
For firms that do arbitration in their EULAs or TOS, some of them have been targeted to purposefully overwhelm them with the expense of many cases going through arbitration.
I find the "economics" of reviews to be so weird - it is NOT worth it to me to review something badly, and does a good review from me really help anything?
At most a "I would shop here again" button might be something I'd press.
Some more context from the actual opinion. Sounds like Ginther (the reviewer) had two separate orders he was considering, he gave the go ahead on one, but the lumber company misunderstood and charged him for both. The court found that Ginther knew it was a mistake and not "Fraud" so the allegation was defamatory. There's a bunch more in there - Ginther had received an invoice for both charges but didn't read it, and lied about not receiving it, etc etc.
[22] On February 18, Ms. Jenkins emailed Mr. Ginther stating that she was attaching his invoice for the hemlock soffits, which she said would be delivered the next day. Ms. Jenkins stated:
I will process your credit card for the balance tomorrow unless I hear from you. If you prefer you may give a cheque to the driver. We will hold the Cedar until you are ready for a colour and delivery. No Rush. It is safely stored and covered in our warehouse.
[23] Mr. Ginther responded the same day, directing Ms. Jenkins to “pay the balance on our visa (less the $7500 deposit)”. He added: “Will let you know on the cedar when we make a decision.”
[24] Longhouse charged Mr. Ginther’s credit card with the balance for both invoices, less the $7500 deposit, for a total of $14,428.62 on February 19, 2016.
[25] When the soffits were delivered, Mr. Ginther was very unhappy with the quality of the stain. He complained to Mr. Jenkins. Longhouse retrieved the soffits, re-stained them, and redelivered them to the site in mid-March. Mr. Ginther said he was still very dissatisfied with the stain. However, he accepted delivery and installed them because he did not want to delay construction.
[26] On March 31, 2016, Mr. Ginther noticed the charge from Longhouse on his credit card statement, which included both the soffits and the siding. He contacted Ms. Jenkins by phone and email. He said that he had not ordered the cedar siding and that the quality of stain on the soffits was unacceptable. He demanded a refund of the charge for the siding ($6,902.07) plus an additional $1,000, which was his estimate of 50% of the cost of re-staining the hemlock soffits. He added that if the refund was not processed by the next day, he would be calling “visa fraud”.
[27] Matters deteriorated from there. On April 1, the two men had a heated text exchange, which quickly escalated to crude insults. Each gave as good as he got. Later that day, Mr. Jenkins emailed Mr. Ginther, warning him that he considered his reference to fraud defamatory, and stating the plaintiffs’ position that Mr. Ginther had ordered the cedar in December 2015. Mr. Jenkins asked Mr. Ginther to arrange to pick up the cedar siding and advised him that he would be charged a storage fee commencing April 6.
[28] Mr. Ginther did not respond. On April 28, Longhouse attempted to deliver the cedar to the site but Mr. Ginther refused to take it. The delivery company returned it to Longhouse.
[29] In early April, Mr. Ginther and his wife complained to their credit card company about the transaction. It investigated and ultimately dismissed their complaint.
[30] Mr. Ginther posted the Google review some 16 months later, in November 2017. He posted the Yelp review on January 3, 2018.
[31] These facts do not prove that Mr. and Ms. Jenkins intended to and did charge Mr. Ginther $6,902 for cedar siding they knew he had not ordered. At most, they prove that the plaintiffs mistakenly believed that Mr. Ginther wanted to order the cedar and charged him for it.
> [31] These facts do not prove that Mr. and Ms. Jenkins intended to and did charge Mr. Ginther $6,902 for cedar siding they knew he had not ordered. At most, they prove that the plaintiffs mistakenly believed that Mr. Ginther wanted to order the cedar and charged him for it.
Assuming the points you've posted are the complete picture, this seems like the wrong conclusion. At the point of #26, the Jenkinses should have known that the cedar was unwanted. At #29, they must have submitted some evidence or at least a statement in support of the transaction to the credit card company.
> [23] Mr. Ginther responded the same day, directing Ms. Jenkins to “pay the balance on our visa (less the $7500 deposit)”. He added: “Will let you know on the cedar when we make a decision.”
That email clearly expressed that he did not intend to pay for the cedar yet.
Then maybe he shouldn't have said that he wants more than the specified amount of siding:
> [19] On February 10, 2016, Ms. Jenkins emailed Mr. Ginther that she was couriering cedar samples to him and attached a confirmation notice dated February 3, 2016. It showed a revised amount of hemlock (now 6,000 LF), with the stain noted as Cloverdale Messmers Oak Brown; 2,400 LF of cedar siding and specific amounts of cedar for the window trim. The confirmation stated that the stain colour for these last two items was undecided. Later that evening, Mr.
Ginther replied to Ms. Jenkins’ email as follows:
> The cedar siding # we are still sorting out final volume and it could be more than quote. How long is the turnaround time on this product?
> Secondly the 2x4 and 2x8 trim we only discussed and won’t be needing those at this time.
>[20] In response, Ms. Jenkins emailed Mr. Ginther on February 11, 2016 saying that she had deleted the cedar window trim and attaching a revised confirmation, which included the hemlock soffits and the cedar siding, again noting that the cedar stain colour was undecided. Ms. Jenkins also couriered raw cedar samples to Mr. Ginther that day
The whole thing, including invoices that mention the siding stretch over the weeks and it is explicitly noted that only question about the color is undecided (we will tell you later).
He said it "could be more", and seems to be trying to sort out the lead time for when he does commit to the order. Having not specified the color seems akin to not actually consummating the order for cedar siding, but that ultimately depends on the mutual understanding regarding what constitutes a "custom order" is. It seems like unstained cedar siding is something the supplier stocks, not cut to a specific length or anything, and therefore the they didn't incur additional costs from relying on the prospective order.
There is a sharp difference between invoices and quotes. And the samples actually indicate that the order had not been agreed to yet.
The overall situation reads like the customer was unhappy with the quality of lumber [0], and wished to cancel subsequent business rather than try to compel specific performance for an acceptable quality. The supplier, rather than simply accepting this and going their opposite ways (and/or responding with a specific penalty amount for canceling the half-completed order), then attempted to compel specific performance on the remaining part of the quote. I'm sure glad I don't live in a jurisidction where calling that type of pushy business practice "fraudulent" might land me in court.
[0] Having just used Home Depot's bring-the-lumber-pile-to-your-driveway service, that then took over a month to pick up the rejects, which for some things was all of what was ordered, I completely identify with.
How so? Legally, I don't see anything particularly unusual about this.
I don't think there's ever been any case law to suggest that online reviews enjoy some kind of blanket protection from libel laws. Whether a particular statement is defamatory depends on a lot of complex factors, but the medium of communication is not especially relevant.
At least in the USA, the frequently-mischaracterized section 230 of the CDA would (probably) have protected Google and Yelp themselves from being sued over their users' reviews. It wouldn't have done anything to protect the review's author. I don't know how Canadian laws compare.
>But in a ruling on the case, B.C. Supreme Court Justice Nitya Iyer found that Ginther was not a credible witness and he had not proven the allegations.
The article isn't clear if his claims were true or not. The judge doesn't seem to believe him. Those are very specific claims. If they were untrue then I could see this outcome / I don't necessarily disagree.
I haven't posted many negative reviews online but the few I have all have been specific and accurate.