..... Romeo called Mr. Giordano a convicted felon (a statement which was factually untrue), this made Mr. Giordano a helpless victim who suffered severe and unfair damage to his reputation. But is that really the case? Ripoff Reports Response To Inaccurate Media Coverage In Giordano v. Romeo
Why does the Florida Court of Appeal believe that a website that defends the U.S. Constitution and allows users to speak their minds is "appalling?"
On December 28, 2011, a state appellate court in Florida issued an important decision in a case involving the Ripoff Report website entitled Giordano v. Romeo, --- So.3d ---, 2011 WL 6782933 (Fla.App. 3rd Dist. 2011).
The Giordano case involved a lawsuit filed by a Florida drug and alcohol treatment center (G&G) and its owner (John Giordano) against a former customer (Donna Romeo) who posted a negative review of her experience on the Ripoff Report website.
This case has received a great deal of inaccurate and unfair media coverage, so we wanted to take a moment to set the record straight by providing the real facts about this case to you. I. BACKGROUND FACTS
The Giordano case arose from a negative review
posted on the Ripoff Report website in July 2009. This review was written by a real customer, using her real name, and it described her real disappointment with the services she received at Mr. Giordanos treatment center in Florida.
In his Complaint
, Mr. Giordano claimed that Ms. Romeos review
was false and defamatory. However, rather than just seeking damages from Ms. Romeo and rather than merely asking for an update or correction to the review, Mr. Giordanos lawsuit was primarily focused on something elseobtaining a pre-trial injunction that would require Ripoff Report to remove
Ms. Romeos entire
review even though most of the review was Romeo's opinion and was true.
This request was highly unusual for two primary reasons. First, the case had not yet proceeded to trial, so no jury had determined whether the review was true or false. Second, much of the review was simply Ms. Romeos protected expression of opinion. As a matter of law and with only a few very narrow exceptions, opinions (like Coke is better than Pepsi or chocolate or better than vanilla) generally cannot be proven false. For that reason, opinions are generally entitled to the strongest level of First Amendment protection available.
Unfortunately, many people including Ms. Romeo do not have significant legal budgets to defend themselves when they are sued, and defending a typical lawsuit can easily cost $100,000 or more. For that reason, many authors believe they have no choice but to cave to economic pressure by requesting that Ripoff Report remove their reports even when the statements involved are completely true. Thats exactly what happened in this caseexcept for one good faith factual error, Ms. Romeo stated that everything else in her report was completely honest and truthful. However, because she could not afford the cost of defending Mr. Giordanos lawsuit, she agreed to ask Ripoff Report to remove her report in the hopes that by doing so Mr. Giordano would drop the case against her.
Based on our long track record of fighting to protect the First Amendment, Ripoff Report determined that we could not stand by and allow this to happen. As such, we decided to stand up for Ms. Romeos rights and argue that the court lacked legal authority to force us to remove her review. II. PROCEDURAL HISTORY
At the trial court level, Ripoff Report argued that Mr. Giordano was not entitled to injunctive relief requiring the removal of Ms. Romeos review for several reasons. One such reason was an argument based on the immunity provided by a federal law called the Communications Decency Act or CDA. In short, the CDA provides that websites and their hosts are completely immune from being sued in most types of cases which arise from statements posted on the site by a third party user. In the most commonly used example, this means that if you are targeted by a false statement on Facebook, you can always sue the author of that statement, but you cannot sue Mark Zuckerberg or Facebook for allowing the statement to be posted. This is a common-sense rule that is supposed to prevent websites from being embroiled in costly lawsuits arising from material that was created by one of the sites users.
The first judge assigned to the Giordano case disagreed with our argument and determined, without citing any authority to support his view, that the CDA did not prohibit the imposition of an injunction that would require us to remove Ms. Romeos review. However, while the case was pending, the first judge ran for reelection and lost, so he was replaced by a new judge. Immediately after taking over the case, the new judge agreed with Ripoff Reports legal argument and concluded that the injunction requested by Mr. Giordano was barred by the CDA.
Mr. Giordano appealed this ruling, claiming that the first judge got it right while the second judge got it wrong. In an extremely short (2-page) decision, the Florida Court of Appeal agreed with Ripoff Report and noted: the law on this issue is clear. [Ripoff Report] enjoys complete immunity from any action brought against it as a result of the postings of third party users of its web-site. As such, the Court agreed that Ripoff Report was not required to remove Ms. Romeos review. III. RIPOFF REPORT WINS; BUT THE COURT CLEARLY ISNT HAPPY ABOUT IT
Even though the Florida appellate court agreed completely with our legal position, in doing so the court used exceptionally harsh language to criticize the Ripoff Report and our non-removal policy, stating, The business practices of Xcentric are appalling. Xcentric appears to pride itself on having created a forum for defamation. But was Mr. Giordano really defamed here? The court seems to think he was, but was that really the case?
Although it is true that Mr. Giordano does not have a felony conviction on his record, by his own admission in a video posted on YouTube, Mr. Giordano
previously used illegal drugs and by his own admission he previously sold illegal drugs including cocaine in Florida. Under Florida Statute 893.13, the sale of cocaine in Florida is a felony
, so while it is technically accurate to say that Mr. Giordano is not a convicted felon, it is hardly accurate to say that Mr. Giordano has a squeaky-clean past devoid of any unlawful conduct. Thats simply not the case.
The truth here is Mr. Giordano has admitted to committing serious crimes including crimes which would constitute felonies under Florida law, albeit ones for which he was never charged or convicted. Oddly, even though these facts were brought to the attention of the Florida Court of Appeal, there is no mention of them anywhere in the courts opinion. As a result, the court inaccurately portrayed Mr. Giordano as an innocent victim of completely false statements when, in reality, the statement about his criminal past was largely true, according to his own admissions.
Ironically, in its discussion of the case and of Ripoff Reports business practices, the Florida appellate courts decision demonstrates a fundamental misunderstanding of the Ripoff Report website. Of course, just as the First Amendment protects Mr. Romeos expressions of opinion, and just as the CDA protects Xcentric, the Florida court is also protected by the doctrine of absolute judicial immunity, so no matter how inaccurate the courts opinion might be, the judge who wrote the opinion cannot be sued for any false statements in that decision. What the court failed to understand
is this Ripoff Report does not
pride itself on creating a forum for defamation any more than the court system prides itself on sending innocent people to prison. On the contrary, Ripoff Report prides itself on creating the first and best forum for consumers to have a real voice that has a real impact on business practices. Before a business engages in wrongful or poor business practices, the business now must consider that its actions are likely to be discussed and described online. Except to those who have something to hide, the Ripoff Report website is far from appalling. Instead, the site has helped to inform consumers, educate business owners, and improve customer service. The fact that the site is not perfect and that some users might abuse the system makes it no less appalling then the justice system, which is also abused by some.
The Florida Court of Appeal also stated that Ripoff Report will not entertain any scenario in which, despite the clear damage that a defamatory or illegal post would continue to cause so long as it remains on the website, Xcentric would remove an offending post. This statement is highly misleading.
Since our site was founded in 1998, Ripoff Report has always had a policy of removing specific allegations of violent criminal acts or convictions which are proven to be incorrect. More recently, Ripoff Report began offering an arbitration program that does include removal of false statements of fact.
Even after the Ripoff Report arbitration program was launched, Mr. Giordano continued to aggressively pursue a lawsuit against Ripoff Report in which he demanded the removal of Ms. Romeos entire review
, including the true statement of fact and Ms. Romeos honest opinions. This type of conduct is an affront to the liberty guaranteed by the First Amendment, so Ripoff Report had no choice but to defend the right of every website to be free from arbitrary and unwarranted judicial interference.IV. ADDITIONAL COMMENTS ABOUT RIPOFF REPORTS NON-REMOVAL POLICY
Some people have criticized Ripoff Reports non-removal policy, suggesting that it is immoral or unethical of us to refuse to remove material even when a court has found the statements are false. With all due respect, the people who express this view do not seem to fully understand the significance of these issues, so we wanted to take a moment to explain the reasons for our position.
Nearly everyone in this country knows that our court system is among the best in the world, and Ripoff Report shares that view. However, just like the human beings who staff them, courts are not perfect and they sometimes make mistakes. No honest person can deny this factsometimes our courts get it wrong. Sometimes our courts mistakenly allow the guilty to go free, and sometimes they mistakenly send innocent people to prison or even to death.
As good as our court system is, no one can deny that our courts are not always correct. Courts in this country have determined that OJ Simpson was innocent of murdering his wife and her friend. Courts have determined that Casey Anthony was innocent of murdering her two-year old daughter, Caylee, and then dumping her body in a Florida swamp. But mistakes by the courts do not always result in the guilty being freed. With the recent increase of DNA testing, lawyers from The Innocence Project
have exonerated nearly 300 wrongly-convicted individuals including many people sentenced to death for crimes they did not commit. Many even believe that the pro-death penalty attitude in the Texas courts
have almost certainly resulted in one or more innocent people being executed.
What is the point? Simpleour court system is an honorable institution which does its best to resolve disputes in a civilized manner, but like everyone else, the courts can and do make mistakes. For that reason, courts cannot dictate truth for the entire world.
In our country, courts are here to resolve disputes, not to dispense truth. For this reason, even when a court finds that a civil lawsuit is groundless or that a criminal defendant is innocent, this does not mean that records of the case are destroyed or that the public is prevented from hearing about the facts of the case. Indeed, after OJ Simpson and Casey Anthony were famously acquitted of their crimes, did that mean that every newspaper and every website in the world was prohibited from talking about the facts of their cases? Of course not.the public has a right to know about the allegations against the defendants, and if the allegations are proven to be false, then the media has an obligation to explain the outcome of the case. Under no circumstances would the public be prohibited from knowing about a case just because a defendant was acquitted or because the plaintiffs claims were dismissed for some reason.
With the advance of technology, many court systems make case files easily accessible online. Many businesses have filed frivolous lawsuits against Ripoff Report that contained false statements of fact. No court has ever ordered that the false complaint or even the false statements in the complaint be removed from the public records. Rather, the courts simply allow Ripoff Report to respond to the complaint and prove its case at our own expense. The courts model is virtually identical to that of Ripoff Report. Yet, we are sure that the Florida Court of Appeal does not find the court's model to be appalling. Neither do we. Not perfect, but not appalling.