This story involves a guy (don’t want to mention his name, but it is in the article) who purchased a clock from a lawyer, Elliot Miller, on eBay. After finding that the clock did not match the advertisement, he left the following comment: “Bad seller; he has the ethics of a used car salesman.” Elliot Miller responded by doing the only logical thing – sued the man for defamation. (And people wonder why no one likes lawyers.)
Defamation on the Internet is no different than defamation anywhere else. The same defenses apply. Two that seem relevant here are truth and opinion. Truth is the ultimate defense to defamation. If the statement is true, then there was no defamation. The feedback on eBay reflects the buyer’s experience with the seller. If the buyer can show that in his experience the statement is true, he would win. If I were on the jury, I would buy the truth defense. Opinion is also a defense. Feedback on eBay is viewed as and meant to be the buyer’s personal opinion. Opinions are not subject to liability. People have a First Amendment right to voice their opinion, regardless of how it makes the object of their opinion feel. Again, if I were on the jury, I would buy the opinion defense as well.
The other necessary requirement for defamation is damages. After this buyer’s negative feedback, there was another negative feedback left from a separate buyer. This left Elliot Miller with a feedback rating of 98.8%. Elliot Miller would need to show that this particular buyer’s negative feedback caused him real damages, and that people refused to buy from him because of this rating. I doubt he can prove any actual damages, let alone the $15,000 he is alleging.
So what is the problem here? Why the big deal? The buyer should win in court. Unfortunately, he started without a lawyer, got in over his head, hired a lawyer, spent $7,000 in attorney’s fees, ran out of money, lost his attorney, and is still in the midst of legal proceedings. All over a $44 time clock. There is a type of lawsuit known as SLAPP. These are lawsuits meant to prevent people from exercising their First Amendment rights by filing a lawsuit that will ultimately lose, but that will force the defendant into expensive litigation. Hmmm, that sounds familiar. Some states, such as California, have very strong anti-SLAPP statutes that ensure preliminary hearings to determine the validity of the claim and allow for attorney’s fees for victims of bad faith claims. Florida, where this case is being heard, has only narrow SLAPP protection and it doesn’t apply here. So this poor purchaser is stuck defending his opinions from a thin-skinned lawyer.
Based on Elliot Miller’s actions, I would never buy anything from him (emiller1313) on eBay. And I most definitely wouldn’t purchase his legal services. If someone asks for my opinion, it would be to never do any business with Elliot Miller. I hope that the publicity of this action will lead many to see how Elliot Miller conducts business (see the Streisand Effect) and that they, too, chose to not do business with Elliot Miller. The Internet doesn’t forget. Five years from now, people searching for a lawyer will see that Elliot Miller sued a man for a bad eBay rating. This will make them think long and hard about hiring Elliot Miller for legal services. I know I wouldn’t hire someone like Elliot Miller who sues their customer for negative feedback. (It makes me wonder what he would do to a difficult client?!)
Stephen Burch
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