[Cite as Amaro v. DeMichael,
2024-Ohio-3290.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
R. JAMES AMARO, P.C. D/B/A JUDGES:
AMARO LAW FIRM : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Plaintiff-Appellant : Hon. Craig R. Baldwin, J.
:
-vs- :
: Case No. 2024 CA 00003
PATRICK DEMICHAEL, ET AL :
:
: OPINION
Defendants-Appellees
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of
Common Pleas, Case No. 23 CV0 569
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: August 28, 2024
APPEARANCES:
For Plaintiff-Appellant For Defendants-Appellees
NATHAN P. WOODWARD DAVID T. BALL
The Mine Law Firm 205 South Prospect Street
200 Park Avenue, Suite 200 Granville, OH 43023
Orange, OH 44122
Licking County, Case No. 2024 CA 00003 2
Gwin, P.J.
{¶1} Appellant appeals the December 5, 2023 judgment entry of the Licking
County Court of Common Pleas granting appellees’ Motion to Dismiss Pursuant to Civil
Rule 12(B)(6).
Facts & Procedural History
{¶2} On May 23, 2023, appellant R. James Amaro, P.C., d/b/a Amaro Law Firm,
filed a complaint against appellees Patrick and Ronald DeMichael for defamation,
invasion of privacy/false light, libel, and tortious interference with contracts and
prospective economic advantage. Appellees filed a Civil Rule 12(B)(6) motion to dismiss
the complaint.
{¶3} Appellant filed an amended complaint on July 11, 2023, and, after obtaining
leave from the trial court, a second amended complaint on August 2, 2023. The following
facts are adduced from the second amended complaint, and must be taken as true since
the trial court dismissed the complaint on a Civil Rule 12(B)(6) motion.
{¶4} Appellant is a law firm located in Houston, Texas, specializing in personal
injury. Appellant has amassed over 1,500 positive reviews to its office’s Google My
Business (“GMB”) listing. Prior to appellees’ reviews, appellant had a perfect 5-star rating
on GMB. Due to this perfect 5-star rating, appellant’s firm was ranked near the top of
Google search results for personal injury law firms. Appellant kept track of leads that
were generated from its placement in Google search results. GMB listings allow
consumers to find a business through a dedicated profile on Google Search and Google
Maps, and businesses with higher GMB ratings appear more prominently in Google
Search and Google Map results from keywords relevant to their industry.
Licking County, Case No. 2024 CA 00003 3
{¶5} Beginning in February 2022 and continuing through June of 2022, appellees
engaged in an attack intended to maliciously defame, harass, and destroy appellant’s
reputation by flooding appellant’s GMB page with fake reviews. In publishing the fake
reviews, appellees fraudulently concealed and misrepresented their identities by using
fake names to publish false narratives about negative experiences doing business with
appellant. Pursuant to Google’s Terms of Service, which appellees agreed to when
creating each individual Google user account, contributions “must be based on real
experiences and information … [a]nd deliberately fake content, copied or stolen photos,
off-topic reviews, defamatory language, personal attacks, and unnecessary or incorrect
content are all in violation of [Google’s] policy.” Further, “content should reflect [the user’s]
genuine experience at the location and should not be posted must to manipulate a place’s
ratings.” Finally, the Terms of Service state, “[d]on’t post fake content, don’t post the
same content multiple times, and don’t post content for the same place from multiple
accounts.” The fake reviews posted by appellees are designed and intended to
manipulate Google’s rating system for appellant’s business. The fake reviews falsely
purport to have been authored by actual clients of appellant and include false statements
that are specifically intended to destroy the public’s trust in appellant to provide ethical
and competent legal representation.
{¶6} Between February of 2022 and June of 2022, approximately 100 fake
reviews were left on appellant’s GMB page, each by a separate Google user account
bearing the name of an individual who has never been a client or potential client of
appellant. Appellant listed each of the fake reviews posted by appellees in its complaint.
The numbers next to the reviews correspond to the paragraph numbers contained in the
Licking County, Case No. 2024 CA 00003 4
complaint. The fake reviews to appellant’s GMB page are detailed in the complaint, as
follows:
(32) Three-star fake review under the fictitious name “Lukas Gotz” (account
formerly under the name Rochelle Henry) wherein the author falsely stated
they were “not given clear direction regarding the matter and never got any
updates with my case.”
(33) Three-star fake review under the fictitious name “Kelley Phillips” falsely
stating, “The communication was really poor. They did not provide follow
ups which is something that should be improved.”
(34) Three-star fake review under the fictitious name “Sandy Kaufmann”
(account formerly named “Joe Gilbert”) falsely stating, “People are
professional and knowledgeable. My only concern is that they never called
me back regarding my case. This is where they lack!”
(35) Three-star fake review under the fictitious name “Bessie Bradley,”
falsely stating, “I never expected such service. Thought they were good but
they never responded to me I needed them.”
(36) Three-star fake review under the fictitious name “Sara Fuller,” falsely
stating, “the communication was not good but got a nice result.”
(37) Three-star fake review under the fictitious name “Janet Phillips,” falsely
stating, “was satisfied with the case outcomes but never got proper follow-
ups from them!”
Licking County, Case No. 2024 CA 00003 5
(38) Three-star fake review under the fictitious name “Joann Nichols, falsely
stating “I don’t know what’s wrong with them. The communication is very
poor at this firm.”
(39) Three-star fake review under the fictitious name “Kenneth Lawrence,”
falsely stating, “very poor communication.”
(40) Three-star fake review under the fictitious name “Ueli Widmer,” falsely
stating, “My experience was just fine, but I never got any updates.”
(41) Three-star fake review under the fictitious name “Jennie Ruiz.”
(42) Three-star fake review under the fictitious name “Juan Silva.”
(44) Three-star fake review under the fictitious name “Ethel McCoy,” falsely
stating, “not at all concerned about communicating to me about the case.”
(45) Three-star fake review under the fictitious name “Wendy Harris,” falsely
stating, “did not get prompt responses.”
(46) Three-star fake review under the fictitious name “Angelica Ramirez,”
falsely stating, “the communication is so poor that I don’t know what is going
on with my case.”
(47) Three-star fake review under the fictitious name “Sylvie Marcotte,”
falsely stating, “communication is poor.”
(48) Three-star fake review under the fictitious name “Lewis Cooper,” falsely
stating, “took days to give me follow up about my case.”
(49) Three-star fake review under the fictitious name “Randy Pierce,” falsely
stating, “never called me back.”
Licking County, Case No. 2024 CA 00003 6
(50) Three-star fake review under the fictitious name “Geneva Moore,”
falsely stating, “communication was poor. No follow-up was done, which
needs to be addressed.”
(51) Three-star fake review under the fictitious name “Douglas Ray,” falsely
stating, “I attempted to contact them for follow-up information, but they were
unable to help.”
(52) Three-star fake review under the fictitious name “Georgia Wright,”
falsely stating, “communication was not up to the mark.”
(53) Three-star fake review under the fictitious name “Rosalie West,” falsely
stating, “did not answer when I needed them.”
(54) Three-star fake review under the fictitious name “Allen Brewer,” falsely
stating, “I have to call them to get the updates for my case.”
(55) Three-star fake review under the fictitious name “Colleen Griffin,”
falsely stating, “did not get any updates about my case.”
(56) Three-star fake review under the fictitious name “Alexis Gordon,”
falsely stating, “not easily available on call.”
(57) Three-star fake review under the fictitious name “Deanna Vasquez,”
falsely stating, “Poor communication hampered the process. They failed to
follow up, which is something that should be addressed.”
(58) Three-star fake review under the fictitious name “Sara Barrett,” falsely
stating, “One thing they lack was the communication. It was very poor.”
(59) Three-star fake review under the fictitious name “Karen Long,” falsely
stating, “I never got a satisfactory answer when I called them.”
Licking County, Case No. 2024 CA 00003 7
(60) Three-star fake review under the fictitious name “Cynthia Flores,”
falsely stating, “My only concern is that I never heard back from them
regarding my case. This is where they fall short!”
(61) Three-star fake review under the fictitious name “Jeanette Ward,”
falsely stating, “Poor communication hampered the process. Follow-ups
were not provided, which is something that needs to be addressed.”
(62) Three-star fake review under the fictitious name “Steven Jones,” falsely
stating, “I need to call them to get the latest information about my case. I
never heard from them!”
(63) Three-star fake review under the fictitious name “Belinda King,” falsely
stating, “There was poor communication on my part.”
(64) Three-star fake review under the fictitious name “Helen Foster,” falsely
stating, “communication was not good.”
(65) Three-star fake review under the fictitious name “Marion Harvey,”
falsely stating, “they never responded when I needed them.”
(66) Three-star fake review under the fictitious name “Mozell W.
Carmichael,” falsely stating, “they didn’t call me back again. I had to take
initiative.”
(67) Three-star fake review under the fictitious name “Lynda Miller,” falsely
stating, “To date, I have not received any follow ups from them despite my
attempts to contact them.”
Licking County, Case No. 2024 CA 00003 8
(68) Three-star fake review under the fictitious name “Valerie Baker,” falsely
stating, “I have never received a proper response from the law firm. Why is
that?”
(69) Three-star fake review under the fictitious name “George E. Harper,”
falsely stating, “I was happy with the results of the case, but they never
followed up.”
(70) Three-star fake review under the fictitious name “Johanna Williamson,”
falsely stating, “it was very difficult to communicate.”
(71) Three-star fake review under the fictitious name “Lindsey Hernandez,”
falsely stating, “communication was poor.”
(72) Three-star fake review under the fictitious name “Janis Evans,” falsely
stating, “I never received a satisfactory answer when I called them.”
(73) Three-star fake review under the fictitious name “Leo Cooper,” falsely
stating, “Poor communication hindered the process. A follow-up was not
provided, something that needs to be addressed.”
(74) Three-star fake review under the fictitious name “Michelle Harper,”
falsely stating, “they weren’t available when I needed them.”
(76) Three-star fake review under the fictitious name “Tapati Kasagara,”
falsely stating, “I haven’t heard back from them despite my attempts to
contact them.”
(77) Three-star fake review under the fictitious name “Wendy Warren,”
falsely stating, “they never followed up.”
Licking County, Case No. 2024 CA 00003 9
(78) Three-star fake review under the fictitious name “David R. Coleman,”
falsely stating, “I received a call from them, but they did not follow up. It is
my responsibility to follow up.”
(79) Three-star fake review under the fictitious name “Alexander Balfour,”
falsely stating, “The law firm has never responded to me properly. Why is
this?”
(80) Three-star fake review under the fictitious name “Nalini Boudnauth”
(account formerly named Kimberly Freund), falsely stating, “Although I have
attempted to contact them, I have not received any follow up.”
(81) Three-star fake review under the fictitious name “Walter J. Cormier,”
falsely stating, “I was pleased with the results of the case, but they did not
follow up.”
(82) Three-star fake review under the fictitious name “Rosalinda Vallo,”
falsely stating, “no follow-up was done.”
(83) Three-star fake review under the fictitious name “James,” falsely
stating, “There are knowledgeable legal professionals here.”
(84) Three-star fake review under the fictitious name “Bruce Maheu”
(account formerly named Kathleen R. Newell) falsely stating, “the
communication was not good.”
(85) Three-star fake review under the fictitious name “Tyrone McElyea,”
falsely stating, “they are difficult to reach when you need them.”
Licking County, Case No. 2024 CA 00003 10
(86) Three-star fake review under the fictitious name “Kerry Sayler,” falsely
stating, “They are sensitive to your needs. Their knowledge and efficiency
are impressive.”
(87) Three-star fake review under the fictitious name “Brian Smith,” falsely
stating, “My case does not seem to have received a clear answer from the
firm. There were no updates on my case!”
(88) Three-star fake review under the fictitious name “Gregory Erickson,”
falsely stating, “I am not able to get them to follow up despite my efforts.”
(89) Three-star fake review under the fictitious name “Virginia Schuster,”
falsely stating, “Their communication was not to my taste. My case was
resolved, but I did not receive any follow-ups.”
(90) Three-star fake review under the fictitious name “Misha Rothman,”
falsely stating, “I was dealing with a personal injury case and didn’t know
what to do.”
(91) Three-star fake review under the fictitious name “Max Newman,” falsely
stating, “They are the best attorneys in the region. Their professionalism
and expertise surprised me greatly. They’re incredibly lovely people that
went out of their way to assist me.”
(92) Three-star fake review under the fictitious name “Alan Page,” falsely
stating, “No answers to my questions were provided, but I appreciate their
efforts.”
Licking County, Case No. 2024 CA 00003 11
(93) Three-star fake review under the fictitious name “Brent Thompson”
(account formerly named Joe Lewis) falsely stating, “One thing I didn’t like
was the lack of communication.”
(94) Three-star fake review under the fictitious name “Deanna Holmes,”
falsely stating, “They completed the task for me, but they did not contact me
again, so I had to take action.”
(95) Three-star fake review under the fictitious name “Mercedes Payne,”
falsely stating, “I was hit by a drunk driver and didn’t know where to turn. I
found them online and they helped me get the best medical care and win
my case. I couldn’t have done it without them.”
(96) Three-star fake review under the fictitious name “A Google User”
(account formally Judith Johnson) falsely stating, “I was in a serious car
accident and these guys helped me get the money I deserved. I would
recommend them to anyone.”
(97) Three-star fake review under the fictitious name “Wendy Bates,” falsely
stating, “communication was poor.”
(98) Three-star fake review under the fictitious name “Aaron Kyser, “falsely
stating, “I’ve never received a satisfactory response from the law firm. I’m
not sure why!”
(99) Three-star fake review under the fictitious name “Isabel Acosta,” falsely
stating, “They provide quality legal services and have the experience to
handle any legal case. I would highly recommend them to anyone in need
of legal assistance.”
Licking County, Case No. 2024 CA 00003 12
(101) Three-star fake view under the fictitious name “Tracey Armstrong,”
falsely stating, “I never received a satisfactory response to my questions.”
(102) Three-star fake review under the fictitious name “Walz Blevins.”
(103) Three-star fake review under the fictitious name “Senapus Leroy,”
falsely stating, “It was not what I had anticipated. They were capable, but
they did not respond when I needed them.”
(104) Three-star fake review under the fictitious name “Sadie Williams.”
(105) Three-star fake review under the fictitious name, “Ashlee Stewart,”
falsely stating, “The law firm’s communication was abysmal. I’m not that
pleased!”
(106) Three-star fake review under the fictitious name, “Tia Ohman.”
(107) Three-star fake review under the fictitious name, “Edward R. Bailey,”
falsely stating, “They didn’t refer to us as family; instead, they just instructed
us to accept a little compensation. The level of communication was
inadequate. To find out what was going on, we had to contact. We were
told we’d be calling several times.”
(108) Three-star fake review under the fictitious name “Theun,” falsely
stating, “The entire team has no idea what is going on. They didn’t even
give me a call to let me know what was going on.”
(109) Three-star fake review under the fictitious name “Margaret Holland,”
falsely stating, “I tried contacting them for further details, but they were
unable to assist me. They never called me back.”
Licking County, Case No. 2024 CA 00003 13
(110) Three-star fake review under the fictitious name “Ivan L. Crane,”
falsely stating, “I attempted to call them for follow-up information, but they
were unable to assist me.”
(111) Three-star fake review under the fictitious name “Flora Sanchez,”
falsely stating, “I need to call them to acquire the latest information on my
case. They phoned me back!”
(112) Three-star fake review under the fictitious name “Man E. Ortiz,” falsely
stating, “they are not readily available when needed.”
(113) Three-star fake review under the fictitious name “Bonnie McDonald,”
falsely stating, “My experience was satisfactory because I received no
updates.”
(114) Three-star fake review under the fictitious name “Daisy Roberts,”
falsely stating, “I did not receive timely response.”
(115) Three-star fake review under the fictitious name “Alice Pierce,” falsely
stating, “Regardless of my attempts, I have yet to receive a response from
them.”
(116) Three-star fake review under the fictitious name “Lois Morgan,” falsely
stating, “I had no follow-up.”
(117) Three-star fake review under the fictitious name “Ginsburg Zimrman,”
falsely stating, “communication is lacking.”
(118) Three-star fake review under the fictitious name “Erin W. Henry,”
falsely stating, “I was never contacted again.”
Licking County, Case No. 2024 CA 00003 14
(119) Three-star fake review under the fictitious name “Clara Martin,”
falsely stating, “Despite the fact that they did not respond to any of my
questions, I appreciate their efforts.”
(120) Three-star fake review under the fictitious name “Tracy Cunningham,”
falsely stating, “Poor communication.”
(121) Three-star fake review under the fictitious name “John Fraher,” falsely
stating, “communication was lacking.”
(122) Three-star fake review under the fictitious name “Marlene Gomez.”
(123) Three-star fake review under the fictitious name “Abdool Hussain.”
(124) Three-star fake review under the fictitious name “Alyssa Holmes.”
(125) Three-star fake review under the fictitious name “Loma R. Harris,”
falsely stating, “I have no idea what is going on with my case because
communication was so bad.”
(126) Three-star fake review under the fictitious name “Lynda James,”
falsely stating, “Thank you for your assistance in relation to my accident.
When I called them, I never received a satisfactory response.”
(128) Three-star fake review under the fictitious name “Gloria Cruz.”
(129) Three-star fake review under the fictitious name “Lena Aubuchon,”
falsely stating, “The communication was lacking. There was no follow-up,
which needs to be resolved.”
(130) Three-star fake review under the fictitious name “Lynn Lane,” falsely
stating, “I simply haven’t received any updates on my case.”
Licking County, Case No. 2024 CA 00003 15
(131) Three-star fake review under the fictitious name “Alvin Miller,” falsely
stating, “They were good at first, but I didn’t get so much help later.”
(132) Three-star fake review under the fictitious name “Roy King,” falsely
stating, “I was happy with the case’s outcome, but they have never followed
up with me!”
(133) Three-star fake review under the fictitious name “Floria J. Prieto.”
(134) Three-star fake review under the fictitious name “Ellen M. Kier,” falsely
stating, “Thank you very much for coming. Your services are of the highest
caliber. Please make an effort to improve your communication skills.”
{¶7} The complaint avers appellant consulted its records and confirmed that
none of the names associated with the Google accounts identified in the complaint are
actual or potential clients of the firm. Appellant also avers in the complaint that: the
reviews are false because the individuals who created them were never clients or
potential clients of appellant’s firm; the fake reviews are manufactured to create the false
impression that there is widespread customer dissatisfaction with the services appellant
provides to its clients; the fake reviews lower appellant’s otherwise stellar reputation and
injure appellant in its profession and trade; the fake reviews were published close in time
to one another and were written in similar styles; many of the user accounts were created
close in time to one another; the fake reviews and their cumulative effect on appellant’s
GMB star rating have been viewed and read by numerous individuals who have visited
appellant’s GMB page, including clients and potential clients; and appellant sustained
damage as a result of the fake reviews, including a noticeable decrease in inquiries and
client sign ups since the fake reviews began being published.
Licking County, Case No. 2024 CA 00003 16
{¶8} User data produced by Google in response to a subpoena issued by
appellant indicated that an IP address used to post the negative reviews at issue was
assigned exclusively to the residence of appellees.
{¶9} Appellees filed a motion to dismiss the second amended complaint pursuant
to Civil Rule 12(B)(6) on August 7, 2023. Appellees argued the following: the defamation
claims must be dismissed because they fail to allege publication to an identifiable third
party; the defamation claims must be dismissed because the allegedly defamatory
statements were constitutionally protected statements of opinion; and the defamation per
quod claims must be dismissed because the complaint fails to allege special damages.
Finally, appellees contend the claims for invasion of privacy, trade libel, and tortious
interference with business relations must be dismissed because they are derivative of
appellant’s defamation claims.
{¶10} Appellant filed a memorandum in opposition to appellees’ motion to dismiss
on August 21, 2023. Appellees filed a reply brief on August 28, 2023.
{¶11} The trial court issued a judgment entry granting appellees’ motion to dismiss
on December 5, 2023. The trial court found appellees’ argument that a defamation
plaintiff must allege publication of the statement to an identifiable third-party to be not
well-taken, as the Ohio Supreme Court’s binding defamation standard does not require a
plaintiff to allege publication to an identifiable third party. The trial court then reviewed
whether the statements are constitutionally protected expressions of opinion, and found
as follows: a reasonable reader would not believe the statements have factual content;
a reasonable reader would believe these statements contain language that conveys an
opinion; a reasonable reader would not believe the statements in the reviews to have
Licking County, Case No. 2024 CA 00003 17
specific factual content and would instead believe the statements in the reviews to be
opinions; the general context of the statements are opinion, appear on a GMB page which
convey a message to the reader that they will be exposed to the personal opinions of the
public; the statements contain comments about communication and experience, which
are perceptions based upon appellees’ opinion; the general tenor of the GMB page is the
public’s opinion regarding appellant’s business; and the GMB page contains many
reviews of the public’s opinions on their thoughts of appellant’s business. Based upon
these factors and the totality of the circumstances, the trial court found the ordinary reader
would accept the statements as opinion and not as fact and thus, the trial court
determined the statements are protected opinion under the First Amendment.
{¶12} Finally, the trial court found that since the remainder of the counts (false
light invasion of privacy, trade libel, and tortious interference) are entirely derivative of
appellant’s defamation claims and the statements at issue are constitutionally protected
statements of opinion, those claims must also be dismissed.
{¶13} Appellant appeals the December 5, 2023 judgment entry of the Licking
County Court of Common Pleas, and assigns the following as error:
{¶14} “THE TRIAL COURT ERRED BY GRANTING DEFENDANTS’ MOTION TO
DISMISS PURSUANT TO OHIO RULE OF CIVIL PROCEDURE 12(B)(6).”
Standard of Review
{¶15} The trial court granted appellees’ Civil Rule 12(B)(6) motion to dismiss. Our
standard of review on a Civil Rule 12(B)(6) motion to dismiss is de novo. Dover Chem.
Corp. v. Dover, 2022-Ohio-2307. A motion to dismiss for failure to state a claim upon
which relief can be granted is procedural and tests the sufficiency of the complaint. State
Licking County, Case No. 2024 CA 00003 18
ex rel. Hanson v. Guernsey County Bd. of Commissioners,
65 Ohio St.3d 545,
605 N.E.2d
378 (1992). Under a de novo analysis, we must accept all factual allegations of the
complaint as true, and all reasonable inferences must be drawn in favor of the nonmoving
party. Byrd v. Faber,
57 Ohio St.3d 56,
565 N.E.2d 584 (1991). In order to dismiss a
complaint pursuant to Civil Rule 12(B)(6), it must appear beyond doubt that the plaintiff
can prove no set of facts in support of the claim that would entitle a plaintiff to relief. York
v. Ohio State Highway Patrol,
60 Ohio St.3d 143,
573 N.E.2d 1063 (1991).
I.
{¶16} The trial court granted appellees’ motion to dismiss the defamation claims
against them, and further dismissed the remainder of the claims against appellees
because they were derivative of the defamation claims.
{¶17} To establish defamation, the plaintiff must show: (1) a false statement of
fact was made; (2) the statement was defamatory; (3) the statement was published; (4)
the plaintiff suffered injury as a proximate result of the publication; and (5) the defendant
acted with the requisite degree of fault in publishing the statement. Am. Chem. Soc. v.
Leadscope, Inc., 2012-Ohio-4193.
{¶18} The expression of opinion is generally immune from liability under the Ohio
and U.S. Constitutions. Vail v. The Plain Dealer Publishing Co., 72 Ohio St.3d 279,
649
N.E.2d 182 (1995).
{¶19} Whether allegedly defamatory language is opinion or fact is a question of
law to be decided by the court. Scott v. News-Herald, 25 Ohio St.3d 243,
496 N.E.2d 699
(1986); Frigo v. UAW Local 549,
2005-Ohio-3981 (5th Dist.). To answer this question, a
court must determine whether a reasonable reader or hearer will perceive the statement
Licking County, Case No. 2024 CA 00003 19
as a fact or opinion. State ex rel. Paluf v. Feneli,
69 Ohio St.3d 138,
630 N.E.2d 708
(1994).
{¶20} In resolving whether an allegedly defamatory statement is protected
opinion, a court must consider the totality of the circumstances. Id. Consideration of the
totality of the circumstances involves at least four factors: (1) the specific language used;
(2) whether the statement is verifiable; (3) the general context of the statement; and (4)
the broader context in which the statement appeared. Scott v. News-Herald,
25 Ohio
St.3d 243,
496 N.E.2d 699 (1986). The analysis of these factors is not a bright-line test,
and the weight to be given to any one factor under this inquiry will vary depending upon
the circumstances of each case. Vail v. Plain Dealer Publishing Co.,
72 Ohio St.3d 279,
649 N.E.2d 182 (1995).
{¶21} In this case, there are 99 total fake reviews. In order to review the factors,
we find it necessary to break these reviews into several categories. The reviews
contained in paragraphs 41, 42, 102, 104, 106, 122, 123, 124, 128, and 133 are reviews
that contain only three-stars with no language or text included (collectively the “Star-Only
Reviews”). The reviews contained in paragraphs 83, 86, 91, 95, 96, 99, and 111 contain
only positive statements about appellant, which generally state that appellant “helped
them out” and were “knowledgeable legal professionals” (collectively the “Wholly Positive
Reviews”). The reviews contained in paragraphs 36, 38, 39, 47, 52, 58, 59, 63, 64, 70,
71, 84, 85, 97, 105, 110, 114, 117, 120, and 121 are reviews primarily describing poor or
difficult communication with appellant, utilizing language such as “poor communication,”
“communication not good,” “no good answer,” “difficult to communicate,” “no timely
response” (collectively the “Poor Communication Reviews”). The reviews in paragraphs
Licking County, Case No. 2024 CA 00003 20
90, 125, 126, 131, and 134 utilize subjective language such as “poor communication,” but
they also specifically contain language indicating the reviewer is an actual or potential
client of appellant, such as “dealing with personal injury case,” “no idea what is going on
with case,” “called about accident,” and “services high caliber, but need to improve
communication” (collectively the “Client Language Reviews”). Finally, the reviews
contained in paragraphs 32, 33, 34, 35, 37, 40, 44, 45, 46, 48, 49, 50, 51, 53, 54, 55, 56,
57, 60, 61, 62, 65, 66, 67, 68, 69, 72, 73, 74, 76, 77, 78, 79, 80, 81, 82, 87, 88, 89, 92,
93, 94, 98, 101, 103, 107, 108, 109, 112, 113, 115, 116, 118, 119, 129, 130, and 132, are
reviews which contain language such as “no follow-up,” “never called me back,” “never
updated me,” “never responded,” “no communication,” “did not answer call” (collectively
the “No Communication Reviews”). Some, but not all, of the No Communication Reviews
contain specific language regarding the reviewer’s “case,” “experience,” “outcome,” “the
task,” and “the process.”
Specific Language Used
{¶22} To determine whether a reasonable reader or hearer will perceive the
statement as fact or opinion, courts must first look at the specific language used, focusing
on how a reasonable reader would understand the statements. Vail v. The Plain Dealer
Publishing Co., 72 Ohio St.3d 279 (1995). We must examine the common usage or
meaning of the allegedly defamatory words themselves and determine whether the
statement has a precise meaning, and thus is likely to give rise to clear factual
implications. Wampler v. Higgins,
2001-Ohio-1293. A reader is less likely to infer facts
from an indefinite or ambiguous statement than one with a commonly understood
Licking County, Case No. 2024 CA 00003 21
meaning.
Id. In general, more specific language weighs in favor of actionability.
Hartman v. Kerch,
2023-Ohio-1972 (8th Dist).
{¶23} In this case, the Star-Only Reviews contain no specific language. In both
the Wholly Positive Reviews and the Poor Communication Reviews, the statements do
not have any readily ascertainable meaning and are ambiguous, because what
constitutes “poor communication” and a “knowledgeable legal professional” can have
various interpretations and can vary from reader to reader. Accordingly, for these three
categories of reviews, the nature of the specific language weighs in favor of a
determination that they express non-actionable opinion.
{¶24} However, both the Client Language Reviews and the No Communication
Reviews contain specific and unambiguous statements. Whether a law firm called or did
not call someone, followed-up or did not follow up with someone, and whether a reviewer
had a case with appellant each have a commonly understood meaning. The language in
these reviews is not so hyperbolic so as to undermine the reader’s impression that the
reviews allege appellant did not return calls, follow up, or were a client of appellant.
Accordingly, for these two categories of reviews, the nature of the specific language
weighs in favor of actionability.
Whether the Statements are Verifiable
{¶25} Courts next look to whether the statements are verifiable, and determine
whether the statements are objectively capable of proof or disproof. Wampler v. Higgins,
2001-Ohio-1293. If the statement implies the defendant has first-hand knowledge that
substantiates the opinions, it is more likely a statement of fact. Hartman v. Kerch, 2023-
Licking County, Case No. 2024 CA 00003 22
Ohio-1972 (8th Dist). A statement that is capable or proof is disproof weighs in favor of
actionability.
Id.
{¶26} As to the Star-Only Reviews, the Wholly Positive Reviews, and the Poor
Communication reviews, we find their lack of verifiability weighs against actionability.
Whether a legal professional is “knowledgeable” or whether communication was “poor”
reflect subjective impressions that are not capable of being verified. What constitutes
“poor” communication and what constitutes whether someone is “knowledgeable,” varies
from person to person.
{¶27} On the other hand, we find the Client Language Reviews and the No
Communication Reviews contain statements that are capable of proof or disproof; thus,
this factor as to those reviews weighs in favor of actionability. With regard to the No
Communication Reviews, it can be proved true or false as to whether appellant returned
an alleged phone call, whether they did or did not provide an update, whether they did or
did not follow-up with a particular person, whether an alleged call was answered, or
whether they communicated with the reviewer at all.
{¶28} Further, in some of the No Communication Reviews, there are additional
statements indicating the reviewer is an actual or potential client of appellant. These are
statements that can be verified, such as whether the reviewer did or did not have a case
with appellant, whether the reviewer did or did not have an “experience” with appellant,
whether the reviewer did or did not request appellant complete a “task,” whether the
reviewer did or did not have an “outcome,” and whether the reviewer did not or did not
have any sort of “process” with appellant. The Client Language Reviews utilize subjective
language such as “poor communication,” but they also contain language specifically
Licking County, Case No. 2024 CA 00003 23
indicating the reviewer is an actual or potential client of appellant such as the words
“case,” “accident,” or “services.” In these select No Communication Reviews and in all of
the Client Language Reviews, the statements describe fictitious interactions or
experiences between appellant and potential or actual clients. They are readily capable
of being proven true or false by determining whether the reviewer was an actual or
potential client that attempted to communicate with appellant about legal services. See
Romeo & Juliette Laser Hair Removal, Inc. v. Assara I LLC, 2016 WL 815205 (S.D.N.Y)
(series of negative comments about the plaintiff’s business on Yelp from fictitious
anonymous users detailing fictitious treatments are readily capable of being proved true
or false). When a review contains specific statements capable of being proved true or
false in explanation for a negative online review or rating, these statements can be
grounds for a defamation claim. See North Atlanta Golf Operations, LLC v. Ward,
363
Ga.App. 259 (2022).
{¶29} Accordingly, this factor weighs in favor of actionability for the No
Communication Reviews and the Client Language Reviews, but against actionability for
the Star-Only Reviews, the Wholly Positive Reviews, and the Poor Communication
Reviews.
General Context of Statements
{¶30} The third prong requires courts look to the context in which the statements
at issue appear. Wampler v. Higgins, 2001-Ohio-1293. A court should “examine more
than simply the alleged defamatory statements in isolation, because the language
surrounding the averred defamatory remarks may place the reasonable reader on notice
that what is being read is the opinion of the writer.”
Id.
Licking County, Case No. 2024 CA 00003 24
{¶31} The general tenor of the reviews is that they are posted in an online forum,
purporting to be a neutral representation of the reviewer’s experience. There is a
collection of fake reviews, ninety-nine in total, each containing a three-star review, and
each purporting to have been submitted by a different reviewer. Other than the Star-Only
Reviews, each review follows a similar pattern in terms of length and substance. All of
these fake reviews were submitted in a relatively short period of time, between February
and June of 2022. The collection of reviews as a whole suggest that each of the reviews
was authored by someone who was a client or potential client of appellant. A reasonable
reader would believe the reviewers had actual experiences with the firm, and the
collection of negative reviews were premised on first-hand information. Accordingly, we
find this factor weighs in favor of actionability for all of the reviews.
Broad Context in which Statements Appear
{¶32} Lastly, a Court must consider the broader context of the allegedly
defamatory remarks because different types of writing have varying social conventions
which “signal to the reader the likelihood of a statement being either fact or opinion.” Old
Dominion Branch No. 496, Nat’l Assn. of Letter Carriers, AFL-CIO v. Austin, 418 U.S. 264
(1974).
{¶33} To evaluate a statement’s broader context, we must examine where the
statement is placed, and how that would influence the reader’s viewpoint on the question
of fact or opinion. Scott v. News-Herald, 25 Ohio St.3d 243 (1986).
{¶34} In this case, all of the reviews appear on the Internet, specifically on
appellant’s GMB page. The Internet generally promotes a more relaxed type of
communication. While very generalized comments or reviews on the Internet that lack
Licking County, Case No. 2024 CA 00003 25
specificity may signal to a reader there is no factual basis for the review, specifics may
signal the opposite. See Bentley Reserve L.P. v. Papaliolios, 218 Cal.App. 4th 418
(2013).
{¶35} Appellees contend that all statements posted on a GMB or Google review
page are protected opinion because it is an online review platform designed for reviewers
to give their opinion. We disagree with this argument. To accept this assertion would
negate the four-prong “totality of the circumstances” test, and would essentially make the
“broad context” factor the sole determinative factor as to whether a statement was
protected opinion. Rather, we find the “totality of the circumstances” test must still be
utilized, no matter which forum the review is posted on or through, whether print or digital.
Additionally, we must accept as true appellant’s assertion in the complaint that, pursuant
to Google policy, contributions and content “must be based on real experiences” and
“should reflect the user’s genuine experience at the location and should not be posted to
manipulate a place’s rating.”
{¶36} We find the primary cases cited by appellees to be distinguishable from the
instant case. In Abboud v. Khairaliah, 2021 WL 3163667 (2nd Dist. California), the court
held that simply because a reasonable reader could infer the reviewer was a client is not
enough to convert subjective judgments such as “rude,” “unprofessional,” and “had a bad
experience” from protected opinion to actionable statements, and because there were no
statements about the fake reviewer’s alleged experience with the plaintiff’s legal services
that could be proven true or false, the review was not actionable. The Court found that a
single negative review posted on a Google forum open to the public which expressed only
generalized, subjective judgments and included hyperbole, was protected opinion.
Id. In
Licking County, Case No. 2024 CA 00003 26
this case, both the No Communication Reviews and the Client Language Reviews
(totaling over sixty reviews) are not subjective statements or judgments, but are
statements about the fake reviewers’ experience with appellant’s legal services that can
be proven true or false. In fact, the Abboud court specifically holds that fake reviews can
expose the speaker to defamation liability when they contain verifiably false statements
about the business’ practices, not solely the fake reviewer’s subjective judgment about
the business.
Id. That is exactly what occurred in this case, i.e., the No Communication
Reviews and Client Language Review fake reviews contain verifiably false statements
about the law firm’s practices, such as unreturned phone calls and no follow-ups. Finally,
the Court in Abboud noted that one fake review “implies one single dissatisfied client, not
that the plaintiff regularly fails to adequately represent clients’ interests or engaged in any
specific misconduct one would expect a lawyer not to commit.”
Id. In this case, the large
number of fake reviews implies a large volume of dissatisfied clients and implies appellant
regularly failed to adequately represent their clients’ interests.
{¶37} In Law Offices of David Freydin, P.C. v. Chambers, 24 F.4th 1122 (7th Cir.
2022), the Court found comments posted on a law firm’s social media site were not
actionable. The primary reason why the comments were not actionable was because the
comments did not relate to the legal services of the plaintiff. Rather, they dealt with and
responded to negative comments the attorney-plaintiff had made about Ukraine. The
Court found the comments were not actionable because none of the statements could be
objectively verified as true or false; rather, they were “short reviews [that] did not purport
to provide any factual foundation and were clearly meant to expression of the opinions of
the defendants in response to plaintiff’s insults to Ukraine.”
Id. While appellees cite the
Licking County, Case No. 2024 CA 00003 27
portion of the case that states comments are not actionable merely because the reviewer
did not have a direct consumer relationship with the plaintiff, the Court specifically also
added the following line to that statement, “assuming the three [other] factors did not
indicate otherwise.” Here, with regard to the No Communication and Client Language
Reviews, the three other factors do indicate otherwise (i.e., they specifically indicate the
reviewer had a direct consumer relationship with the plaintiff and contain comments that
directly relate to the alleged legal services of plaintiff that can be objectively verified as
true or false).
{¶38} Spencer v. Glover, 397 P.3d 780 (2017) is also distinguishable from the
instant case because: (1) the negative online review was written by an actual client and
(2) the statements were subjective and were not capable of objective verification (“worst
ever,” “had to fire him after I gave him a chance”). Finally, the Quality Overhead Door,
Inc. v. LaPoint Discount Auto Parts, Ltd. case,
2021 Ohio Misc. LEXIS 864, is a common
pleas court case that is not binding upon this Court. It is also factually distinguishable
because the defendant in the case was an actual client of the plaintiff, the language in
the review was subjective, and there was only one negative review posted on a Google
site.
{¶39} We find that, due to the placement on the GMB page and the more general
and subjective language used, this factor weighs against actionability as to the Star-Only
Reviews, the Wholly Positive Reviews, and the Poor Communication Reviews. However,
the very specific and objective language used in the No Communication Reviews and the
Client Language Reviews, in combination with their placement on the GMB page, signals
to the reader there is a factual basis for the reviews. These reviews are factually specific
Licking County, Case No. 2024 CA 00003 28
and contain statements placed on a GMB review site that could reasonably be understood
as conveying provable facts and meant to be used by prospective clients to evaluate
appellant as a law firm. Accordingly, this factor weighs in favor of actionability as to those
reviews.
Conclusion
{¶40} Considering the factors, we find, based upon the totality of the
circumstances, the Star-Only Reviews, the Wholly Positive Reviews, and the Poor
Communication Reviews are not actionable because they are protected opinion.
{¶41} Upon our de novo review, we find all four factors indicate the No
Communication Reviews and the Client Language Reviews are not protected opinion.
Because we must accept all of the allegations in appellant’s complaint as true, we find,
as to the No Communication Reviews and the Client Language Reviews, appellees have
created and posted false reviews that contain statements describing a fictitious lack of
follow-up, a fictitious lack of communication, or a fictitious client relationship, that are all
readily capable of being proved true or false.
{¶42} Accordingly, based upon the totality of the circumstances, the statements
at issue (No Communication Reviews and Client Language Reviews) are not protected
opinion. See Romeo & Juliette Laser Hair Removal, Inc. v. Assara I LLC, 2016 WL
815205 (S.D.N.Y); RingCentral, Inc. v. Nextivia, Inc.,
2021 WL 2476879 (N.D. California)
(85 fake negative reviews accusing plaintiff of providing poor services was not protected
opinion); ZL Technologies v. DOES 1-7,
13 Cal.App.5th 603 (2017) (1st Dist.) (each
review listed positive points, but also included specific factual assertions capable of being
proved true or false, so they are actionable); Lowell v. Wright,
369 Or. 806 (2022)
Licking County, Case No. 2024 CA 00003 29
(negative google review not protected opinion when comments are factual matters with
truth values); Thibodeaux v. Starx Investment Holdings, Inc.,
2021 WL 4927417 (Texas)
(reviews posted on websites alleging “never received a phone call” are verifiable
statements of fact, not protected opinion); The Fireworks Restoration Co., LLC v. Hosto,
371 S.W.3d 83 (E.D. Missouri) (fabricated customer reviews posted on Google are not
protected opinion).
{¶43} We further note that while the Star-Only Reviews, Wholly Positive Reviews,
and Poor Communication Reviews may not be separately actionable, they are relevant
evidence to demonstrate appellees’ pattern of conduct, to demonstrate the systematic
way in which appellees posted or constructed the reviews, and to demonstrate the large
volume of reviews allegedly attributable to appellees in a short time span.
{¶44} The trial court dismissed appellant’s claims for invasion of privacy/false
light, libel, and tortious interference based upon the fact these claims are entirely
derivative of the defamation claims. Due to our determination that the trial court
committed error in finding all of the statements at issue protected opinion, we find the trial
court committed error in dismissing the balance of appellant’s claims.
Licking County, Case No. 2024 CA 00003 30
{¶45} Based upon the foregoing, appellant’s assignment of error is sustained.
The December 5, 2023 judgment entry of the Licking County Court of Common Pleas is
reversed and remanded for proceedings consistent with this opinion.
By Gwin, P.J.,
Hoffman, J., and
Baldwin, J., concur
