This is the Transcript of the #WeddingMarket Chat on November 11, 2015 with Robert L. Schenk from Wedding Industry Law. The answers were made on Twitter so responses will appear different.
Rob Schenk is a trial attorney who represents wedding industry professionals involved in business disputes. After speaking with wedding pros over the years and discovering that many held misconceptions about the law, Rob created weddingindustrylaw.com in 2013, as an online resource of legal news and education. Rob’s expertise has been featured in Huffington Post Weddings, The Knot, Evolve Your Wedding Business, Above the Law, Wedding Industry Rescue, and The Span Plan, and he regularly speaks at event industry conventions nationwide on various legal topics. Rob is licensed to practice law in Georgia, Tennessee, Florida, California, and New York, and maintains principal offices in Atlanta, Georgia and Nashville, Tennessee.
Learn more about Rob Schenk at http://www.weddingindustrylaw.com
Q1: What is slander or defamation?
Robert L. Schenk: Defamation is a false statement that lowers the reputation of a person or business. Defamation this is spoken is slander. Written defamation is libel. You can learn more here about the differences if you need some more in-depth knowledge.
Q2: What can wedding pros do to avoid a bad review?
Robert L. Schenk: Nothing other than to do a good job at the event. To be clear, a TRUE statement is NOT defamation. So, the client’s fair statement about a crummy job is completely legal.
Q3: What the difference between defamation and free speech?
Robert L. Schenk: Free speech is speech that is generally not able to be censored or prevented by the government. Free speech does not include all speech. For example, revealing classified state secrets, copyright infringement. Fighting words, threats, sexual harassment in the workplace, and defamation are NOT protected speech. That’s why defamation may result in civil lawsuits against the defamer.
Q4: How do you eliminate disparaging and defamatory statements without resorting to litigation?
Robert L. Schenk: If the client is upset, ask “What Can I Do To Make This Right.” Generally lawsuits are not a result of the mess up but the result of how the wedding pro handles the mess up. However, a good idea is to bargain for silence AFTER the client has expressed concern or threatened a bad review.
Q5: Who is liable for defamatory online statements?
Robert L. Schenk: Any person that publishes or republishes a defamatory statement is liable for defamation with some exceptions. Major internet review sites are immune from defamation lawsuits.
Q6: Why are major online review sites protected from defamation claims?
Robert L. Schenk: They have lots of lobbyists. JK. It would be nearly impossible to have sites like Yelp or the Knot otherwise.
Q7: How hard is it to prove a defamatory case?
Robert L. Schenk: It depends on the case. But in my experience, these cases can be problematic.
Q8: What is a Non-Disparagement Clause?
Robert L. Schenk: It is an agreement between two parties that one or both will not publish statements that would disparage or hurt.
Q9 Can a wedding professional have a non-disparagement or no-review clause in their contract?
Robert L. Schenk: It depends on what State you are in. For example, California doesn’t allow them. Georgia does. But non-disparagement can be bargained for AFTER a contract is signed in all States.
Q10: What is the key difference between a defamatory statement and a disparaging statement?
Robert L. Schenk: Defamatory statement is a FALSE statement that damages. A disparaging statement is a TRUE statement that damages.
Q11: Are Non-Disparagement Clauses in Wedding Vendor Service Contracts Enforceable?
Robert L. Schenk: It depends on what State you are in. For example, California doesn’t allow them. Georgia does.
Q12: How do you win a defamation case?
Robert L. Schenk: You show the statement was false and that your reputation has been damaged by the statement.
Q13: If you can prove that statements are false can you request a retraction from the online publisher?
Robert L. Schenk: Some states require the victim request retraction prior to filing suit. In some, failure to heed request increases damages.
Q14: What are your thoughts with Periscoping the bride and groom and contract releases?
Robert L. Schenk: Periscoping would require same permissions as photos & video. Releases from clients, etc. Get it in writing in your service contract.
Q15: Can you share real examples of defamatory cases involved with Weddings?
Robert L. Schenk: There’s a case out of TX. Former clients told local news that wedding photographer was “holding photos hostage” for extra $. Among other accusations. Photographer sued the former clients. The client’s Yelp review and the news hit piece affected biz. Wedding photographer is asking for millions in damages based on loss of business. Photographer in that case has 1) contract language 2) emails 3) statements from clients that really helps her case. So it should be pretty interesting.
Q16: Can professional photographers have an exclusivity clause and how can this affect other wedding pros?
Robert L. Schenk: Yes. Most principal photographers have the exclusive right to capture event. An exclusive agreement with principal photographer will PREVENT other vendors from hiring pro photographers for set photos. So it is very important for vendors get written understanding from CLIENT that vendor photos do NOT interfere with principal. This issue has been all over the news lately. Work it out with client ahead of time, so the client can make sure they know what’s in their principal photographers contract.
@JulieAlbaugh Does a photographer’s exclusivity include not hiring a videographer?
Robert L. Schenk: Generally, no. Still photo exclusivity would NOT include videography. But it will depend on the wording of the particular contract, so always read them!
Q17: What would you like everyone to take away from this #weddingmarket chat?
Robert L. Schenk: Try to catch flies with honey. You don’t want the stress of a defamation lawsuit, or to be known as the vendor that sues clients.