Court Finds 'Gripe Site' Is Protected Free Speech, Not Defamation

New York Law Journal/November 1, 2005
By Mark Fass

The contents of a New Jersey man's "gripe site" -- a 45-page Web site dedicated to the perceived misdeeds of his car insurer -- were protected free speech that did not constitute defamation, a Manhattan judge has ruled.

Penn Warranty Corp. alleged that Ronald DiGiovanni's site made eight libelous statements about its business, including that it is a "blatantly dishonest company" that has been "running scams," "committing fraud on a grand scale," and "ripping off its contract holders for quite a while."

Last week, Supreme Court Justice Judith J. Gische dismissed Penn Warranty's suit, upholding DiGiovanni's right to maintain the site. The site, however, has not operated since January 2004.

"The court holds that the cause of action for libel ... should be dismissed because the challenged speech is merely a statement of defendant's personal opinion about the quality of services provided by plaintiff company," Gische wrote in Penn Warranty Corp. v. DiGiovanni, 600659/04.

Penn Warranty provides service warranties for used cars. DiGiovanni agreed to a "standard" contract with the company for his GMC truck in May 2000 and filed a claim under the contract shortly thereafter.

Penn Warranty denied the claim, and DiGiovanni subsequently brought a small claims action against it in New Jersey. The two sides settled for $2,500.

DiGiovanni then created www.pennwarrantylitigation.com, the contested site.

Although Penn Warranty did not attach a copy of the contents of the now-defunct site to its complaint, its contents are not in dispute, according to the decision.

"There are some generally negative comments about the car service warranty industry, the auto insurance industry, and New Jersey judges," Gische wrote. "Most of the web site is devoted to the New Jersey small claims action... . Defendant offers conclusions about how plaintiff's answers to interrogatories in the New Jersey [action] prove Penn Warranty's pervasive deceptive business practices."

Penn Warranty subsequently filed the instant action, alleging among other things extortion, defamation and civil RICO violations.

DiGiovanni, representing himself, moved for summary judgment.

Gische granted the motion.

"Perhaps most compelling," she wrote, "is the fact that the web site, when viewed in its full context, reveals that defendant is a disgruntled consumer and that his statements reflect his personal opinion based upon his personal dealings with plaintiff. They are subjective expressions of consumer dissatisfaction [and] are not actionable because they are defendant's personal opinion."

Penn Warranty's attorney, John O. Fronce of Abrams, Gorelick, Friedman & Jacobson, called the decision one of first impression in New York.

"It was a close call, I thought," Fronce said. "It certainly was defamatory -- whether it's protected opinion or not is another question."

He added that his client is considering an appeal.

"Obviously, I'm pleased with the decision," DiGiovanni, a manufacturer of hot air balloons, said in an interview last week. "Judge Gische is a very bright and competent jurist. And I'm not just saying that because she ruled in my favor."