Whistleblower: Daughter ranted; Mom has to pay

  • Article by: RANDY FURST , Star Tribune
  • Updated: June 20, 2011 - 3:30 PM

One judge called a contractor's work defective; another said posting was defamation.

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Kyong Kessler was mad about the pockmarked driveway that cost her $5,400; a Hennepin County judge agreed that the job was less than perfect and ordered the contractor to pay $440 in damages.

But when Kessler's daughter went online to blast the contractor's ethics and business practices, the company fought back and won a $2,000 judgment against Kessler for defamation.

Legal and media experts say the case illustrates the pitfalls that come with online communication, which has rapidly become one of the hottest areas in libel law.

"You can say the guy 'did x, y and z and I think that makes him a jerk,' as long as x, y and z are true statements," said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. "Small-business people, in particular, are very, very sensitive about their reputations. Vibrant debate is very useful and these websites can be useful to consumers, but if you state something false, you have to expect them to come back at you."

According to court documents, Kessler hired Midwest Concrete Services of Andover to install a new driveway and sidewalk at her split-level house in Coon Rapids. Kessler said that in addition to leaving pockmarks in the new driveway, Midwest broke part of a concrete step leading to the house.

Company owner Al Johnson said he offered to repair the work, but Kessler sued him in conciliation court, demanding $6,200 so she could install a new driveway and sidewalk. The judge said Kessler failed to demonstrate significant problems with the work, noting that the defects "can be remedied relatively easily."

Dissatisfied with the decision, Kessler appealed. Her daughter, Mary Kessler, decided to publicize the family's plight by going to Craigslist, the online classified advertising company.

In her posting, which she posted in a Craigslist section called "rants & raves," Mary Kessler accused Midwest of "poor workmanship" and refusing to "adequately" fix her defective driveway. She called Johnson an "unethical and unlawful businessman" and accused him of doing work without a proper license.

Johnson acknowledged that pockmarks covered about 1 percent of Kessler's driveway but he said he offered to fill them in.

"I would have done the repairs and moved on," Johnson said in an interview. "And they [the Kesslers] could not accept it."

Johnson said he didn't need a license to do the paving work in Kessler's driveway.

In 2010, the Minnesota Department of Labor and Industry fined Johnson and two of his companies $10,000 for operating without proper licenses and other violations. According to the order, Johnson's construction company "failed to provide written change orders, failed to comply with a correction order and performed in breach of contract." Records show $8,000 of the fine was stayed.

Johnson said he didn't know that he needed licenses for both companies.

Johnson said the online accusation that worried him the most was when Mary Kessler accused him of "fraud." He worried that potential customers would Google his name and find Kessler's tirade against his firm, so he hired a lawyer to get the statement removed from Craigslist. That effort took months. Johnson claims that the attack cost him thousands of dollars in lost business.

When the Kesslers failed to show up in court to defend themselves in January, a judge concluded that Mary Kessler's comments were false and defamatory and ordered her mother to pay $1,000 to Johnson and $1,000 to his company, plus court costs. Motions to hold a new trial were rejected.

"I would like to disclose more about this case, but I fear legal action," Mary Kessler said Friday. "The way Minnesota defamation laws are going, you are not allowed to say much."

Experts said Internet users can learn from such court judgments.

"There are a lot of places, like Craigslist, that do not engage in filtering content," says David Ardia, director of the Digital Media Law Project at Harvard University's Berkman Center for Internet & Society. "It is a little bit like giving someone a loaded gun and letting them use it as they will. Some people will use it responsibly and some people will get in trouble."

Jane Kirtley, who teaches media ethics and law at the University of Minnesota, said the $2,000 award shows that the judge was "trying to strike a balance between freedom of expression and the businessman's right to protect his reputation."

Kirtley said most Internet users take online comments "with a grain of salt" because they know they simply represent one person's opinion.

Staff Librarian John Wareham did research for this report. Randy Furst • 612-673-7382

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