Defamation per se in relation to business operations; MCL 600.2911(1) & (2)(a); Henkel v Schaub; Heritage Optical Ctr, Inc v Levine; Croton v Gillis; Exemplary damages; False-light invasion of privacy (FLIOP); Patton v Royal Indus, Inc (CA App)

The court held that plaintiffs-Ava Cetera, Julian Cetera, and Cetera Photography (collectively “Cetera”) failed to state a claim of defamation per se, exemplary damages, or FLIOP. The case involved defendant-Mileto entering a contract with Certa as her photographer and changing the date. “After some discussion of alternative dates that ultimately were not workable, the parties agreed to terminate their agreement, and Cetera” provided a partial refund to Mileto. Shortly thereafter, Mileto posted a review of Cetera’s services both on Facebook and on a website. Cetera’s attorney requested that Mileto withdraw the “defamatory posts.” Mileto edited the review but otherwise refused to withdraw the posts. Cetera alleged defamation per se, exemplary damages, and FLIOP. The court concluded that there simply was “no basis in statute or binding caselaw to support Cetera’s stance that false and defamatory statements about one’s business constitute defamation per se.” It rejected the “application of Henkel, Heritage Optical, and Croton to override the plain and unambiguous language of MCL 600.2911(1) and (2)(a). Resort to defamation per se is only available when statements impute the commission of a crime or the lack of chastity.” Also, because there was no defamation per se and Cetera did “not argue that it can show actual damages or special harm to its photography business, there can be no exemplary damages.” Finally, Cetera’s case simply did “not fit a cause of action for FLIOP. The circumstances did not involve Cetera’s right to privacy or concern the need to protect Cetera’s privacy.” The court found particularly persuasive an older case from California (Patton) where the plaintiffs pursued, in part, a FLIOP claim. Here, Mileto’s “postings concerned Cetera’s public business operations; there was nothing of a personal and private nature in the postings.” The court failed “to see how complaints regarding the manner in which Cetera conducted its business, even if false and unreasonable, had any relationship to the private lives of Ava or Julian Cetera.” It concluded that this was “not a case implicating the right to privacy. Moreover, we hold as a matter of law that the postings cannot be characterized as being highly objectionable, especially considering that they did not concern anyone’s private life.” Affirmed.