In the US, it is almost universally established that BBB grades are opinion statements entitled to absolute privilege under the First Amendment of the Constitution. Some inroads on BBB liability have been made by attacking statements other than the rating. Specifically, in Caribbean Cruise Line, Inc. v. Better Business Bureau of Palm Beach County, Inc. d/b/a Better Business Bureau of Southeast Florida and the Caribbean, Case No. 4D13-3916, a trial court found that the BBB’s representations regarding systems and practices could be defamatory if the Plaintiff could prove the falsity of the statements.

On the other hand, in Canada, ratings seem to be the fair subject of a defamation suit. In Walsh Energy Inc. v. Better Business Bureau of Ottawa-Hull Incorporated, 2018 ONCA 383 (Hoy A.C.J.O., Huscroft and Paciocco JJ.A.), April 19, 2018, a Canadian appeals court found that the plain and ordinary meaning of a D- grade issued by the BBB to a business could be legqally defamatory. While the BBB ultimately prevailed on one of the defenses it asserted in the litigation, the Canadian court, unlike US courts, found that the plain and ordinary meaning of a D- rating was actionable.

While the Canadian model has no impact on the status of US consumer bureau defamation law, the distinction between Canadian law and US law is interesting especially for US plaintiffs that have been frustrated by the BBB’s opinion statement defense.

W Mason is an Partner with the law firm Fox Rothschild LLP. W practices in Fox Rothschild’s Litigation department in West Palm Beach, Florida. W has previously written on several issues pertaining to litigation involving consumer bureau defamation. W focuses his practice on commercial litigation throughout Florida, with an emphasis on litigation involving consumer bureaus and various Better Business Bureau affiliates. You can reach W at (561) 804-4432 or wmason@foxrothschild.com.