Sometimes, things happen in the wedding photography business that not only immediately grab your attention but will make you scream at the top of your lungs, possibly give you a cold sweat and definitely question why anyone would choose to be a wedding photographer. Adverse client altercations that get publicized happen to be one of those things that not only can totally defeat your creative sensibilities, but attract the most negative online publicity and unsolicited “expert opinions” that can completely damage your reputation. You may remember hearing about one of these widely publicized situations last year – the photographer who got absolutely torched online because she charged the clients for an album cover and held their images hostage until they paid. You may be surprised to hear this story is still ongoing and has been working its way thru the court system. You may be even more surprised to learn none of what was publicized was actually factual and it seems that it was manufactured to garner attention to the clients. If you haven’t heard or don’t remember, let me say it’s now a very important story to pay attention t0. Regardless of your occupation, the overwhelming damage caused to a well known and highly respected photographer and the potential penalties the clients now face as a result of their defamatory actions are something every business should be aware of.
In January 2015, an online firestorm erupted between wedding clients Neely & Andrew Moldovan and wedding photographer Andrea Polito with Andrea Polito Photography (APP) based in Dallas Texas. To summarize what happened, the Moldovans took a basic misunderstanding of a deliverable item (specifically their wedding album cover which they had been informed, multiple times, had to be purchased afterwards) and instead of talking with the photographer, used social media and local news channels to not only demonize Andrea, but to relish in the ashes of her demise – all over $125. However, they didn’t stop there. To sensationalize the story even more, they made numerous false accusations over social media and utilized local news channel (DFW NBC 5) to further spread their story. To name a few of the false statements made: APP sent two photographers the client had never met (and never mentioning they had knowingly contracted for two associate photographers, not Andrea herself), that APP refused to give them their wedding images (which was clearly stated in the contract and numerous times over email the photos would be released upon completion of the album), Andrea never responded to their emails (both Andrea and her studio manager were in constant contact) and many other outright falsities. What happened as a result of the the Moldovan’s public disparagement was nothing short of disturbing for any small business owner; not only the overwhelming emotional & financial distress this type of widespread smear campaign can wreak on a small business, but the threat to the existence of the business itself. The end result of their actions was Andrea and APP suffering an insurmountable level of online backlash, threats, lost business and left her with a reputation that was all but impossible to repair. The story, which was actively driven and publicized by the Moldovans, appeared in the UK’s Daily Mail, DFW NBC 5 and so many online blogs & websites it’s impossible to list them here.
You can find the original report from the NBC DFW news channel here and their follow up to the story here. Andrea Polito responded with an open letter you can read on her website.
Let’s look at a few key issues first:
- APP stated several times in emails to the Moldovans and during the initial consultation the album cover would be purchased separately.
- Per the APP contract and several emails to the clients, the Moldovans were told the digital images will be delivered to them once the album process had been completed.
- Neely & Andrew Moldovan reached out to several local news stations to “shop their story” via twitter despite having constant communication with APP.
- DFW NBC 5 news station reporter, Scott Gordon, paraphrased a statement from the Moldovans during their interview and then used it as fact in a future interview (specifically that APP was “holding the images hostage”) when interviewing a local wedding planner about the issue.
- The DFW NBC news story withheld an email statement given by APP in response to the story, omitting crucial details (showing APP was adhering to the contract which the Moldovans signed) and only showing the very last sentence from her email “we strive to give the best customer service” which falsely portrayed APP as an antagonist because it supported the angle on their story.
- The DFW NBC reporter Scott Gordon, chose to ignore evidence sent by APP that showed she was acting in full compliance of her contract in his news segments.
- The Moldovans publicly made several false statements: “cheated,” “scammed,” and “blatantly stole money while holding pictures ransom and then adding on extra fees that weren’t in [the] original contract”and APP wanted them to “to pay several hundred dollars more before [she would] provide [the Moldovans’] album or give [them their] pictures on a DVD.” which further damaged the reputation of APP through social media as well as posted a screenshot of the NBC interview with text saying “justice is served”.
- Neely Moldovan spoke with her wedding venue, a business where APP had a very strong referral base, and blatantly accused APP of withholding their images and demanding more money to produce the wedding album. All of these statements being only partially accurate and absolutely damaging. The end result was APP was removed from the vendor list of the venue causing a great financial loss to APP.
- On January 14th. 2015, Andrea emailed the Moldovans with an offer to go ahead with the order of the album, once they picked an album cover. She had also previously emailed them with an offer to release to digital images once they approved their album (advancing the delivery date from the contractually agreed to album delivery date). Ironically, the NBC News channel had just finished taping their piece on that day. Regardless, Neely Moldovan responded by asking for clarification if the cover was now free but there was no mention of the TV news station interview because they “preferred the surprise”. Andrea later found out that Neely had already posted a photo to Instagram of the news crew with the caption “no big deal, NBC in our apartment”.
One very troubling fact of this case that wasn’t widely reported is the bride is a “professional blogger” and compensated based on traffic statistics to her website. As you can imagine, when this story went viral, the traffic to her blog exploded. So while it remains to be seen if there was a monetary incentive for the defamation of APP, it’s concerning once you hear the facts of how everything happened and how even once their demands were met (in Andrea’s email stating she would go ahead with the album order, even though it was outside of the contractually agreed to stipulations), they continued with pursuing the news story. In other words, this all smells like a couple of fame seekers looking to cash in on their 5 minutes of fame.
After facing enormous backlash online and losing hundreds of thousands of dollars in potential business due to the bad press and online reviews, APP filed a disparagement lawsuit against the Moldovans on March 18th, 2015. Specifically, the lawsuit stipulates Defamation, Defamation per se (statements which are defamatory on their face), Business Disparagement, Tortuious Interference with Prospective Contracts and civil conspiracy. That’s right, conspiracy. What happened here goes far, FAR beyond what any reasonable person or people would do to solve a disagreement over a $125 album cover. Here are a few screenshots from what Andrea faced online:
Where Andrea Polito is now
The defendants (Moldovans) attorney filed a motion to dismiss the claims in the lower court for the above lawsuit which AP and APP won. The Moldovans then took their case to the Appellate court in an effort to get it overturned. On August 2nd, 2016, Andrea Polito won a huge opinion from the 5th District Appellate Court in Dallas. The appeals court found that, in short, the Moldovans willfully and falsely disparaged Andrea Polito both by their statements and re-publishing of false statements made by others. They also committed tortious contractual interference of potential contracts by defaming her to the venue where their wedding was held and defaming her business. The appeals court issued a very strongly worded judgement against the actions of the Moldovans. Not only did they deny the motion from the Moldovans attorney to dismiss the case, but ruled their actions do not offer safe harbor under the anti-SLAPP laws in Texas (which are some of the strongest in the country). This clears the road for APP to sue for per se defamation case in court (which is a higher level of defamation then per quod and allows for her to seek not only actual damages, but punitive damages as well) in the lower court.
I implore you to read the full appeals court ruling here: http://law.justia.com/cases/texas/fifth-court-of-appeals/2016/05-15-01052-cv.html
At this point Andrea and APP are waiting for a new court date to be set as the Appellate court decision to throw out the motion to dismiss has cleared the way for the lawsuit to proceed. The original cap of $1 million dollars no longer applies and the court can choose to award any monetary amount for punitive damages.
Why you should care
So, what’s so important about this and why should you care? Having been through a few similar challenges over the years with both difficult clients and employees myself, the appeals court decision serves as a sound reminder that while free speech is protected, making false or even partially true statements, or re-publishing statements you know to be false can land you in some serious legal hot water with serious financial repercussions. While most photographers (and any business for that matter) will likely have an unhappy client at some point, that does not mean the client can try to “destroy” your business by making false claims or accusations. As her attorney stated, “freedom of speech is not freedom from consequences”.
The sheer enormity of the financial and emotional toll this has inflicted on APP is not only difficult to put into words, it shakes me to the core considering it seems this entire scenario was perpetuated by the apparent greed of the Moldovans in a chase for fame and glory. Sadly, no lawsuit or legal team can repair the damage to her business or her personal reputation. So a business that took over a decade to build and gave both employment and paychecks to 10 people, was literally destroyed in a matter of days. While there will always be clients or even potential clients who feel slighted and want to “settle the score” through the ever elusive “viral” story, it’s difficult to watch this happen and it should leave you absolutely gutted that over a misunderstanding of $125, the clients and media felt it was okay to absolutely torch a business. The problem with “viral” is that normal, or even “frustrating” events will never go viral. It’s only the extraordinary, over the top actions of people or businesses that can ring that special bell to make a story go ’round the world. With our headline driven society, the actual story almost always gets lost in the details because, let’s face it, they involve normal and boring facts which hold little interest to the masses. Had DFW NBC’s Scott Gordon chosen to tell both sides of the story, this would have never been news. In fact, I believe that it wouldn’t have even aired because the actual events that are coming to light in court documents wouldn’t have merited a story. It’s a mere misunderstanding or, at worst, an unhappy client. However, add “wedding” into it and it stirs emotion, then pour in a dash of “heartbroken newlyweds” and a business who wants to bilk their clients of every dollar, now you are getting somewhere. Finally stir in a couple who wants the media attention and now you have something worth promoting. I remember when I first watched this story, the one from DFW NBC, I was upset at APP because, as it was told, APP was a completely shady company with divisive billing practices. However, as I’ve done research for this story and learned how APP handled themselves, I became ashamed of myself for believing the hype and realized that APP did what most businesses do, they structured their business in a way that works for them and they followed their contract. So what we have here is a client who didn’t like what they signed then tried to use the media to get their way.
While the Moldovans may have gotten their wish for fame, they are now facing the very real threat of being on the wrong end of a lawsuit that has a potential of ending with at least 6 zeros.
A new beginning
As you can imagine, booking weddings after this type of exposure is impossible. However Andrea, as you may imagine, is not one to just roll over. These days she’s shooting and working with high profile commercial clients on their branding and image and has left the wedding industry far behind. She’s in the final stages of finalizing a book which not only talks about what happened and how she dealt with the social shaming, but how she not only kept her head above water during a very difficult time. If that wasn’t enough she also has a few speaking engagements lined up to discuss how social shaming has affected her and how to move forward.
Her goal, through all of this, is to finish the lawsuit which will hopefully set both a precedent and case law which will benefit every small business in how they can handle defamatory actions, social shaming and out of control clients. Having accumulated over 100K in legal fees so far (it’s not over yet), the emotional and financial toll of this entire case cannot be overstated and we should all pay attention to not only the deplorable actions of the Moldovans, but the damage it caused to a successful business. My understanding is that Andrea will be updating her photography website with the latest news now that the appellate court ruling is public. I for one will be following these updates because it will likely shape the future of how clients and businesses interact publicly, especially when it comes to misunderstandings or disagreements.