HOME: “Trying our Patients” is the name of the Streisand Effect Vault of Online Defamation Lawsuits

Bitcher Prickman The above image by Charles Fincher may be purchased at http://www.lawcomix.com/bp.10/06.07.10.html

Trying Our Patients web page will show the evolution of online defamation lawsuits, the successes or losses of the plaintiffs, the costs to defendants.

The Electronic Frontier Foundation has a good tutorial about defamation.

What is defamation?

Generally, defamation is a false and unprivileged statement of fact that is harmful to someone’s reputation, and published “with fault,” meaning as a result of negligence or malice. State laws often define defamation in specific ways. Libel is a written defamation; slander is a spoken defamation.

What are the elements of a defamation claim? The elements that must be proved to establish defamation are: a publication to one other than the person defamed; a false statement of fact; that is understood as being of and concerning the plaintiff; and tending to harm the reputation of plaintiff.

If the plaintiff is a public figure, he or she must also prove actual malice.

Questions and answers from the Legal Guide for Bloggers

Adam Cohen of “Time” says, “Before the Internet, critique of any kind was mainly the perview of journalists. Editors, and sometimes lawyers, reviewed them for fairness and accuracy. Non-journalists who wanted to complain about businesses or other people could express their views by word of mouth, but it was difficult for them to reach a mass audience or to do much damage. Now, of course, everyone is a critic—entire businesses have been built upon the crowd-sourced opinion of the masses. There is money to be made—and lost, as bad reviews can have a major impact on a company’s bottom line.” See more Adam Cohen remarks.

August 27, 2001

“Company Sues Over Info Put On Yahoo Message Board”


Reprinted July 31, 2014 in AUGUSTA CHRONICLE

Treading into an important new area of Internet law, Nash Finch Co. has filed a lawsuit alleging that some people – possibly employees – have posted confidential information about the company on a Yahoo message board.

Courts, companies and often their current and former employees are working out what legally can be said about businesses on the Internet. The lawsuit by Nash Finch, a food wholesaler and retailer based in Edina, Minn., is an example of how companies are changing their legal strategies to go after people they believe have said harmful things about them on the Internet.

Normally, companies had slapped people with lawsuits that alleged libel, and individuals had defended themselves by saying their speech was protected by the First Amendment. But the companies that go after them have begun trying to get around that by alleging that such individuals did other things wrong, too.

The Nash Finch lawsuit, for example, claims breach of contract and misappropriation of trade secrets. If the defendants turn out to be Nash Finch employees, they have violated the company’s Code of Ethics and Business Conduct and Associate Handbook, the suit alleges.

Filed late last month in Santa Clara County, Calif., the suit did not name defendants specifically, but called them (John) “Does” 1 through 50. The company said it will amend its lawsuit once it learns the identities of those involved. To do that, Nash Finch lawyers are seeking to subpoena from Yahoo the real identities of the people who wrote the postings under made-up screen names.

A Nash Finch spokeswoman confirmed the company has filed the lawsuit, but declined further comment. The company has hired Allison Chock of the California-based law firm of Latham & Watkins, who also declined to comment.

Details and dates of the specific Yahoo postings are unknown, but recent postings by someone alleging to be a former board member are highly critical of Nash Finch CEO Ron Marshall, who joined the firm in 1998. One of the postings questioned Marshall’s integrity while another casts doubt on the validity of the company’s financial reports. Neither specified any particular wrongdoing.

The information placed on the Nash Finch message board has caused “irreparable injury” to its business, the suit alleges.

So what can you say about a company on the Internet?

Message-board participants have the right under the First Amendment to voice their opinions. That freedom is troublesome for companies and their legal and public-relations staffs, which wince about the complaints and scramble to correct inaccurate information that could be posted by consumers, investors, employees or competitors.

If a company sues, alleging simple business disparagement or perhaps defamation, its goal isn’t necessarily to win, said Marshall Tanick, a First Amendment expert at Mansfield & Tanick in Minneapolis. The strategy is “to force the other person to incur huge legal expenses that will deter them and others” from making such statements, he said. Companies typically shy from suing customers because it creates bad publicity. Thus, much of the legal activity involves employees or former workers. “I’m seeing it happen with increasing frequency … yet very few (cases) go all the way” to trial and verdict, Tanick said. A company’s strategy typically includes filing in a state that might be inconvenient and costly for defendants. Lawyers will seek ways to avoid First Amendment issues because they are difficult to win. One option is to allege breach of contract or violation of trade secrets rather than defamation, he said.


 JUNE 2009

“Online Libel Claims Abound”


 Positive reviews can attract new customers—but negative reviews may inspire the subjects to head to court. One suit, waged by a chiropractor who was poorly reviewed on Yelp, settled in mediation earlier this year, and a second suit, filed last year by a pediatric dentist, is pending on appeal. A third case, also involving a dentist, settled last year after a superior court judge in San Francisco, where Yelp is based, granted the defendant’s anti-SLAPP (Strategic Lawsuits Against Public Participation) motion. California attorneys, meanwhile, say they’re fielding an increasing number of calls from angry business owners seeking recourse.

“It shouldn’t come as a surprise, due to the sheer increase in popularity of these sites in the past year,” says Matt Zimmerman, a senior staff attorney at the Electronic Frontier Foundation, a nonprofit civil liberties law firm in San Francisco that specializes in high-tech legal issues.

Suing the host sites for their user-generated content is fruitless: Section 230 of the federal Communications Decency Act (CDA) shields the sites from defamation suits as long as they didn’t create the objectionable materials.

The aggrieved parties, however, can and do go after the reviewers (known as posters) who publish their opinions online. Legally, posters have plenty of leeway – as long as they don’t cross the line into defamation, says Karl Kronenberger, a partner at San Francisco’s Kronenberger Burgoyne who represents businesses in such matters. And California’s anti-SLAPP law shields people who speak out on issues of public interest—a protection that broadly extends to consumer matters.

In addition to being difficult to prove and win, allegations of online defamation can also backfire: A stray negative posting may fade into obscurity, but a lawsuit over it can provoke exactly the kind of negative publicity that business owners are desperate to avoid, notes Mark Lemley, who teaches Internet law at Stanford Law School and is a partner at Durie Tangri Lemley Roberts & Kent in San Francisco.

This is a key reason many experts advise that, whenever possible, attorneys should help their clients settle such matters.

In the meantime, the smartest strategy for merchants who’ve suffered a withering critique may be to rally patrons to post rave reviews. “The answer to negative speech, especially online, isn’t to try to silence people,” Zimmerman says, “but to encourage more speech.”


 SEPTEMBER 6, 2010

“What Not To Do With A Negative Review”

Mike Haverhals, DOCTOR BASE

We get a lot of questions about what to do about the dreaded negative review if-and-when it rears its ugly head. Obviously, the first thing you should do is contact the patient privately to resolve the issue. More often than not, these issues can be easily resolved when the doctor takes the time to listen to the patient’s concerns. In the event that you can’t resolve the problem at hand, the next thing to do is even simpler – do nothing. The truth is, a negative isn’t the worst thing ever – unless you make it the worst thing ever.

You could reply publicly to the review, dragging yourself down into a online mud-slinging contest & potentially violating HIPAA laws by disclosing the patient’s Protected Health Information in an attempt to defend yourself.

You can always threaten to sue the review site, incurring a massive legal bill for nothing since review sites are only ‘content providers’ and not legally responsible for what users post.

You could also threaten to sue the reviewer, again incurring a massive legal bill for nothing since the lawsuit will be thrown out under the anti-SLAPP law. (The law barring any “Strategic Lawsuit Against Public Participation.“)

Unfortunately, all of these approaches will also serve to do you more harm than good. It’s something we online geeks refer to as the “Streisand Effect.” When Streisand took legal action to force the removal of online images of her beachfront property from a website documenting the California Coastline, what resulted was even more publicity around the images, along with negative publicity around Streisand’s attempt to censor the photographer. (Which failed, as the lawsuit was thrown out under anti-SLAPP laws.) Don’t fall into the same trap.

Simply let it go. Instead, focus on getting more positive reviews online to drastically outweigh the occasional negative one. Like we always tell doctors – people don’t expect perfection, they do expect honesty. When potential patients find out you’re trying to muzzle your exiting patients, they’ll go elsewhere looking for an honest doctor. One who’s confident enough in their own abilities not to be concerned with covering up a negative review.


David McKee, MD, v. Dennis K. Laurion

Yvonne Wong, DDS, v. Tai Jing

MARCH 14, 2011

“Libel Abounds, But Libel Lawsuits Are Rare.”


One Facebook user, angry over a dispute with a neighbor, ridicules her online as a thief and a liar. On Twitter, someone accuses a murder suspect of being a killer. A blogger discloses sensitive details about a political candidate’s personal life.

In Minnesota, and everywhere else, a perplexing phenomenon has emerged as millions of people have their say in social media. In today’s world, libelous online comments are rampant – and yet with the notable exception of the “Johnny Northside” blog case, very few people have filed lawsuits over reckless and untrue statements.

Court actions involving users on youth-dominated social media remain surprisingly low, suggesting a new outspoken culture that’s more tolerant of lies, rude behavior and character assassination.

“They’ve come to accept this kind of hurly-burly Internet conversation as normal,” said Mark Anfinson, a Minneapolis media attorney. “There are a lot of folks out there who never had a voice before. They now talk in a context just like in a bar or across the backyard fence.”

While loose lips have become common in social media exchanges, consequences loom for people who launch false attacks that threaten to inflict serious harm on someone’s reputation. Libel cases, often driven by anger and a quest for vengeance, can cost tens of thousands of dollars in attorney fees and result in unflattering publicity.

In Minnesota, only a handful of people have been sued for comments they made online and even fewer cases go to trial. Reasons for this, experts say, include:

  • Attorneys can’t sue Internet companies — who have the deep pockets — for what individual users say because of protection from the federal Communications Decency Act.
  • A blurring between fact and fiction continues unabated on Internet sites.
  • Many states have no laws to address the endless ways people fabricate information.
  • Many online postings are never seen in the first place. Unlike permanent comments in newspapers, postings can slide past without being noticed — but whether they ever disappear from databases remains in dispute.
  • Online postings, depending on how they’re delivered, can have narrow audiences.


DECEMBER 14, 2011

“Should a Doctor or Dentist Sue a Patient for Bad-Mouth Comments?”

Stewart Gandolf, Healthcare Success

From time to time we see news items about doctors or dentists who threaten legal action against patients. But suing a patient for a negative comment (or comments) is likely to be a bad idea. In fact, it just might be the worst thing to do.

We can sympathize with a practitioner’s frustration and outright anger. Negative comments and online reviews can be untrue, unkind and one sided. What’s more, we’ve never met a doctor, dentist, physician, surgeon or other healthcare provider who isn’t fiercely protective of his or her personal and professional reputation.

Their reputation—real or perceived, in person or online—is the sum of everything they do. And from a physician marketing perspective, their personal and practice reputation is at the heart of their brand and branding message. It’s no wonder that healthcare providers—doctors in particular—are highly sensitive and sometimes nearly fanatical about any and all reflections on their reputation.

And while a lawsuit may “feel” justified, there are good reasons to reconsider the temptation for a dentist or physician to “strike back” in court. From a healthcare public relations and marketing perspective.

The “doctor-sues-patient” story is likely to grab much more media attention than the original patient review. A small local story can suddenly go national. It’s the PR equivalent to throwing gasoline on embers. It’s going to ignite a flash fire with an explosive downside and not much of an upside.



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