JANUARY 16, 2013
“Defamation Cases Illustrate Dangers Of Suing Over Critical Internet Reviews”
Arent Fox, Lexology
In Rahbar v. Batoon, the California Supreme Court declined to revive a dentist’s lawsuit against a patient who had posted a negative online review on Yelp.com. See No. S206889 (Cal. Jan. 3, 2013). The patient, Jennifer Batoon, posted her critical review in August 2008, writing “DON’T GO HERE. MOST PAINFUL DENTIST EVER.” and voicing her displeasure with her dentist’s treatment choices, billing practices, and communication skills. In September 2009, the dentist, Gelareh Rahbar, sued her former patient in San Francisco Superior Court, pleading claims of defamation and invasion of privacy based on the Yelp review.
The defendant ultimately moved to strike these claims under California’s anti-SLAPP (i.e., “Strategic Lawsuit Against Public Participation”) statute, which provides “a cause of action against a person arising from any act of that person in the furtherance of the person’s right of petition or free speech . . . in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” See Cal. Civ. Proc. Code § 425.16. The San Francisco Superior court granted the motion and awarded Batoon $43,035 in attorney fees. Rahbar did not appeal this decision, but instead filed a second lawsuit in August 2010 based on Batoon’s 2008 Yelp review. Again, the defendant filed an anti-SLAPP motion, and the court ruled she was entitled to fees. The plaintiff appealed this decision, and in October 2012, the California Court of Appeal affirmed the trial court’s grant of the special motion to strike and award of attorneys fees to the defendant. See Rahbar v. Batoon, No. A132294 (Cal. Ct. App. Oct. 16, 2012). On January 3, 2013, during its weekly meeting, the California Supreme Court rejected, without comment, Rahbar’s request to challenge the award.
The advent of the Internet has created a new forum for customers to chronicle their purchasing experiences or express their feelings toward service providers, and, in many cases, companies may feel that former customers have been unfairly, or deceptively, critical of their goods or services. Nevertheless, companies should tread carefully when considering legal action against former customers or clients who post unfavorable reviews on the Internet, especially in states like California that have strong anti-SLAPP statutes. In this context, rushing into court can result in an embarrassing defeat, or worse, costly awards under a state’s anti-SLAPP statute.
Dr. Rahbar denies these allegations and contends that both reviewers are lying about her in retaliation because she sent their overdue accounts to collection agencies. Most of the other 41 patients who have reviewed Dr. Rahbar on Yelp give her good marks; her cumulative rating is four stars out of a possible five. But she says these criticisms were devastating.
“I’ve suffered tremendously emotionally because of this,” she told DrBicuspid.com. “I have nothing against online review sites, but I don’t agree with defamatory speech.” She said Yelp advertising representatives had approached her with an offer to prominently display a favorable review in exchange for a monthly fee, an offer that felt to her “like extortion.”