NOVEMBER 5, 2012
“When Online Reviews Become Defamation Suits”
Professor Randall C. Picker, The Legal Infrastructure Of Business
Online reviews have become a big driver of consumer preferences in the last several years, particularly due to the popularity of sites like Angie’s List and Yelp. These reviews help provide feedback to prospective customers about the quality and level of service they can expect from a certain provider, but when do these reviews overstep their bounds and become defamation? The Supreme Court of Minnesota is currently weighing whether a case on this topic should go to trial.
In April 2010, Dennis Laurion accompanied his parents to a neurologist appointment with Dr. David McKee after Mr. Laurion’s father had been hospitalized for a stroke. After a 10-15 minute visit with Dr. McKee, Mr. Laurion returned home, upset with the visit and posted the following review online:
My father spent 2 days in ICU after a hemorrhagic stroke. He saw a speech therapist and physical therapist for evaluation. About 10 minutes after my father transferred from ICU to a ward room, Dr. David C. McKee walked into a family visit with my dad. He seemed upset that my father had been moved. Never having met my father or his family, Dr. McKee said, “When you weren’t in ICU, I had to spend time finding out if you transferred or died.” When we gaped at him, he said, “Well, 44% of hemorrhagic strokes die within 30 days. I guess this is the better option.” My father mentioned that he’d been seen by a physical therapist and speech therapist for evaluation. Dr. McKee said, “Therapists? You don’t need therapy.” He pulled my father to a sitting position and asked him to get out of bed and walk. When my father said his gown was just hanging from his neck without a back, Dr. McKee said, “That doesn’t matter.” My wife said, “It matters to us; let us go into the hall.” Five minutes later, Dr. McKee strode out of the room. He did not talk to my mother or me. When I mentioned Dr. McKee’s name to a friend who is a nurse, she said, “Dr. McKee is a real tool!”
In addition to this review, Mr. Laurion sent letters to the hospital and numerous medical associations and organizations that contained substantially similar comments. Dr. McKee sued for defamation.
The distinction between opinion and defamation has been around for years, but the platforms for disseminating reviews have drastically changed over the years.
Historically, someone who wanted voice a poor review needed to balance that with the cost of spending significant time and effort to voice that opinion. Now, due to the internet, the platforms and accessibility have made it easier, some may even argue too easy, to distribute a negative opinion. Therefore, the stakes are higher as online review sites grow in popularity and continue to influence consumer behavior. Citizens have, and will continue to have, the right to voice their opinion, so long as all of the facts used in their opinion, are not knowingly false. The issues arise when the parties argue over the facts.
The facts in these types of cases typically fall into the “my word against theirs” category. Below I discuss some of the arguments in the case to highlight how granular the distinction can be between what is a fact versus opinion.
- “I had to spend time finding out if you transferred or died” – Dr. McKee maintains that he made a lighthearted comment to the effect of I had looked for him up in the intensive care unit and was glad to find that, when he wasn’t there, that he had been moved to a regular hospital bed, because you only go one of two ways when you leave the intensive care unit; you either have improved to the point where you’re someplace like this or you leave because you’ve died. While the comments are substantially similar, Dr. McKee maintains that the “sting” is very different. In Mr. Laurion’s version, Dr. McKee seems to blame the patient and joke about their death, but in his statement, expresses happiness for the patients improved condition. Therefore, if a jury believes Dr. McKee’s recollection, then the statements by Mr. Laurion are not substantially accurate.
- Laurion asserts that in response to the patient’s gown not covering his backside, Dr. McKee said, “That doesn’t matter” – Dr. McKee maintains that he said something to the effect of “I thought it would be fine” or “It looks like it’s okay” to indicate that the gown was sufficiently tied. While these statements are similar, to a listener they can come across very different with the first implying that a patient’s concern doesn’t matter, while the second can be interpreted as reassuring a patient. Again, the distinction between these comments has large implications on whether Mr. Laurion’s statements are substantially accurate or not.
- “A friend who is a nurse, she said, “Dr. McKee is a real tool!” – The court is not evaluating whether what the nurse said is fact or not, the court is evaluating whether there is in fact a nurse that made the statement or not. Mr. Laurion was unable to identify the nurse and there was not a nurse that matched the physical description provided by Mr. Laurion.
This topic is particularly difficult for doctors, lawyers and other professionals who rely on their good name and reputation in the industry and community to drive business.
In fact, some medical practices even tried to silence critics by requiring patients to sign a form forbidding them from posting comments on the internet. At least one of the doctors that promoted this practice has since stopped amid widespread criticism. Most negative reviews never elicit a response, since the costs of fighting (hiring counsel and lost business due to spending time on a lawsuit rather than practicing) can far outweigh the benefit of winning. And when fought, these cases are difficult to win. Of the 28 such lawsuits tracked, 16 have been dismissed and six settled, with the balance pending. On the other side, if a doctor is consistently treating patients poorly, the public deserves to know.
Here in Chicago, we have the benefit of a large population which lends itself to a good sample of reviews to evaluate when choosing a service. In smaller cities and rural areas, a review like this may be the only one attributed to a professional which can make the impact on the professional’s reputation and business, much more significant.
I think most people would agree that easy access to performance reviews of different providers is beneficial, but how can the authenticity of the review and/or reviewer be verified? What must happen to earn a scathing review? Does a phone call to a store provide enough information to warrant a poor review? Was the phone call recipient actually rude, or was the caller in an extremely irritable mood? A one star review can be misleading when you read the comments and learn that the reviewer never even used the service.
Is it possible to form an opinion about a service provider with less than a handful of reviews?