OCTOBER 25, 2012
“Online Reviews – When Do They Go From Helpful To Defamatory?”
Ashby Jones, Wall Street Journal Law Blog
But when, if ever, can negative reviews get a commenter in trouble? That is, at what point does negative feedback cross the line and become something legally actionable, like defamation?
It’s an issue that’s currently playing out in front of the Minnesota Supreme Court. An Associated Press Story lays out the facts, opening thusly:
A Minnesota doctor took offense when a patient’s son posted critical remarks about him on some rate-your-doctor websites, including a comment by a nurse who purportedly called the physician “a real tool.”
So Dr. David McKee had an unusually aggressive response: He sued the son for defamation. The Duluth neurologist’s improbable case has advanced all the way to the Minnesota Supreme Court, which is weighing whether the lawsuit should go to trial.
Generally speaking, the law in the area is fairly straightforward, according to the Associated Press. Individuals are legally entitled to express opinions, as long as they don’t knowingly make false statements. That said, if the parties disagree over what’s true and what’s false, the cases can become more difficult. And that brings us back to the Minnesota case. According to the Associated Press:
At issue are six of Dennis Laurion’s statements, including the account of the nurse’s name calling. McKee and his attorney say the unnamed nurse doesn’t exist and that Laurion invented her to hide behind. Laurion maintains she is real, but he can’t recall her name.
In arguments before the court in September, Laurion attorney John Kelly said his client’s statements were legally protected opinion that conveyed dismay over how McKee treated Laurion’s father, who had suffered a stroke.
According to the Associated Press, when health care providers do sue, they rarely succeed, according to Eric Goldman, a law professor at Santa Clara University. Of 28 such lawsuits he tracked, 16 had been dismissed and six settled. The others were pending. Nevertheless, Goldman said it’s wise to remember that you’re still taking a risk anytime you criticize someone in a public forum. “The reality is that we bet our house every time that we post content online,” Goldman said. “It’s a lousy answer from a societal standpoint because we need people to share their experiences so vendors will be punished or rewarded as appropriate.”
Reader wrote: What about when someone criticizes an attorney, what happens then?
Cross Reference wrote: [quote] Generally speaking, the law in the area is fairly straightforward, according to the AP. Individuals are legally entitled to express opinions, as long as they don’t knowingly make false statements. That said, if the parties disagree over what’s true and what’s false, the cases can become more difficult. [/quote]
From the American Health Lawyers Association: In this case, the court found the six allegedly defamatory statements were not actionable because the “substance, the gist, the sting” of plaintiff’s version for each of the statements as provided in deposition and defendant’s version essentially carried the same meaning, satisfied the standard for substantial truth, did not show a tendency to harm the plaintiff’s reputation and lower his estimation in the community, or were incapable of conveying a defamatory meaning (e.g., when a nurse told defendant that plaintiff was “a real tool”) based on “how an ordinary person understands the language used in the light of surrounding circumstances.”
From the Business Insurance Blog: The Minnesota high court said, for instance, that Dr. McKee’s version of his comment about the intensive care unit was substantially similar to Mr. Laurion’s. “In other words, Dr. McKee’s account of what he said would produce the same effect on the mind of the reader,” the court said. “The minor inaccuracies of expression (in the statement) as compared to Dr. McKee’s version of what he said do not give rise to a genuine issue as to falsity.”
From the Duane Morris Media Blog: The doctor said in his deposition that with regard to finding out if Mr. Laurion was alive or dead, “I made a jocular comment… to the effect of I had looked for [Kenneth Laurion] up there 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.” The court said the differences between the two versions of the statements about death or transfer by both plaintiff and defendant were so minor that there was no falsity in the website postings. In other words, the court indicated that the allegation about the statement was true.