OCTOBER 29, 2012
“What You Need ( To Know )About Defamation Suits”
Leonardo Angiulo, Legal Expert, Go Local Worcester
Lawsuits for defamation of character have a certain place in our hearts. We think to ourselves that people that spread rumors will get their due for being scandalous when we hook them to a big verdict. Of course, on the other side of the equation are people that believe in their right to publish thoughts and opinions. Like many things in the law, the answer to the question of “who is right” is “it depends.”
A case, McKee v. Laurion, recently went to the Minnesota Supreme Court on this very topic. According to the trial court documents, some family members of a medical patient were dissatisfied with a certain doctor’s bedside manner. After their experience they reported their characterizations of the doctor’s behavior as well as the opinion of a third party who described the doctor as “a real tool!” Please note, the exclamation point comes from the court filings and it’s not mine. It is, however, hilarious because we just don’t get a lot of slang in cases that get national press coverage.
Long story short, the trial court ruled that none of the statements alleged in the complaint were defamatory and so ordered summary judgment against the doctor. Naturally, the plaintiff appealed, and the Minnesota Appeals Court reversed and remanded the case for trial. On September 4, 2012 the Minnesota Supreme Court heard oral argument on the matter, and the parties are currently waiting for the results. ( 1 )
While this whole thing occurred in another state, it is an interesting commentary on exactly what recourse is available to people whose professional reputations are now subject to search engine results. In Massachusetts, defamation can be broken down into 3 required elements: 1) the defendant published a defamatory statement concerning the plaintiff, 2) the defendant either knew the statement was false or recklessly disregarded the veracity of the statement, and 3) the statement either caused the plaintiff economic loss or was of the type that is actionable without proving loss. To complicate things a bit, when a defamatory statement is a matter of public concern, the law of Massachusetts requires the plaintiff prove the statement was false when published.
So, I have used the term defamatory statements several times in the article and I think it’s time to define it. They can be described as those tending to subject the target to scorn, hatred, ridicule, contempt, or otherwise discrediting them in the minds of any considerable and respectable segment of the community. Most people reading this article will probably be thinking, “but what about free speech?” The First Amendment to the United States Constitution places limitations on the civil claim of defamation. If, for example, a statement is substantially true when made the statements are not actionable. In addition, one strongly worded opinion from Massachusetts Supreme Court declares statements of pure opinion to be constitutionally protected because there is no such thing as a false idea.
Exactly what “substantially true” and “pure opinion” mean could be articles in and of themselves. Suffice it to say, that while this case is in Minnesota, the issue is all across our nation. With the prevalence of online opinion forums, and professionals trying to earn a living, there is certain to be opportunities for the trial and appeal courts of the Commonwealth to define these terms for the digital age
( 1 ) Dennis L: “and the parties are currently waiting for the results.”
Minnesota High Court Says Online Post Legally Protected
By STEVE KARNOWSKI, January 30, Associated Press
MINNEAPOLIS (AP) — A man’s online post calling a doctor “a real tool” is protected speech, the Minnesota Supreme Court ruled Wednesday. The state’s highest court dismissed a case by Duluth neurologist David McKee, who took offense when a patient’s son posted critical remarks about him on rate-your-doctor websites. Those remarks included a claim that a nurse called the doctor “a real tool,” slang for stupid or foolish.
The decision reversed a Minnesota Court of Appeals decision that would have let the doctor’s lawsuit proceed to trial.
The opinion, written by Justice Alan Page, said the comments posted by Dennis Laurion don’t add up to defamation because they’re opinions that are entitled to free speech protections.
“Referring to someone as `a real tool’ falls into the category of pure opinion because the term `real tool’ cannot be reasonably interpreted as stating a fact and it cannot be proven true or false. … We conclude that it is an opinion amounting to `mere vituperation and abuse’ or `rhetorical hyperbole’ that cannot be the basis for a defamation action,” the justices said.
The ruling also said it doesn’t matter whether the unnamed nurse actually exists. McKee’s attorney argued that Laurion might have fabricated the nurse, something Laurion’s attorney denied. And it said the doctor’s objections to Laurion’s other comments also failed the required legal tests.
The case highlighted the tension that sometimes develops on ratings sites, such as Yelp and Angie’s List, when the free speech rights of patients clash with the rights of doctors, lawyers and other professionals to protect their good names.
Experts say lawsuits over negative professional reviews are relatively uncommon and rarely succeed, partly because the law favors freedom of speech.
This dispute was over how McKee treated Laurion’s father, who had suffered a stroke, during a single hospital visit in 2010 that lasted 10 to 15 minutes. Laurion expressed his dismay in several online posts with what he considered the doctor’s insensitive manner.
“I’m sure he and his family are very happy with this result,” Laurion’s attorney, John Kelly, said. “It’s been a long and difficult process for them.”
McKee’s lawyer, Marshall Tanick, said he and McKee plan no further appeals and that they were disappointed with the ruling. “We feel it gives individuals undue license to make disparaging and derogatory statements about these people, particularly doctors and other licensed professionals, on the Internet without much recourse,” Tanick said.
While the decision is not binding in other states, Kelly and Tanick agreed that it might influence how other courts would rule on similar questions. Kelly said lawyers often look at rulings from other jurisdictions when they put cases together, sometimes for leads or guidance.
“Certainly this is a cutting edge issue and I’m sure lawyers and courts in other jurisdictions will pay attention to this decision and give it the weight it deserves,” Tanick said. ( 2 )
( 2 ) Dennis L: “Certainly this is a cutting edge issue and I’m sure lawyers and courts in other jurisdictions will pay attention to this decision and give it the weight it deserves,” Tanick said.
These rebuttals are from other newspapers or websites:
Doctor David McKee, a neurologist with Northland Neurology and Myology, practicing at St. Luke’s Hospital, told the Duluth News Tribune he was disappointed and frustrated. “We need to change the law so someone with a personal vendetta who is going to use the Internet to make defamatory statements can be held responsible,” he said.
The Minneapolis Star Tribune said it’s a frustrating end for McKee, 51, who said he’s spent at least $50,000 in legal fees and another $11,000 to clear his name online after the story went viral, resulting in hundreds more negative postings about him — likely from people who never met him. He hasn’t ruled out a second lawsuit stemming from those posts.
“The financial costs are significant, but money is money and five years from now I won’t notice the money I spent on this,” he said. “It’s been the harm to my reputation through the repeated publicity and the stress.”
McKee’s lawyer, Marshall Tanick of Hellmuth Johnson, told the Associated Press that he and McKee plan no further appeals and that they were disappointed with the ruling. “We feel it gives individuals undue license to make disparaging and derogatory statements about these people, particularly doctors and other licensed professionals, on the Internet without much recourse,” Tanick said.
Marshall Tanick of Hellmuth Johnson told the Minneapolis Star Tribune that the ruling could present a slippery slope. “This decision gives individuals a license to make derogatory and disparaging statements about doctors, professionals and really anyone for that matter on the Internet without much recourse,” he said.
In reply to an e-patients.net article “Minnesota Supreme Court sides with patient on social media defamation suit,” Attorney Marilyn Mann said, “I think McKee’s lawyer is incorrect. The case turned on standard principles of defamation law and doesn’t really break new ground.”
Jane Kirtley, a professor of media ethics and law at the University of Minnesota School of Journalism, told the Minneapolis Star Tribune that the ruling stems from “an elementary principle of libel law.” She said that this isn’t a blank check for people to make false factual statements. She said, rather, that it’s “an endorsement that statements of opinion are protected under the First Amendment.”
According to the Duluth News Tribune, Minnesota Newspaper Association attorney Mark Anfinson, who watched the oral arguments before the Supreme Court in September, said that the justices made the right decision. Anfinson also told the Duluth News Tribune, “What this case really exemplifies is not so much legal precepts in libel law, but the impact of the Internet on the ability to publish unflattering comments about people.”
Anfinson was also interviewed by Minnesota Lawyer. He said, “Anyone who knew about the case, who observed the oral arguments, and who knows something about libel law is about as unsurprised with this result as they can be. It’s about as perfunctory and routine as the Supreme Court ever gets. It was a completely straightforward application of long-settled libel-law rules.”
Anfinson said the case is more significant for social commentary purposes than for its legal analysis, noting that perhaps the justices only accepted the case to fix an error of the Court of Appeals.
Laurion’s attorney, John D. Kelly, said the fact that Laurion’s speech was made online was inconsequential to the ruling, which treated it as a standard defamation case. “It’s almost as if things were said around the water cooler or perhaps posted in a letter to the editor,” he said. “I think the principles they worked with are applicable to statements made irrespective of the medium.”
Commenting about this case on his own blog, February 8, 2013, Aaron Kelly, internet law & defamation law attorney, said “Thanks to the First Amendment, free speech is the law of that land, and that means being able to communicate our views publicly – no matter how offensive.”
The Mankato Free Press said in February 2013: “It’s puzzling why McKee’s defamation lawsuit — filed nearly four years ago — was still in court. It’s long been established that people may spout any opinion they want without fear of being sued . . . It’s unsettling that the Appeals Court earlier ruled to allow the suit to continue.”
Mark A Fischer of Duane Morris LLP, a full-service law firm with more than 700 attorneys in 24 offices in the United States and internationally, said on February 11, 2013, “For those who are under criticism, one of the practical consequences of bringing a defamation action is that more publicity for the accused statements is almost an inevitable result, whether the statements are ultimately found libelous or not. In other words, in weighing the pros and cons of initiating a lawsuit, all potential defamation and privacy claim plaintiffs should consider the rule of Hippocrates applicable to physicians, ‘First do no harm.’”
In his Technology & Marketing Law Blog, Eric Goldman said on February 4, 2013, “I’ve been tracking doctor v. patient lawsuits for online reviews. . . doctors usually lose or voluntarily drop these lawsuits. Indeed, with surprising frequency, doctors end the lawsuit by writing a check to the defendant for the defendant’s attorneys’ fees where the state has a robust anti-SLAPP law. Doctors and other healthcare professionals thinking of suing over online reviews, take note: you’re likely to lose in court, so legal proceedings should be an absolute last-resort option–and even then, they might not be worth pursuing.”
Dan Hinmon, the principal of Hive Strategies, wrote for Health Care Communication, on March 21, 2013, “According to the Star Tribune, McKee is now ticked off at the people who posted hundreds more negative comments about him after the story went viral. Incredulously, the story reports that McKee ‘hasn’t ruled out a second lawsuit stemming from these posts.’ Yes, you read that right. After spending ‘at least $50,000 in legal fees and another $11,000 to clear his name online after the story went viral,’ McKee is considering suing the rest of the people who, exercising their right of protected speech, chimed in. I’m speechless.”