“Courts Confront Online Reviews”
Jack Komperda, Reporters Committee for Freedom of the Press, Page 29
AP Photo/Jim Mone. Marshall Tanick, above, represents Dr. David McKee in a suit against McKee’s patient’s son for defamation after critical remarks about the doctor were posted on rating websites.
Dennis Laurion did not like the way a Minnesota doctor treated his father after the elderly man suffered a stroke, and he wanted to make sure others knew about his family’s experience. So Laurion went on several rate-your-doctor websites and posted negative reviews of Duluth neurologist Dr. David McKee. He didn’t stop there — he also sent letters to the hospital and several medical associations echoing his complaints about McKee’s care.
In most situations, the story would have ended there. McKee, however, aggressively fought back to protect his reputation by suing Laurion for defamation. The posted online statements are now under review by the Minnesota Supreme Court in a case that could test the limits of how far Internet-based reviewers can go to criticize their subjects.
“The case may not break a lot of new ground legally, but it stands as a powerful reminder that if (content creators) make mistakes in what they write online, they may be held accountable for it,” said Eric Goldman, an associate professor at Santa Clara University School of Law in California who tracks such suits.
At issue in McKee’s appeal is whether six statements Laurion published — descriptions of his account of McKee’s treatment — can be considered not just opinion but factual assertions capable of being proven true or false, the standard the U.S. Supreme Court established in its 1990 landmark opinion Milkovich v. Lorain Journal Co. for what constitutes opinion protected under the First Amendment.
Among Laurion’s postings are assertions that McKee declined to speak to the family after evaluating Laurion’s father, that the doctor seemed upset and scowled during the visit and that a nurse who spoke with the family afterward referred to McKee as “a real tool.”
In April 2011, Minnesota District Court Judge Eric Hylden dismissed McKee’s suit, concluding that none of the statements at issue were defamatory but rather “appear[ed] to be nothing more or less than one man’s description of shock at the way he and in particular his father were treated by a physician.”
McKee appealed the trial court’s dismissal to the Minnesota Court of Appeals, which in January reinstated the suit, sending it back to the lower court with instructions that a jury decide whether six of the statements harmed McKee’s reputation.
In one such statement, Laurion notes that McKee told the family he had to “spend time finding out if (Laurion’s father) transferred (to another hospital ward) or died.” The appellate court concluded that a jury was best suited to determine whether McKee made the statement in jest or whether the doctor blamed the family for wasting his time.
The appellate court also decided that it was a jury’s role to evaluate the truth of McKee’s alleged statement that it did not matter that Laurion’s father’s gown did not cover his backside. As for Laurion’s claimed encounter with the nurse who allegedly called McKee “a real tool,” the appellate court likewise found that a jury should decide whether Laurion fabricated the conversation. Laurion appealed the ruling in McKee v. Laurion to the state Supreme Court, which heard oral arguments in the case in September. The court is expected to issue its opinion within the next few months.
McKee’s situation and the high-profile legal battle he undertook in response are fairly unique. Unlike those Laurion posted about the doctor, most online reviews are positive. Online review site Yelp, for example, reports that 80 percent of its online reviews are three to five stars out of a maximum of five. Online travel site TripAdvisor similarly reports that 75 percent of its reviews are rated “very good” or “excellent.”
When defamation suits are filed against online reviewers, many are disposed of early in the process. Specifically, of the 28 defamation lawsuits that healthcare providers filed and Goldman tracked, 16 were dismissed, six settled, and the remainder were pending.
In six of the cases Goldman followed, the online reviewers-defendants were able to take advantage of state anti-SLAPP legislation. Short for “strategic lawsuits against public participation,” such lawsuits often are couched as defamation or other tort claims aimed at intimidating and silencing critics of businesses. Such legislation often allows judges to dispose of meritless lawsuits early, and in many states the anti-SLAPP law allows judges to award successful defendants reasonable costs and attorneys’ fees.
Such protections are crucial to ensuring that the First Amendment’s strong free speech guarantee applies just as forcefully to the Internet generally and user comments posted on review websites specifically, media advocates say.
“Consumers should be able to freely discuss their experiences without fear that somebody is going to come knocking on the door with a lawsuit,” said John Swapceinski, co-founder of RateMDs.com, an online review site of medical professionals. The company established on its website a self-described “Wall of Shame” that identifies doctors who ask prospective patients before accepting them as patients to sign what the organization dubs “gag contracts,” or agreements promising not to write any opinion pieces on Internet review sites.
Kristen Whisenand, a Yelp spokeswoman, said reviewers are within their rights to express their opinions and share their experiences with businesses. The company, which Whisenand said receives requests daily to remove negative reviews, discourages the “nuclear option” of suing over a negative review, in part because doing so often draws more attention to the negative review and because such suits are rarely successful.