March 26, 2013
Reprinted February 2, 2016
Guest Opinion: “When Online Reviews Lead To Lawsuits”
Ken Paulson, Guest Opinion
Roanoke County News
Dennis Laurion posted caustic reviews of Minnesota neurologist David McKee, saying he was insensitive to his father’s needs and claiming that a nurse called the doctor “a real tool.” This angered McKee, who offered his own prescription: a libel suit.
The Minnesota Supreme Court found that the critical comments were protected under the First Amendment as free speech because they were just an opinion — “mere vituperation” — and dismissed the case.
Libel cases over online comments are on the rise, perhaps inevitably in an era of impulsive tweets and anonymous comments. Nevertheless, what could be a more fundamental exercise of free speech than telling others about your negative experiences with doctors, lawyers, contractors, and hotels?
Unfortunately, not all complainers can be counted on to give an accurate and fair account, and a business can be damaged irreparably by false allegations.
Courts have largely found that comments that are strictly opinion or hyperbole are protected by the First Amendment, while unsupported statements of fact can lead to liability. That probably means you can post a comment calling your lawyer a “clown” or “buffoon.” On the other hand, suggestions that your counsel is unlicensed, negligent, or careless are assertions of fact and not mere insults and could land you in a courtroom.
Ironically, the federal law that protects review sites such as Yelp, Angie’s List, and RateMD.com can also lead to reckless claims online. Section 230 of the Communications Decency Act protects websites from libel claims as long as they simply permit the posting of content and don’t actively control posts. If a website edits posts, weeding out vitriolic or unfounded attacks, its potential liability can be more, not less.
There’s no question that the websites rating professionals and public accommodations are a real plus for consumers. A few minutes online can help ensure that you make the right choices in terms of your health care, legal advice, as well as vacation accommodations.
Even so, the hands-off administration of these sites can undercut their overall credibility.
Ken Paulson is president and chief executive officer of the First Amendment Center at Vanderbilt University and in Washington, D.C. Previously, Paulson served as the editor and senior vice president/news of USA Today.