The Deposition of David C. McKee, M.D., was taken before Carol Danielson, RPR, Notary Public, commencing at approximately 11:43 a.m., January 7, 2011. It was introduced as Exhibit AA-156.
Yelp’s Warning: This Dentist Might Sue You For Posting A Negative Review
July 25, 2016
After suffering through tooth pain for some time, Mary Rohs decided to see a dentist. Rohs, a New York resident, scheduled an appointment at Advanced NYC Endodontics with Dr. Nima Dayani on July 16, 2015, to treat the pain.
More than a year later, the fallout from that routine appointment — a negative Yelp review by Rohs, and a lawsuit by Dayani claiming the review was defamatory — continues. And today, Yelp itself got involved, placing a new “consumer alert” on Dr. Dayani’s Yelp page, warning that his business may be “issuing questionable legal threats against reviewers.”
“Consumers have the right to share their opinions about their experiences with businesses,” Yelp said in a blog post announcing the new alerts. “But there will always be a small handful of businesses who mistakenly think it’s a good idea to threaten consumers who exercise their free speech rights.”
Court records say Rohs showed up to Dayani’s office around 11 a.m., filled out intake forms, and was shown into an exam room about 20 minutes later, where she had additional X-rays taken of her mouth.
According to Dayani’s timeline of her visit, Rohs spent about two hours at the office. He argues that he was treating other patients while Rohs sat in the exam room, but he made sure to discuss her dental history in length and take additional X-rays to check out her complaints about cold sensitivity. “By the end of her visit, she had two concurrent definitive diagnoses,” said Dayani in an affidavit. “They were discussed with her and a plan of treatment was formulated.”
But in a Yelp review dated July 27, 2015, Rohs described a frustrating experience. She complained about the “absurdly long wait” at the end of which she said Dayani couldn’t come to some clear diagnosis. “Of the total TWO HOURS FIFTEEN MINUTES I was there, I think I was speaking to Dr. Dayani for about 30 minutes of that whole time,” she wrote. “The rest was spent in his chair, without being offered a water or a magazine.” To make matters worse, she adds, “he couldn’t help determine what was bothering me. I left with a mouth full of pain and a recommendation to see my dentist for a possible cavity.”
Dayani, who says he gets plenty of positive and negative feedback on Yelp and is comfortable with both, says the claims by Rohs weren’t simply a negative review. He alleges her comments amount to defamation, and he sued Rohs two days after the review was posted. It’s an accusation the dentist has levied against at least four previous patients who have written negative reviews about his practice, according to a BuzzFeed News review of court records.
Dayani said false negative reviews like Rohs’ have harmed his practice over time. He said he laid off one part-time staff member because of a drop in business. “[Rohs] accused me of malpractice by saying I didn’t diagnose her,” he said. “When you are publicly accusing someone of malpractice, you are damaging their reputation.”
Rohs declined to comment to BuzzFeed News because the lawsuit is ongoing.
It’s likely that Rohs, like millions of Yelp users, had no idea that a negative review could land her in court. But as online reviews become more critical to companies looking for new business, people have become increasingly vulnerable to such lawsuits, which can chill free speech, consumer advocates told BuzzFeed News.
“When you as a consumer share your honest opinion in some type of public way on Yelp or otherwise, it can mean negative reviews,” Yelp’s vice president of public policy, Luther Lowe, told BuzzFeed News. “Businesses, rather than responding diplomatically or using feedback to improve operations, go out and hire a lawyer wagering that the consumer who wrote this review is more likely to pull the review off than hire a defense attorney and defend themselves. By merely threatening, it doesn’t take going to court to bully the person in order for that business to censor the user.”
The consumer alert Yelp put on Dayani’s page Monday is the third time the company has placed such a warning, Yelp spokesperson Hannah Cheesman told BuzzFeed News.
The company placed its first legal alert on a Texas pet sitting business called Prestigious Pets in May. The pet sitting company sued a customer for violating the company’s nondisparagement, or “gag,” clause when she posted a negative review about the company’s care for her fish.
Superior Moving & Storage in Florida was hit with a legal alert on its page in June after it sued one of its previous customers for defamation. Both cases are ongoing.
Lowe said that businesses sometimes include so-called gag clauses into their terms of service contracts. When the contract is signed, the consumer gives up their ability to publicly criticize the company. Other companies include contract clauses that prohibit consumers from saying anything publicly at all about the company, while others, like Dr. Dayani, may allege defamation and libel in court based on the negative review.
Yelp’s rollout of the consumer alerts comes as Congress considers two bills designed to protect consumers from being sued for posting negative reviews online. California and Maryland are currently the only two states that prohibit the inclusion of gag clauses in contracts.
The “Right to Yelp Bill,” also called the Consumer Review Fairness Act, would ban gag clauses from business contracts, while the SPEAK FREE Act would allow consumers slapped with a lawsuit over an online review to dismiss the claims early on in court. But as the two bills, which have received bipartisan support, make their way through Congress, individual consumers are left to fend for themselves, with few legal precedents for such cases.
“We don’t have a lot of cases to point to so we don’t know how judges view them,” said Paul Levy, an attorney with Public Citizen and defense counsel in the Prestigious Pets case, told BuzzFeed News. “The question becomes did the person who signed the contract understand what they were giving away and did they understand they were giving away free speech? The second point is that it’s so unfair that it’s not able to be enforced.”
In two such cases, the suing companies never appeared in court to back up their claims. A Utah couple sued KlearGear in 2012, claiming they did not owe a debt for violating its terms of service by writing a negative review, but the company never appeared in court and couple received a default judgment including over $300,000 in damages. In 2014, a Wisconsin woman a lawsuit against Accessory Outlet after they demanded she pay $250 for violating its terms of sale. The company never appeared in court to defend its claims.
In one case, a dentist, who faced a class-action lawsuit by former patients who signed a gag clause to receive care, moved abroad before she could defend her breach of contract claims in court in 2012.
“The harms generally aren’t harms that are enforced in court,” Scott Michelman, a senior staff attorney with the American Civil Liberties Union who has previously defended consumers in four gag-clause cases, told BuzzFeed News. “Instead they are the harms of the consumers that are bullied by corporations in taking down critical reviews and also the harms of consumers who are chilled by these clauses from expressing their opinions.”
Yelp has found itself at the center of a similar lawsuit in California where a personal injury law firm sued a former client after she posted three reviews criticizing the company. Hassell Law Group accused Ava Bird of defamation after she refused to remove “factual inaccuracies and defamatory remarks” from Yelp reviews she posted in January, February, and April 2013. A lower court sided with the law firm in 2014 and required Bird to take down the comments. When she refused, the court held Yelp responsible for removing the comments. In June, an appeals court agreed that Yelp must remove the comments, but the company has yet to comply, arguing it is a third party in the case.
Dayani has sued at least four previous patients over online reviews, according to a BuzzFeed review of New York County Civil court records through 2012. He sued a patient in 2012 for defamation and $75,000 in damages for writing a negative review on Yelp. The man removed the review after he was slapped with the lawsuit. Neither the patient nor Dayani appeared in court and the case was dismissed.
In June 2013, Dayani sued another patient claiming $50,000 in damages after he posted a review on Yelp complaining that the dentist had overcharged him for a root canal. The patient and Dayani settled the claim in August 2013.
Dayani sued a Yelp reviewer in November 2012 who he said used a fake name to post a negative review about her experience where she called him “rude, callous, abhorrent.” Dayani claimed the review amounted to $25,000 in damages. The defendant, “Jane Doe,” never responded to his complaint.
In June 2015, Dayani sued a woman who wrote a Google review claiming that he suggested she should undergo two root canals during a visit. She said she sought out a second opinion from another dentist who gave her a cavity filling and replaced a crown, which treated her tooth pain. “I am so happy that I didn’t get treated in this place,” she wrote. “If I did, I would have paid more than three thousand dollars for the treatment that I didn’t need at all.” Dayani is seeking a total of $100,000 from the woman for damages, according to court records.
Dayani does have a number of good reviews online from people who have described him as “thorough and knowledgeable.” “After doing a lot of research I chose Dr. Dayani,” said one Yelp reviewer called Eva H. “I couldn’t be happier. He is gentle, thorough, and highly professional. His staff is excellent. He is the best and I felt as relaxed as I will ever be at a dental appointment.”
Dayani insists that he only goes after online reviewers who post false information. He offered BuzzFeed News the opportunity to visit his office and review records related to the cases where he has sued patients to prove their allegations are false. BuzzFeed News declined.
He said he has adjusted his practice and opened a larger office after reading a number of negative reviews, including an emergency patient who complained in a one-star Google review about a long wait time at his office. However, the review does not appear to be online anymore.
When asked if he believes the lawsuits escalate a situation that could be resolved through other means than litigation, he insisted that he believes in free speech but draws the line at falsehoods. “When somebody writes lies about you with intent to deliver a damage to you and livelihood, that is defamatory,” he said. “I’m not Halliburton. A lie can do tremendous damage and can come at the expense of doctors and staff.” “If there are people out there doing it out of spite and not willing to correct a known lie, let an impartial judge decide,” he added. “I’m encouraging anyone to write a comment they think is correct and justifiable.”
Dayani and Rohs are scheduled to appear in court on Nov. 30.
SEPTEMBER 24, 2014
IN THE SUPREME COURT OF THE STATE OF OREGON
CAROL C. NEUMANN and DANCING DEER MOUNTAIN, LLC, an Oregon Domestic Limited Liability Company, Plaintiffs-Appellants, Cross-Respondents, Respondents on Review
CHRISTOPHER LILES, Defendant-Respondent, Cross-Appellant, Petitioner on Review
Lane County Circuit Court
Court of Appeals A149982
Supreme Court S062575
BRIEF OF AMICUS CURIAE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS IN SUPPORT OF PETITION FOR REVIEW. AMICUS CURIAE INTENDS TO FILE A BRIEF ON THE MERITS OF THE CASE ON REVIEW
Court of Appeals opinion dated: March 12, 2014
I. REVIEW OF THE DECISION IS IMPORTANT TO CLARIFY THE PROPER ANALYSIS OF OPINION IN DEFAMATION ACTIONS
The Reporters Committee for Freedom of the Press (“Reporters Committee”) urges this Court to take review of the Court of Appeals’ decision (the “Decision”) in order to resolve a conflict between state and federal courts in Oregon on an issue of fundamental importance to free speech: the proper analysis of opinion in a defamation action. The Decision’s narrow application of that doctrine is at odds with recent federal case law originating from Oregon, creating uncertainty that makes it not only difficult for journalists to report news to the public without increased fear of civil liability, but also harms the public’s ability to engage in public discourse online. The confusion the Decision creates concerning what may be stated in an online review, and what will expose a commenter to liability, could effectively limit free speech and thus have serious consequences for public debate.
The news media has a substantial interest in advocating for robust protections for statements of opinion, and in ensuring that the hyperbole commonly employed in the context of online speech is fully considered when analyzing whether challenged speech constitutes protected opinion. The right to express one’s opinion is a cornerstone of the promotion of public discourse and the free flow of ideas. The internet provides a wealth of opportunities for consumers to offer reviews of products and services, and for other consumers to make more informed decisions based on others’ opinions. Because the internet is a forum that thrives on immediate give-and-take, discourse naturally tends to be more hyperbolic, and it is vital for courts to take that context into account when determining whether online speech is actionable. It is crucial that Oregon courts not adopt an analysis that will limit the free flow of ideas and opinions in online forums.
II. REVIEW OF THE DECISION IS IMPORTANT TO CLARIFY THE PROPER ANALYSIS OF OPINION IN DEFAMATION
The Decision’s analysis places state and federal courts in Oregon at odds over the proper interpretation of the opinion doctrine under the First Amendment. This case thus presents an important opportunity for this Court to address the non-uniform application of the opinion doctrine in Oregon courtrooms.
The Court of Appeals rejected defendant Christopher Liles’s argument that numerous statements that he made in his review of Dancing Deer Mountain on the website Google.com were not actionable as opinion and/or hyperbolic statements, and therefore not defamatory. In particular, the Decision concludes that, in the context of an online review of a consumer’s business experience, the words “rude” and “crooked” to describe the plaintiff were defamatory.
See Neumann v. Liles, 261 Or App 567, 578-79 (2014). That analysis is difficult to reconcile with the Ninth Circuit’s recent opinion in Obsidian Finance Group, LLC v. Cox, 740 F3d 1284 (9th Cir 2014), which held (in an appeal from the District of Oregon) that the defendant’s use of such terms as “immoral,” “thugs,” and “evil doers” to describe the plaintiff on her website was not defamatory. Obsidian Finance, 740 F3d at 1294. The Ninth Circuit based its decision on the context of the statements, including the general tenor of the posts and the fact that they were made on an online blog in which the defendant used “extreme language,” indicating to the court that much of what the defendant wrote was hyperbole. See id. In short, the Ninth Circuit’s analysis factored in the realities of the online medium of communication in evaluating the context of the statements.
The Decision here, in contrast, rejects the argument that defendant’s challenged statements were hyperbole. Neumann v. Liles, 261 Or App at 579. The Decision reached that conclusion despite the fact that defendant titled his online review “Disaster!!!!! Find a different wedding venue” and included the statement “The worst wedding experience of my life!” Both statements signify that the defendant was using hyperbole of the type common in online forums. Yet the Decision concludes that the “bulk of the post is not rhetorical and factual,” apparently including the challenged statements “rude” and “crooked.” Neumann v. Liles, 261 Or App at 578-79. As discussed below, that analysis is flawed in that it fails to properly consider the context of the statements.
But in any event, just as significant for purposes of this Court’s review is the Decision’s suggestion that such an analysis may be of only limited relevance to Oregon courts, because it is based on “extra-jurisdictional authority” from the Ninth Circuit’s “First Amendment jurisprudence.” See 261 Or App at 579 (“To the extent that extra-jurisdictional authority informs our analysis, we disagree that defendant’s statements, as a whole, are hyperbolic”).1 The protection afforded to speech should not depend on whether a defendant is in a state or federal court in Oregon. The Decision’s analysis, however, suggests that reality.
It is not simply an issue of an inconsistency with Ninth Circuit authority. If this Court grants review, the Reporters Committee intends to file a brief addressing why binding United States Supreme Court precedent supports a more robust evaluation of context in determining whether a challenged statement is actionable, focusing on two broad principles reaffirmed by the United States Supreme Court in Milkovich v. Lorain Journal Co., 497 US 1 (1990): First, “a statement on matters of public concern must be provable as false before there can be liability.” Id. at 19-20 (citations omitted). And second, a statement is not defamatory if it “cannot ‘reasonably [be] interpreted as stating actual facts’ about an individual,” a requirement that the Court described as “provid[ing] assurance that public debate will not suffer for lack of ‘imaginative expression’ or the ‘rhetorical hyperbole’ which has traditionally added much to the discourse of our Nation.” Id. at 20 (citations omitted). The Reporters Committee intends to argue how these principles, and the case law on which they are based, support a fuller analysis – and a different result – than that in the Decision.
It was error for the Court of Appeals not to fully consider the context of the purportedly defamatory statements. The Reporters Committee urges this Court to grant review in this case to establish the framework for Oregon courts to consider that context in the future. That framework should provide that any evaluation of opinion or hyperbole in an online setting must include consideration of both the importance of contributing to a robust public discourse on issues of public concern as well as the more informal and hyperbolic context of online reviews.
Failure of the courts to take such context into account could result not only in the imposition of excessive liability on members of the public who choose to share their opinions online, but the chilling of this type of speech.
Online sites such as Yelp, TripAdvisor, and Google Plus provide public forums for consumers to post their opinions of service providers for other members of the public to read and use to make their own consumer choices. Such sites are invaluable resources for today’s average consumer, who can now look to innumerable reviews available online to decide where to eat, which doctor to visit, or how to choose a provider of virtually any service imaginable. Sharing information and views on these services is unquestionably a matter of public interest and concern. It is critical that consumers be able to post reviews without fear that their negative opinions and frequent hyperbole will result in a lawsuit, and a potentially staggering amount of financial penalties.
This emphasis on the statement’s context is particularly applicable in cases involving online consumer reviews. Such reviews must be evaluated in a way that recognizes their informality of expression and tendency toward hyperbole. Like online message boards, review websites encourage a “looser, more relaxed communication style,” allowing users to “engage freely in informal debate and criticism.” Krinsky v. Doe, 159 Cal App 4th 1154, 1162-63 (Cal Ct App 2008). In this setting, “[h]yperbole and exaggeration are common, and ‘venting’ is at least as common as careful and considered argumentation.” Larissa Barnett Lidsky, Silencing John Doe: Defamation & Discourse in Cyberspace, 49 Duke LJ 855, 863 (2000). Online forums for consumer reviews—which are in many ways designed for “venting”—encourage posters to use a different tone, and that is the context in which writers and readers understand the reviews.
The question of how to evaluate online review opinions in defamation actions is one that many courts around the country are facing. As these suits For example, the United States Court of Appeals for the Sixth Circuit recently held that a TripAdvisor ranking of the “Dirtiest Hotels” on their website was protected, non-actionable opinion because the tone of the list made clear that actual facts were not being stated. See Seaton v. TripAdvisor LLC, 728 F3d 592 (6th Cir 2013); see also, e.g., McKee v. Laurion, 825 NW2d 725 (Minn 2013) (dismissing doctor’s defamation claims against patient’s son who wrote negative reviews on rate-your-doctor websites about the care his father received) The Reporters Committee urges this Court to take review and establish that framework for Oregon courts.
For the foregoing reasons, the Reporters Committee urges this Court to accept review of the Decision. If such review is granted, the Reporters Committee expects to file a brief on the merits.
DATED this 24th day of September, 2014.
June 24, 2015
Five Key Social Media Questions All Health Care Employers Should Consider:
Question #5: How Can We Protect The Online Image Of Our Organization?
Sten Hoidal, Fredrikson & Byron, P. A.
We have all read, relied upon or at least considered online reviews … you know, the ratings, stars or “opinions” that represent a person’s experience with a product or service. Healthcare consumers frequently use these reviews to evaluate which hospital or clinic to use and which provider to see. Job applicants also use their sites in evaluating employment opportunities. Many times the online review process will actually help, not harm, health care employers. At other times, unfortunately, health care employers will be faced with negative online reviews.
Let’s take a hypothetical. A former employee (or patient) anonymously posts false and misleading information about one of your physicians on Vitals. The posts relate to allegedly disrespectful treatment of employees, poor patient care, and poor bedside manner. You investigate and confirm that these statements are not true. But what are your options?
You certainly have the right to respond to any negative online post. For example, Glassdoor provides companies the opportunity to post “their side of the story.” But before you decide to react to a bad online review, we recommend that you step back and think about the following:
Does the post contain HIPAA-protected information, or other sensitive, confidential information? If the answer is yes, then seek legal counsel as you may have a legal obligation to take action (not just to respond to the negative review).
Is the post believable – that is, will it really hurt your organization? And does the post violate any laws? Many sites won’t take down posts unless you can show that there is a violation of law (i.e. release of HIPAA-protected information), or the posts are threatening (think violent) to a particular person or entity, or the like.
Does the post rise to the level of defamation? If the posts are clearly false statements of fact (not opinion) and are likely to harm your business reputation, then seek legal counsel – but remember, defamation claims can be long fought battles and often hard to win.
For example, in McKee vs. Laurion, Dr. McKee sued Laurion (the son of one of his patients) for his online posts on a “rate your doctor” site. Following several years of court action, the Minnesota Supreme Court concluded that none of the statements posted online by the patient’s son, Laurion, regarding Dr. McKee’s care amounted to defamation. The court dismissed the defamation lawsuit altogether and Dr. McKee gained nothing from bringing the legal action.
Keeping in mind the uphill battle of a defamation lawsuit, what are some other options?
If the post does not reveal patient information or other confidential business information, does not implicate any laws and is not violent/threatening, you may want to stop and consider whether any response at all is warranted. Sometimes simply ignoring the post is the better course of action so as not to escalate the situation or draw greater attention to it.
If ignoring the post altogether seems like a bad idea – and you feel you have a good story to tell – then consider writing a neutral, objective response. While this might prompt your anonymous poster to rage on, it also might help to even the playing field and show the reading public that the poster’s statements may not be legitimate.
Or, consider options for increasing your organization’s positive online image. For example, create (and maintain) a Google Plus Account and write about all of the great things your organization does! Maintain a Facebook or LinkedIn page for the organization, providing general guidance and educational information, not medical advice, on how patients can improve their health, or feature “star” employees (with their consent of course).
Using social media as a platform to highlight your organization’s accomplishments, community involvement, and areas of expertise will hopefully leave the online public with favorable impressions of your organization while minimizing the impact of the occasional negative review.
“Duluth Doctor’s Claim For Defamation Based On An Online Review Reaches The Minnesota Supreme Court“
Cassie Batchelder, Silha Research Assistant
Silha Center For The Study Of Media Ethics And Law
University Of Minnesota School Of Journalism And Mass Communication
Displeased by the treatment his father received in the hospital, Dennis Laurion took his complaint online. Laurion wrote a review of Dr. David McKee, a neurologist who treated his father at St. Luke’s Hospital in Duluth, Minnesota. following a stroke, on a rate-your-doctor website.
Laurion wrote in the online review that his family was displeased with McKee’s “bedside manner.” The review read, “When I mentioned Dr. McKee’s name to a friend who is a nurse, she said, ‘Dr. McKee is a real tool!’” according to a March 24, 2012 story in the Minneapolis Star Tribune. Laurion’s complaint focused on Dr. McKee’s “body language and comments” when he treated Laurion’s father on April 20, 2010.
McKee reportedly read the comments online after another patient alerted him to their existence. McKee responded by filing a lawsuit for defamation and sought more than $50,000 in damages in district court in Duluth. He claimed he has spent $7,000 attempting to eliminate the comments from the Internet. “It’s like removing graffiti from a wall,” McKee’s lawyer, Marshall Tanick, a partner with Mansfield, Tanick & Cohen, P.A. told the Star Tribune. He argues Laurion has continued to distort the facts of the situation, both online and in complaints he has filed with various medical groups since the original online complaint. “He put words in the doctor’s mouth,” and made McKee “sound uncaring, unsympathetic or just stupid.”
In St. Louis County District Court in Duluth, District Judge Eric Hylden agreed with Laurion, writing, “The statements in this case appear 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.” Hylden dismissed McKee’s lawsuit in April 2011. The Minnesota Court of Appeals, however, disagreed. The court reversed and remanded the dismissal in January 2012, finding that some of Laurion’s comments could subject him to liability for defamation.
Laurion appealed the decision to reverse and remand the case to the Minnesota Supreme Court, which heard arguments on September 4, 2012. The issue in McKee’s appeal is whether statements Laurion published describing McKee’s treatment of his father are not pure opinion but, rather, factual assertions capable of being proven true or false. This is the standard the United States Supreme Court set forth in Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), for what establishes opinion protected by the First Amendment.
“I argued that the posting to a website is part of the context that colors or shapes what Mr. Laurion was trying to do, and the essential nature of one of these websites is to provide subjective feedback and people get lots of subjective feedback from different perspectives and from different experiences,” John Kelly, an attorney with Hanft Fride, P.A., who represented Laurion before the Minnesota Supreme Court, told the Duluth News Tribune for a September 5, 2012 story.
“We argued to the court that Mr. Laurion published both on the Internet and to approximately 20 others, including medical organizations, false statements about Dr. McKee that disparaged his professional abilities and hurt his reputation,” Tanick, who also represented McKee before the Minnesota Supreme Court, told the Duluth News Tribune. “We asked the court to affirm the decision of the Court of Appeals so that Dr. McKee has the opportunity to present this to a jury and get his day in court.”
Lawsuits like McKee’s are rare, Eric Goldman, professor at Santa Clara University School of Law told the Star Tribune. However, Goldman said “they’ve been popping up around the country as patient review sites such as Vitals and Rate Your Doctor have flourished.” Lawsuits claiming defamation are “kind of the nuclear option,” Goldman said. “It’s the thing that you go to when everything else has failed.” Goldman tracks lawsuits healthcare providers file against online reviewers, and told the Reporters Committee for Freedom of the Press (RCFP) for the Fall 2012 issue of The News Media and The Law that, of the 28 lawsuits he has tracked, courts dismissed 16 of them, six settled, and the other six are still pending.
In one such suit, an Arizona cosmetic surgeon, Dr. Albert Carlotti III, won a $12 million verdict against a former patient in February 2012, according to a Feb. 20, 2012 post by the American Medical Association on its website. The patient wrote reviews on numerous websites and created her own website stating Carlotti disfigured her face, was not board-certified, and was being investigated by the state medical board, although no records of such investigations exist; the patient is appealing the judgment.
Online reviews of other businesses and services have resulted in lawsuits alleging defamation around the country, as well. For example, an owner of a Sarasota, Fla. computer graphics company sued a reviewer after the reviewer wrote a negative, one-star review on Yelp.com, a website that allows anyone to post reviews of a wide range of businesses. The review called the owner “a scam liar and complete weirdo,” according to a Dec. 18, 2011 report in the Sarasota Herald Tribune. A dentist in Foster City, California, filed a similar suit in Santa Clara County Superior Court in 2008 after a patient’s parents posted a negative review on Yelp.com, according to a Jan. 13, 2009 story in the San Francisco Chronicle.
Because online reviewers are subject to defamation lawsuits, Rob Heverly, assistant professor of law at Albany Law School of Union University, wrote a guide for online reviewers on Madisonian.net, a blog focused on law, technology, and culture, which features written contributions from many law professors, on April 13, 2010. “The lesson here is straight forward: if you are making statements online about another person, a business or a service, do not embellish beyond what you can show factually,” Heverly wrote. “Statements of opinion were, in the past, considered absolutely protected, but the U.S. Supreme Court has clarified that opinion-statements backed by implied facts will be actionable where the facts implied are false.” The Minnesota Supreme Court is expected to release its decision in early summer.
NOVEMBER 1, 2011
“Can One Bad Comment Or Online Review Ruin Your Practice?”
The Doctors Company
Unhappy patients rarely retract derogatory or even defamatory statements made online. Should you fight the commenters?
Fighting defamation, at least in some cases, might make the situation worse. Even if disgruntled commenters desist, the defamation is in the public domain and will circulate again and again.
Consider the following recent court case: A neurologist in Duluth, Minn., sued a family member of an unhappy patient for defamation because of a negative review written on a third-party website. The media picked up the story, multiplying the negative aspects of the case and presenting additional facts that were not supportive of the physician’s office staff. Ultimately, the case was dismissed by the judge, who declared that “the court does not find defamatory meaning, but rather a sometimes emotional discussion of the issues.”
Fighting commenters on an Internet review site can escalate a poor interaction or outcome into a full-blown complaint to the state medical board — as it did in Texas, where anonymous commenters and complainants led to medical board actions. In response, physicians banded together and pushed the passage of a law that prevents the Texas Medical Board from considering anonymous complaints against physicians for disciplinary actions. Other states may take up the issue as well.
If you should receive a negative or unfair comment or review online, avoid responding to the post. Review the comment from the point of view of a patient. Can any information shared in the comment help improve the practice? Trust that established, potential, or new patients will use their own intelligence and judgment when reading the post.
To help maintain positive relationships with your patients, consider the following ideas:
Trust your patients and your practice. Don’t have patients sign “gag orders” preventing them from commenting about their experience. This puts a therapeutic relationship onto a potentially adversarial footing.
Give patients a direct line to the practice through patient satisfaction surveys. Discuss the results in regular staff meetings and address any patient concerns.
Consider sending a letter to new patients after their first visit, thanking them for choosing the practice and stating that you hope to see them in the future.
Encourage satisfied patients to post their experience as well, to help balance the reviews.
NOVEMBER 19, 2011
“Rating, Ranking & Reviewing: Everyone Is A Critic”
Internet Globalization Class
If the Web and online social networks have “democratized” many functions in society, one of them is rating, ranking and reviewing — of everything from consumer products, songs and movies to university professors and doctors. This function of qualitative assessment was formerly exclusive to “professional” critics such as journalists, or in the case of professors and doctors was conducted by professional peers and bureaucratic hierarchies. On the Web, however, everyone can be a critic.
What is is behind this phenomenon? Thanks to the Web, there are no more barriers for anyone who wants to rate, rank or review something or someone. There are now many websites devoted to rating, ranking and reviewing, such as Yelp and Trip Advisor. Other sites such as Amazon feature rating, ranking and reviewing features. Many people now trust these sites more than they do “professional” critics. Indeed, the democratization of rating, ranking and reviewing has had a major impact on the commercial success of products — and even the reputation of professors and doctors.
For a background article on the role of online social networks in this phenomenon, see this piece in Time magazine, When Everyone’s a Critic, and this article the Guardian with a similar title, “Everyone’s a Critic Now“.
Online rating and ranking has become so widespread that sites like TripAdvisor and Yelp are now indispensable tools for planning everything from a night out for a meal and movie to a holiday in an exotic location. As a Harvard study found, positive Yelp reviews definitely boost business for local restaurants. Yelp has been controversial, however, sometimes accused of charging businesses for playing up positive reviews and playing down negative reviews.
Controversy has dogged other rating and review sites like TripAdvisor and Amazon. TripAdvisor has been accused of featuring “fake” reviews. In the UK, the site has even been threatened with investigation over these practices. Amazon’s reviews have also been called in to question, according to an article, “What Shoppers Don’t Realize About Amazon’s Reviews“.
As noted above, university professors are now rated by students on RateMyProfessors.com, a site whose popularity does not always please the academic profession. RateMyProfessors.com is controversial due to rating criteria like physical attractiveness (“Chilli Pepper”) and easiness, but the site is nonetheless used by millions of students not only for entertainment but also to select their courses.
In another area, patients also rate and review doctors online — and not always to the liking of doctors themselves. Patient criticism can indeed result in controversy, as revealed in this article, A Physician Review Gone Wrong.
OCTOBER 8, 2011
“For What It’s Worth: Doctor Sues Patient”
Medical malpractice suits are common (even if they are not as common as some doctors fear). But a suit by a doctor against a patient? That would seem to fit the ancient definition of news. Yet I hadn’t heard of Dr. David McKee’s defamation suit against Dennis Laurion before I received an email about the case.
Actually, Dennis Laurion was not McKee’s patient. Dr. McKee, a neurologist, treated Dennis’s father, Kenneth, a World War II vet, who suffered a hemorrhagic stroke in April 2010. The younger Mr. Laurion was not at all happy with how Dr. McKee treated his father. The elder Mr. Laurion survived, but his son felt that Dr. McKee failed to accord his father appropriate dignity and respect. He didn’t sue for malpractice; instead, he blasted the doctor on a number of ratings sites.
There are ratings services for every business and profession out here on the Internet (including sites that rate lawyers). I haven’t used the Internet to check out a doctor since… let’s see… yesterday. Usually, though, I’m only looking for confirmation of the spelling of the doctor’s name, or to verify an address or phone number. I personally don’t put much stock in so-called “reviews.” On any random site, some reviews will seem as if they’d been written by the doctor’s mother. Others read as if they’d been written by the doctor’s bitter ex-spouse.
Nevertheless (and understandably), doctors are a bit sensitive about how they are portrayed online. See, “Why doctors hate online reviews,” by Dr. Rahul Parikh, in the “Pop Rx” column on Salon.com, September 5, 2011.
There are services that promise to provide some protection to the small businessperson who suffers the slings and arrows of outrageous Internet attacks. Reputation Defender is one product that advertises heavily in this market (and the website seems to pitch at doctors in particular); TheReviewBuster.com is another one I found in a quick search today. Public relations firms would, presumably, be able to offer some assistance to the aggrieved professional in straits similar to those in which Dr. McKee apparently found himself.
But Dr. McKee decided to sue instead.
The trial court entered summary judgment against McKee. The various sources I’ve consulted today dispute whether Dennis Laurion voluntarily removed his comments from ratings sites when Dr. McKee asked. Depending on the point of view of the poster, McKee’s suit was either an honorable response to vicious online attacks or a callous attempt to stifle the Laurion family’s free speech rights. And there may have been a SLAPP angle, too: In addition to posting negative reviews, Dennis Laurion made a complaint to the hospital where Dr. McKee worked and to the Minnesota Board of Medical Practice. Supposedly, just before the summary judgment motion was resolved against McKee, a hundred new negative reviews appeared on line about Dr. McKee. McKee’s lawyer blamed Laurion; Laurion denied it. I have to wonder whether these additional postings might have been a product of the Streisand Effect.
In the course of today’s efforts, I do not claim to have peeled through the many layers of conflicting opinion to reveal any hard kernel of truth about this case. The headline on this post, however, “Doctor sues patient’s family — and everybody loses” (HealthExecNews.com, May 10, 2011), struck me as probably accurate. I can report that McKee’s appeal is scheduled for a hearing before the Minnesota Court of Appeals, in Duluth, on November 10.
Not knowing the actual facts and being unschooled in Minnesota law (and being unlicensed in that state), I venture no prediction about the outcome of the doctor’s appeal.
But the question arises how a similar suit might fare in Illinois. Would our Citizen Participation Act (735 ILCS §110/1 et seq.) apply? Shoreline Towers Condominium Association v. Gassman, 404 Ill.App.3d 1013, 936 N.E.2d 1198 (1st Dist. 2010), may provide some guidance. Ms. Gassman kept installing a mezuzah outside the front door of her condominium; the homeowners’ association kept taking it down, insisting it was prohibited by a policy that prohibited “[m]ats, boots, shoes, carts or objects of any sort… outside Unit doors.” Gassman, a lawyer, initiated a raft of lawsuits and religious discrimination complaints with a number of state agencies, challenging the association’s ban.
The association changed its policy. And, for good measure, the City of Chicago passed an ordinance and the State of Illinois passed a law prohibiting others from attempting similar bans.
But relations between Gassman and the Association had soured in the meantime to the point where all sorts of accusations were made by one side and the other. Ultimately the Association filed a 10-count complaint against Gassman alleging a variety of theories. Gassman moved to dismiss all counts under the Citizen Participation Act (or, as it also sometimes called, the anti-SLAPP Act). The trial court agreed that the Act applied to some, but not all of the counts.
On appeal, the Association argued that the Act shouldn’t have applied to any of its claims (404 Ill.App.3d at 1020): Shoreline argues that SLAPP suits are “lawsuits brought to silence public outcry regarding issues of significant public concern,” and it characterizes SLAPP suits as actions brought against “a person or group [who] was using a public forum to voice an opinion regarding a public issue.” It suggests that “[i]t could hardly be argued that [Gassman’s] campaign of defamation, tortious interference, harassment, intimidation, and personal attacks, as to the affairs of a private condominium association, and against the members of the Board personally, rises to the level of an ongoing attempt to petition a governmental entity for public redress.”
But the Appellate Court disagreed (404 Ill.App.3d at 1021-22):
[T]he Act does not protect only public outcry regarding matters of significant public concern, nor does it require the use of a public forum in order for a citizen to be protected. Rather, it protects from liability all constitutional forms of expression and participation in pursuit of favorable government action.
To the extent, then, that our hypothetical Illinois doctor’s suit might be seen as retaliation for complaints to licensing authorities, my suspicion is that an Illinois court might find that the anti-SLAPP statute applicable. Maybe.
But the anti-SLAPP statute provides no license for Internet trolls out to sabotage a professional’s reputation.
MARCH 14, 2011
“Libel Abounds, But Libel Lawsuits Are Rare.”
Kevin Giles, STAR TRIBUNE
One Facebook user, angry over a dispute with a neighbor, ridicules her online as a thief and a liar. On Twitter, someone accuses a murder suspect of being a killer. A blogger discloses sensitive details about a political candidate’s personal life.
In Minnesota, and everywhere else, a perplexing phenomenon has emerged as millions of people have their say in social media. In today’s world, libelous online comments are rampant – and yet with the notable exception of the “Johnny Northside” blog case, very few people have filed lawsuits over reckless and untrue statements.
Court actions involving users on youth-dominated social media remain surprisingly low, suggesting a new outspoken culture that’s more tolerant of lies, rude behavior and character assassination.
“They’ve come to accept this kind of hurly-burly Internet conversation as normal,” said Mark Anfinson, a Minneapolis media attorney. “There are a lot of folks out there who never had a voice before. They now talk in a context just like in a bar or across the backyard fence.”
While loose lips have become common in social media exchanges, consequences loom for people who launch false attacks that threaten to inflict serious harm on someone’s reputation. Libel cases, often driven by anger and a quest for vengeance, can cost tens of thousands of dollars in attorney fees and result in unflattering publicity.
In Minnesota, only a handful of people have been sued for comments they made online and even fewer cases go to trial. Reasons for this, experts say, include:
- Attorneys can’t sue Internet companies — who have the deep pockets — for what individual users say because of protection from the federal Communications Decency Act.
- A blurring between fact and fiction continues unabated on Internet sites.
- Many states have no laws to address the endless ways people fabricate information.
- Many online postings are never seen in the first place. Unlike permanent comments in newspapers, postings can slide past without being noticed — but whether they ever disappear from databases remains in dispute.
- Online postings, depending on how they’re delivered, can have narrow audiences.
Ordinary folks are held to the same legal standards as news reporters and anyone else who makes written statements in public, but few seem to know that – or care.
“People do and say things online that they aren’t likely to do in the physical world,” said David Ardia, director of the Citizen Media Law Project at Harvard Law School in Boston. Libel suits related to social media are rare nationwide, he said, in part because users can fire off instant replies to nasty comments. “There’s this feeling of engagement that people have available to them, tools they didn’t have in the past,” Ardia said.
In Minnesota, social media engages millions of residents who post comments on Facebook, My Space, Twitter, personal blogs and elsewhere. Some are citizen journalists, some are back porch commentators, but most are just chatterers who want a say in the world around them.
An estimated 3 million Minnesotans sign onto Facebook alone, although actual use is difficult to verify. Many offending comments relate to politics, religion and interpersonal relationships — topics sure to inspire arguments in face-to-face conversations.
Social media, Ardia said, has made the world into one big chat with everyone speaking at once. The cacophony of voices seems to race at Mach speed, with new comments continually burying old ones, but experts say it’s a mistake to presume libelous comments will disappear entirely.
“The rule is you’re responsible for what you say,” said Minneapolis attorney Leita Walker. Whether posting on Facebook, writing a letter to the editor of a newspaper, blogging or otherwise expressing an opinion, “you strive to be accurate and fair and make sure what you write is true. You don’t want to repeat a rumor to find out the rumor isn’t true.”
This past week, a challenge over statements that Minneapolis blogger Johnny Northside made in 2009 led to a jury determination Friday that he must pay $60,000 in damages. Northside, whose real name is John Hoff, was sued by Jerry Moore, former director of the Jordan Area Community Council. Northside wrote about Moore’s associations with a major mortgage fraud case that sent one man to prison for 16 years. Moore was never charged in the case.
Moore said posts by Hoff or anonymous people caused the University of Minnesota to fire him. In reply, Hoff defended his comments as protected speech, but the jurors disagreed.
Suits against bloggers — often known as “citizen journalists” — won’t make much money for anyone seeking damages, said Jane Kirtley, a University of Minnesota professor of media law and ethics. “A lot of people recognize that these unaffiliated bloggers don’t have a lot of financial resources.”
That’s another reason many victims don’t sue. Libel also can be hard to prove. Plaintiffs have to show damage to their reputations.
The motivation, then, for filing suit? Anger, outrage, a sense of being violated in a public way among friends and neighbors.
From the opposing point of view, a blogger might embrace free speech protections under the First Amendment. Or, more commonly, a caustic-tongued user on Facebook or My Space doesn’t know the law and doesn’t care.
Anfinson, who teaches a media law course at the University of St. Thomas, said younger people today worry far less about libeling someone because of a higher tolerance for online name-calling that older readers of newspapers won’t accept.
To younger people, Ardia said, suing somebody seems like a heavy-handed, disproportionate way to respond to offending comments. But he also thinks it’s hard to track much of the underlying turmoil. Many people, instead of hiring attorneys, will send threatening letters and e-mails to people they think have done them harm, demanding that the offensive post be removed. “The surface might seem very calm,” Ardia said, “but below it there might be a lot more going on than we’re aware of.”
Kevin Giles • 651-735-3342
“Online Libel Claims Abound”
June D. Bell, CALIFORNIA LAWYER
Since its founding in 2005, Yelp.com—a website where consumers review everything from cappuccinos to car mechanics—has published more than 5 million write-ups of local merchants. But in the past twelve months its online reviews have also triggered at least three defamation lawsuits.
Positive reviews can attract new customers—but negative reviews may inspire the subjects to head to court. One suit, waged by a chiropractor who was poorly reviewed on Yelp, settled in mediation earlier this year, and a second suit, filed last year by a pediatric dentist, is pending on appeal. A third case, also involving a dentist, settled last year after a superior court judge in San Francisco, where Yelp is based, granted the defendant’s anti-SLAPP (Strategic Lawsuits Against Public Participation) motion. California attorneys, meanwhile, say they’re fielding an increasing number of calls from angry business owners seeking recourse.
“It shouldn’t come as a surprise, due to the sheer increase in popularity of these sites in the past year,” says Matt Zimmerman, a senior staff attorney at the Electronic Frontier Foundation, a nonprofit civil liberties law firm in San Francisco that specializes in high-tech legal issues.
Suing the host sites for their user-generated content is, of course, fruitless: Section 230 of the federal Communications Decency Act (CDA) shields the sites from defamation suits as long as they didn’t create the objectionable materials.
The aggrieved parties, however, can and do go after the reviewers (known as posters) who publish their opinions online. Legally, posters have plenty of leeway – as long as they don’t cross the line into defamation, says Karl Kronenberger, a partner at San Francisco’s Kronenberger Burgoyne who represents businesses in such matters. And California’s anti-SLAPP law shields people who speak out on issues of public interest—a protection that broadly extends to consumer matters.
In addition to being difficult to prove and win, allegations of online defamation can also backfire: A stray negative posting may fade into obscurity, but a lawsuit over it can provoke exactly the kind of negative publicity that business owners are desperate to avoid, notes Mark Lemley, who teaches Internet law at Stanford Law School and is a partner at Durie Tangri Lemley Roberts & Kent in San Francisco.
This is a key reason many experts advise that, whenever possible, attorneys should help their clients settle such matters. In fact, Yelp is among the sites that try to mediate between merchants and consumers by hooking them up to smooth out their differences. And in April, Yelp followed sites such as Trip Advisor and eBay by letting merchants respond online to negative feedback.
In the meantime, the smartest strategy for merchants who’ve suffered a withering critique may be to rally patrons to post rave reviews. “The answer to negative speech, especially online, isn’t to try to silence people,” Zimmerman says, “but to encourage more speech.”