January 5, 2010
The Complex Legal And Marketing Challenges Dentists Face As They Navigate The New Frontiers Of Social Media
San Francisco dentist Gelareh Rahbar, D.D.S., is suing two patients for their harsh comments about her on the consumer review Web site Yelp.com.
One reviewer, Jennifer Batoon, accuses Dr. Rahbar of placing an oversize crown where only an inlay was needed. “She didn’t get the job done right,” wrote Batoon. “I’m forced to carry around these sad reminders of her shoddy work my whole life.”
A second reviewer, Stevonne R. (whose last name was identified by Dr. Rahbar’s attorney as Ratliff), writes that the “painful, costly deep tissue cleaning they talked me into was unnecessary and she was simply trying to get into my pockets.” “I’ve suffered tremendously emotionally because of this.”
The cases illustrate the complex legal and marketing challenges dentists face as they navigate the new frontiers of social media. Comments that might once have been aired briefly across backyard fences or around office water coolers are now publicly and indefinitely on display.
Dr. Rahbar denies the allegations and contends that both reviewers are lying about her in retaliation because she sent their overdue accounts to collection agencies. Most of the other 41 patients who have reviewed Dr. Rahbar on Yelp give her good marks; her cumulative rating is four stars out of a possible five. But she says these criticisms were devastating. “I’ve suffered tremendously emotionally because of this,” she told DrBicuspid.com. “I have nothing against online review sites, but I don’t agree with defamatory speech.” She said Yelp advertising representatives had approached her with an offer to prominently display a favorable review in exchange for a monthly fee, an offer that felt to her “like extortion.”
Dr. Rahbar faces tough legal hurdles in her quest for vindication. Yelp is protected by the U.S. Communications Decency Act of 1996, which holds operators of Web sites harmless for statements posted on their sites by third parties. Yvonne Wong, D.D.S., a Foster City dentist, dropped her suit against Yelp last year after becoming aware of this law. Dr. Rahbar has not sued Yelp.com itself.
And in pursuing their reviewers, both dentists must overcome a second barrier. California and some other states have prohibited lawsuits aimed simply at harassing or intimidating people who want to exercise legitimate free speech. California’s laws governing strategic lawsuits against public participation (SLAPP) give judges the right to dismiss lawsuits that don’t seem likely to prevail on their merits.
A public interest law firm, the California Anti-SLAPP Project, is providing a pro-bono defense of both Batoon and Dr. Wong’s reviewers, Tai Jing and Jia Ma, arguing that their Yelp reviews are protected by the SLAPP law.
In the first round, the California Superior Court in Santa Clara ruled that Dr. Wong’s case should not be dismissed on SLAPP grounds, but Tai Jing and Jia Ma have appealed.
Even if Dr. Wong and Dr. Rahbar ultimately prevail on the SLAPP question, their battles could begin anew with the effort to prove that the reviewers’ comments meet the legal definition of defamation; they must show that the statements were false and that they were injured by them.
The California Superior Court in San Francisco has tentatively upheld Batoon’s SLAPP defense, but Dr. Rahbar’s attorney, Eric Nordskog of San Francisco, is asking for reconsideration on procedural grounds.
Nordskog said Ratliff has not responded to the complaint, so he expects a judgment against her. On Yelp, Stevonne R. claims to have paid her bill in full and accuses Dr. Rahbar of sending her account to a collections agency in retaliation for her negative review.
DrBicuspid.com could not reach either Batoon or Ratliff for comment. In a statement filed with the court by Batoon on her own behalf, she argued that her online review was truthful. “Defendant will need to obtain additional dentistry work in order to correct work done by Plaintiff on a simple filling,” she wrote.
Regardless of the legal outcome, the cases highlight the frustration dentists and business owners sometimes feel when faced with online reviews. Like Dr. Rahbar, many have complained that Yelp seems to be asking them for money to influence the way reviews are displayed.
“Anyone can log on anonymously and say stuff that’s totally not true,” said Dr. Rahbar. Yelp has become so popular in its headquarter city, San Francisco, and other big cities that dentists can’t ignore it, she said. Dr. Rahbar herself paid Yelp $200 a month in 2004 and 2005 for online advertising. She canceled because she was unhappy with reviews she considered defamatory, and after that, her Yelp reviews got even worse, she said. In addition, positive reviews of her disappeared from the site and negative ones became more prominent, she said.
Late last year, she yielded to the solicitation from the site’s ad sales team and is now paying $500 a month. The principle advantage she gains is the right to choose a review that is displayed at the top of the results when someone searches under her name on Yelp, said Dr. Rahbar. She explains that this is important because the first few lines of this review typically appear in Google searches under her name.
Contacted by DrBicuspid.com, Yelp spokesperson Stephanie Ichinose acknowledged that advertisers can select a review that appears at the top of their search page. But she noted that the review is identified as “One of the Business’ Favorite Reviews” and that the statement “This business is a Yelp sponsor” appears on the review. Other than selecting this one review, businesses can’t influence the order of reviews or which ones disappear from the site, no matter how much they pay, she said.
So what does influence the display of reviews? The order is affected by how recently the review is posted and by the votes of users (users can indicate whether a review is “useful,” “funny,” or “cool”). But the order of reviews is also affected by “a variety of other factors,” said Ichinose. “We don’t disclose the specifics because then it starts to open up the gates to how to game the system.”
Business owners sometimes solicit favorable reviews or even hire people to write them, according to Yelp CEO Jeremy Stoppelman. In fact, in her review of Dr. Rahbar, Batoon accuses her of posting “dummy” positive reviews of her own practice.
For the same reasons, Yelp also won’t disclose the factors that determine what reviews it deletes from the page associated with a business. It is possible for users and business owners to report reviews that don’t meet the site’s guidelines, such as reviews by people with conflicts of interest or personal attacks. But other factors also play a role. “The algorithm is looking for patterns of abuse,” said Ichinose. “I can’t say very much more.”
She said the site does not attempt to verify the accuracy of the millions of reviews posted. She also noted that “we’re not a site that’s about anonymous reviews” because you can look at the profiles of reviewers to see how often they have posted and what other reviews they’ve written, getting a sense of their tastes and personality. “The more you use it, the more you appreciate the community.”
So what should dentists and other business owners do if they feel they’ve been libeled? They can contact the reviewers privately though Yelp. Yelp advises a conciliatory “let-me-see-how-I-can-fix-it” letter that might coax the reviewer to update to a more positive review.
Dentists can also opt to respond publicly (as Dr. Rahbar has to some of her critics) in an attempt to set the record straight, or to file a lawsuit, which even Nordskog warns is an expensive option, unlikely to produce a financial payoff. (He suggests that small claims court might be more cost-effective, especially in localities where mediation services are offered.) Or they can pay to get their favorite review at the top of the order.