March 19, 2013
“When Online Reviews Lead To Lawsuits”
Ken Paulson, Associated Press
Hotels, doctor and other ratings are controversial, but courts view most as free speech.
• Judges weigh free speech vs. reckless comments with devastating professional consequences.
• Comments that are strictly opinion or hyperbole are often protected.
• Unsupported statements of fact can lead to liability.
When a Minnesota man felt his family was treated shabbily by a neurologist, he made sure the world knew about it.
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. It was the latest in a series of fascinating cases in which judges struggle with balancing freedom of speech with the devastating professional consequences of reckless or unsubstantiated reviews.
A woman in Washington, D.C., is being sued after giving a contractor an F rating on Angie’s List and hinting that he might have stolen some jewelry. A judge ruled in January that the strongly negative review could remain online, but that the libel case could proceed.
Another Washington woman is being sued by a dermatologist after she claimed on Yelp that he scarred her face. The doctor contends the scar was pre-existing.
In 2012, a U.S. District Court threw out a lawsuit filed by a Pigeon Forge, Tenn., hotel after Trip Advisor called it “the dirtiest hotel in America” based on user reviews. Remarkably, the court concluded that the “dirty” designation wasn’t defamatory.
Last year, the Beaverton (Ore.) Grace Bible Church showed the limits of its grace, suing a former member who criticized the church online as being “creepy” and guilty of “spiritual abuse.” A judge dismissed the suit, saying these opinions were protected as free speech.
In 2011, two Scottsdale, Ariz., surgeons were awarded $12 million by a jury after a patient created a website to accuse the doctors of poor care.
Libel cases on rise
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. The difference: Lawyers can document they are not negligent, but none of us can really prove we’re not a clown.
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. Imagine the benefits of a site that posted both constructive and critical comments and yet set standards that would weed out the intemperate in favor of the informative. Now that would be a real tool.
Ken Paulson is president and CEO of the First Amendment Center in Nashville, a former editor of USA TODAY and a member of USA TODAY’s Board of Contributors. In addition to its own editorials, USA TODAY publishes diverse opinions from outside writers, including our Board of Contributors.