Thursday, March 21, 2013

Ken Paulson: When online reviews lead to lawsuits

  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.

  Six weeks ago, 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.

Protected speech

  Ironically, the federal law that protects review sites such as Yelp, Angie’s List and 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.

  About the author: Ken Paulson is president and chief executive officer of the First Amendment Center. Previously, Paulson served as editor and senior vice president/news of USA Today and

  This article was published by the First Amendment Center.

1 comment:

  1. It was not my intention to use "caustic" descriptions or any descriptions or conclusions. It was also not my intention to claim that I had proof. Only my family and the doctor were in the room. My intention was to portray my recollection of what happened in my father's room. The public could decide what to believe and what - if any - impact it had on them: thin-skinned doctor or overly-sensitive consumer?

    In this case, the court found the six allegedly defamatory statements were not actionable because the “substance, the gist, the sting” of plaintiff’s version for each of the statements as provided in deposition and defendant’s version essentially carried the same meaning, satisfied the standard for substantial truth, did not show a tendency to harm the plaintiff’s reputation and lower his estimation in the community, or were incapable of conveying a defamatory meaning (e.g., when a nurse told defendant that plaintiff was “a real tool”) based on “how an ordinary person understands the language used in the light of surrounding circumstances.”

    The Minnesota high court said, for instance, that Dr. McKee’s version of his comment about the intensive care unit was substantially similar to Mr. Laurion’s. “In other words, Dr. McKee’s account of what he said would produce the same effect on the mind of the reader,” the court said. “The minor inaccuracies of expression (in the statement) as compared to Dr. McKee’s version of what he said do not give rise to a genuine issue as to falsity.”|75|339|303

    The doctor said in his deposition that with regard to finding out if Mr. Laurion was alive or dead, “I made a jocular comment… to the effect of I had looked for [Kenneth Laurion] up there in the intensive care unit and was glad to find that, when he wasn’t there, that he had been moved to a regular hospital bed, because you only go one of two ways when you leave the intensive care unit; you either have improved to the point where you’re someplace like this or you leave because you’ve died.” The court said the differences between the two versions of the statements about death or transfer by both plaintiff and defendant were so minor that there was no falsity in the website postings. In other words, the court indicated that the allegation about the statement was true.