On January 8th, we reported that a San Franciscan chiropractor was suing a former patient, Christopher Norberg, over a negative review on Yelp. According to The San Francisco Chronicle, this case has since been settled (the details of the settlement remain confidential), and the offending post has been taken down to be replaced with: “A misunderstanding between both parties led us to act out of hand. I chose to ignore Dr. Biegel’s initial request to discuss my posting. In hindsight, I should have remained open to his concerns. Both Dr. Biegel and I strongly believe in a person’s right to express their opinions in a public forum.”
Comments by Yelp users in response to the case continue to volley.
A new similar case reported by The San Francisco Chronicle involves a pediatric dentist in Foster City who has filed charges against the parents of a boy she treated for cavities as well as Yelp.com over a negative review. (The latter charges may be dropped because, as Wong’s lawyer has since learned, “Web sites publishing third-party content are protected under U.S. law.”)
One question raised by the recent spell of Yelp lawsuits is whether these lawsuits are filed simply for the purposes of having the offending posts removed. Since anyone can respond or refute a negative Yelp posting within the confines of Yelp.com, perhaps such “nuisance” suits should be barred.
Nonetheless, Aaron Morris, an internet defamation attorney in Santa Ana, Calif. argues that there needs to be some defense against defamatory speech on the internet:
Those seemingly helpful reviews you are reading on line are being gamed big time, and there must be a means to fight back. I receive calls every day from businesses that are being falsely trashed by competitors. In one case it was discovered that a company had employed a full time defamer (my designation, not theirs), whose job was to spend all day every day, creating false identities in order to post false reviews, blogs and websites about competitors. I’d love to say that it will all come out in the wash; that a good business will receive enough good reviews to override the false statements, but that is not the case. Whereas a legitimate reviewer will post their remarks and go about their business, these professional defamers utilize SEO methods to move the defamatory blogs and websites to the top of the heap.
On the flip side of things, how can reviewers defend themselves if their posts are in earnest?
One option, Morris suggests, is for the defendant to bring “a simple anti-SLAPP motion.” SLAPP stands for “A Strategic Lawsuit Against Public Participation.” As Morris explains, a SLAPP “is a lawsuit or a threat of a lawsuit that is intended to intimidate or silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.” California passed an anti-SLAPP statue to protect people from these kinds of lawsuits.
Regarding Yelp cases, if it can be shown that the plaintiff does not have a chance of prevailing and that the defendant’s posts concern “an issue of public interest,” the motion is granted and the plaintiff is required to pay all of the poster’s attorney fees. What’s more, Morris argues, the poster can then file “a SLAPP BACK action, suing the prior plaintiff for malicious prosecution.”
These kinds of protections might help to mitigate unwarranted lawsuits, but we have yet to see just how anti-SLAPP motions will be applied to lawsuits over online reviews.