Be Careful Posting That Online Review, You Might Just Get Sued

Thursday, May 01, 2014

Businesses have suffered from anonymous, negative reviews and now lawyers around the country are fighting over whether they constitute slander or are protected free speech. (Uros Zunic/Shutterstock)

When it comes to online reviews, we've all experienced the good with the bad—even here at The Takeaway.

Our program turned 6-years-old this spring, and sometimes we really wonder: How did we survive the early days?

This was a typical audience comment here at TheTakeaway.org after we first launched:

"If I had to explain it to some fortunate soul who hadn't heard the TasteAway, I'd say it's an experience akin to hearing Adolf Hitler deliver MLK's 'I have a dream' speech. Is there a number of negative comments that has to be reached before the plug is pulled on this atrocity?"

Thank you Paul, wherever you are. We're sure Ira Glass or This American Life never got compared to Hitler. We slogged through the negative comments, but we made it through to today.

But other businesses have suffered from these anonymous, negative reviews and now lawyers around the country are fighting over whether such reviews constitute slander or are protected free speech.

Negative online reviews can be gushing, or outraged—and they’re not always fair or accurate. But what happens when an online review, one of the most basic forms of public participation online, calls into question larger issues of anonymity and libel?

Alex Goldmark, senior producer for WNYC's New Tech City, reported on this topic with a focus on two cases playing out in the U.S. 

Guests:

Alex Goldmark

Produced by:

Ellen Frankman

Editors:

T.J. Raphael

Comments [13]

Dr. Sues from Petaluma

IS A SETTLEMENT IN THE WORKS FOR VOGL-BAUER V. LLEWELLYN?

Anthony Llewellyn now has three lawyers, Andrew Price, Kate E. Maternowski, and Laura Brenner . Jury trial is still scheduled for SEP 15 - SEP 17, 2014, in the Walworth County Judicial Center Courtroom of the Honorable Phillip A Koss; however, it is hard to find any of Anthony Llewellyn's videos online. IS HE TAKING THE VIDEOS DOWN?

Sally Vogl-Bauer apparently had her pre-trial hearing AUG 20, 2014. It is no longer listed on the pending court docket.

Visit http://wcca.wicourts.gov/index.xsl . Click agree.

On next page enter name = Llewellyn,

County = Walworth,

Case Number = 2013CV001140.

You'll see suit history and public data about Sally Vogl-Bauer and Anthony Llewellyn.

Aug. 25 2014 03:33 AM
Dr. Sues from California


"A Portland dentist is suing a former patient for what the dentist claims are defamatory reviews in online forums."

By Sam Stites, Willamette Week, September 3, 2012

Dr. Mo Saleh, of Dental Dynamics, originally filed suit against Spencer Bailey in Multnomah Circuit Court on June 26 seeking $300,000 after Bailey wrote about Saleh’s dental skills on Yelp, DoctorOogle.com and Google. In his lawsuit, Saleh says Bailey posts caused damage to his reputation, loss of profits and emotional distress.

The reviews cited in the complaint include statements saying Bailey implied ”improper and insufficient dental services by Dr. Saleh.” The complaint further alleges that Bailey wrote, “if Dr. Saleh tells you that you have a cavity — GET A SECOND OPINION.”

According to the complaint. Bailey said he had never had a cavity in 32 years until Saleh found several. Bailey’s lawyers have responded by stating that Bailey went to Saleh for dental work and then went to another dentist after experiencing pain. They claim that the other dentist advised Bailey that some of the fillings were unnecessary and some were poorly put in.

Bailey’s attorneys, Jeremiah Ross and Linda Williams, also claimed that Saleh contacted Bailey after he reviewed the dentist on various web sites, threatening him to remove them. They say Bailey removed the postings out of concern for his and his family’s safety. Even though Bailey removed the postings, Saleh is proceeding with his suit. (Saleh’s lawyer declined to comment.)

As online commentary about all manner of topics has exploded, so too has the number of lawsuits unhappy targets have filed about such commentary. Saleh’s suit falls under what lawyers call a practice of Strategic Law Against Public Participation or SLAPP. SLAPP cases take aim at people making statements or publishing information that could be damaging to the plaintiff. Critics say these suits are sometimes little more than attempt to censor, silence and in intimidate the defendant.

Earlier this month Bailey’s attornies filed a motion to strike Saleh’s lawsuit under the anti-SLAPP statute, declaring that Bailey’s online reviews are free speech in a public forum. "Spencer's review was a protected opinion and the Plaintiff cannot prove their allegations," Ross, Bailey’s co-counsel tells WW via email. "Nor can they prove $300,000 in damages for a post that was up for three weeks."

A judge will hear the anti-SLAPP motion on Sept. 5.

http://www.wweek.com/portland/blog-29111-portland_dentist_sues_patient_over_internet_posts.html

Aug. 18 2014 01:37 AM
Helen from United Kingdom

I believe little consumers hiding behind a computer should be sued as well, for making false negative reviews. It’s a very childish act and if they’re own livelyhood was at stake depending on reviews for income, you know they’d think twice.

Aug. 14 2014 09:52 AM
Court Watch from Ohio

[ quote ] McKee's lawyer, Marshall Tanick of Hellmuth Johnson, told the Associated Press that he and McKee plan no further appeals and that they were disappointed with the ruling. "We feel it gives individuals undue license to make disparaging and derogatory statements about these people, particularly doctors and other licensed professionals, on the Internet without much recourse," Tanick said.

Marshall Tanick of Hellmuth Johnson told the Star Tribune that the ruling could present a slippery slope. "This decision gives individuals a license to make derogatory and disparaging statements about doctors, professionals and really anyone for that matter on the Internet without much recourse," he said. [ /quote ]

Jane Kirtley, a professor of media ethics and law at the University of Minnesota School of Journalism, told the Star Tribune that the ruling stems from "an elementary principle of libel law.” She said that this isn’t a blank check for people to make false factual statements. She said, rather, that it's “an endorsement that statements of opinion are protected under the First Amendment.”

According to the Duluth News Tribune, Minnesota Newspaper Association attorney Mark Anfinson, who watched the oral arguments before the Supreme Court in September, said that the justices made the right decision. Anfinson also told the News Tribune, “What this case really exemplifies is not so much legal precepts in libel law, but the impact of the Internet on the ability to publish unflattering comments about people.”

Anfinson was also interviewed by Minnesota Lawyer. He said, “Anyone who knew about the case, who observed the oral arguments, and who knows something about libel law is about as unsurprised with this result as they can be. It’s about as perfunctory and routine as the Supreme Court ever gets. It was a completely straightforward application of long-settled libel-law rules.”

Anfinson said the case is more significant for social commentary purposes than for its legal analysis, noting that perhaps the justices only accepted the case to fix an error of the Court of Appeals.

Jul. 29 2014 06:50 PM
Dennis from Duluth MN

As one of the “trolls” detailed in the BuzzFeed article, I have no issue with the accuracy of the text during the case David McKee MD v. Dennis Laurion - but the tone of the title fails to distinguish sincere complaints about bedside manner from attacks on mental stability, attacks on medical prowess, fake websites, allegations of dangerous injections, and use of multiple identities. The author said “McKee and Laurion agree on substance…”

While being sued for defamation, I have been called a passive aggressive, an oddball, a liar, a coward, a bully, a malicious person, and a zealot family member. I’ve been said to have run a cottage industry vendetta, posting 108 adverse Internet postings in person or through proxies. That’s not correct. In reality, I posted ratings at three consumer rating sites, deleted them, and never rewrote them again.

The plaintiff’s first contact with me was a letter that said in part that he had the means and motivation to pursue me. The financial impact of being sued three years to date has been burdensome, a game of financial attrition that I haven’t wanted to play. The suit cost me the equivalent of two year’s net income - the same as 48 of my car payments plus 48 of my house payments. My family members had to dip into retirement funds to help me.

After receipt of a threat letter, I deleted my rate-your-doctor site postings and sent confirmation emails to opposing counsel. Since May of 2010, postings on the Internet by others include newspaper accounts of the lawsuit; readers’ remarks about the newspaper accounts; and blog opinion pieces written by doctors, lawyers, public relations professionals, patient advocates, and information technology experts. Dozens of websites by doctors, lawyers, patient advocates, medical students, law schools, consumer advocates, and free speech monitors posted opinions that a doctor or plumber shouldn’t sue the family of a customer for a bad rating. These authors never said they saw my deleted ratings – only the news coverage.

McKee's lawyer, Marshall Tanick of Hellmuth Johnson, told the Associated Press that he and McKee plan no further appeals and that they were disappointed with the ruling. "We feel it gives individuals undue license to make disparaging and derogatory statements about these people, particularly doctors and other licensed professionals, on the Internet without much recourse," Tanick said.

Marshall Tanick of Hellmuth Johnson told the Star Tribune that the ruling could present a slippery slope. "This decision gives individuals a license to make derogatory and disparaging statements about doctors, professionals and really anyone for that matter on the Internet without much recourse," he said.

In reply to an e-patients.net article “Minnesota Supreme Court sides with patient on social media defamation suit,” Attorney Marilyn Mann said, “I think McKee’s lawyer is incorrect. The case turned on standard principles of defamation law and doesn’t really break new ground.”

Jul. 28 2014 02:48 AM
Canadian Bacon from Canada

Perhaps the attention is turning from Doctor Streisand (AKA David McKee MD) to Professor Streisand (AKA Sally Vogl-Bauer).

"UW-Whitewater professor sues student over postings"
By Associated Press 22 May 2014

[[ A University of Wisconsin-Whitewater professor is suing a former graduate student who posted online comments and videos that the teacher considers defamatory.

[[ Anthony Llewellyn took a class last year from communications professor Sally Vogl-Bauer, but the experience didn't go well.

[[ Llewellyn posted comments on professor-rating sites accusing the teacher of criticizing his academic abilities, grading him unfairly and causing him to fail out of school. He said he spoke with her in April about his concerns, two months before he was told he had failed her class.

[[ Vogl-Bauer contends the comments amount to defamation, while Llewellyn says his goal was simply to inform the public about how the professor treated him.

[[ Tim Edwards, the attorney representing Vogl-Bauer, said the comments could be especially damaging to someone in a small professional community. He said he and Vogl-Bauer agree that students should be allowed to express their opinions, "but when you go so far beyond that, into a concerted effort to attack somebody's reputation because things didn't go your way, that's much different." Edwards and Vogl-Bauer asked Llewellyn to take down his online comments and videos. They filed the lawsuit after he refused.

[[ Llewellyn said it's important for the videos and comments to stay online so the public can remain informed.

[[ It's not clear how successful the lawsuit will be, but a similar case in Minnesota ( * ) ended with a ruling in favor of the person who posted the online rating. In the case, a doctor took offense when a patient's son went on a rate-your-doctor website and called him "a real tool," slang for stupid or foolish. The Minnesota Supreme Court ruled in January 2013 that the comment wasn't defamatory because it was an opinion protected by free-speech rights. ]]

Information from: The Janesville Gazette, http://www.gazetteextra.com

( * ) The Minnesota case was David McKee MD V. Dennis Laurion, Minnesota Supreme Court File # A11-1154. McKee was represented by Marshall Tanick of Hellmuth Johnson. Laurion was represented by John D. Kelly of Hanft Fride.

Jul. 18 2014 05:51 PM
Canadian Bacon from Toronto

This is from an April 4, 2014, Buzzfeed article by Jake Rossen.
[Excerpt begins]

David McKee, M.D., a Duluth, Minn., neurologist, was unaware of the Streisand phenomenon at the time he decided to sue Dennis Laurion. Laurion’s father, Kenneth, had suffered a stroke in April 2010; McKee was called in to assess Kenneth’s condition.

According to the Laurions, McKee was oblivious to Kenneth’s modesty. “His son was right there,” McKee counters. “If he was concerned about the gown, he didn’t get out of his chair to tie it.”

Dennis Laurion consulted with his family to see if his impression of the arrogant doctor was real or imagined. He fired off a dozen or more letters to a variety of medical institutions, including the hospital’s ombudsman, the Minnesota Board of Medical Practice, Medicare, and the American Medical Association.

McKee sued Laurion for defamation. A local Duluth newspaper picked up on the story, favoring Laurion’s interpretation of events.

In April 2011, the judge granted Laurion’s motion for summary judgment, ruling his comments were protected free speech. A user on Reddit.com posted the newspaper story. Almost overnight, dozens of “reviews” popped up on RateMDs.com and other sites with outlandish commentary on McKee, who was referred to as “the dickface doctor of Duluth.”

McKee found no easy way to exit the situation. “You get drawn in,” he says, suggesting his lawyer nudged him into further action. “It’s throwing good money after bad. … I wanted out almost as soon as I got in, and it was always, ‘Well, just one more step.’” McKee appealed, and the summary judgment was overturned. The case, and the measurable impact of being labeled a “real tool,” was now headed for the Minnesota Supreme Court.

McKee was rated for several years as a top provider in Duluth Superior Magazine, but “From now until the end of time, I’ll be the jerk neurologist who was rude to a World War II veteran,” the physician says. “I’m stuck with it forever.”

Jul. 15 2014 08:02 AM
Anna from Detroit

And if you don't buy yelp's services they only put up the "recommended reviews" and you have to go digging on the site to find all of the reviews that have posted. Often times the recommended reviews do NOT depict a good picture of what people are actually saying about a place. My boss was threatening to start a class action lawsuit against yelp for defamation of character

May. 01 2014 09:55 PM
Jerry Middaugh from Seattle

How about the fact that Yelp sells advertising and offers to expunge the bad reviews if the establishment buys their services? I eat frequently at a local restaurant that was offered an advertising deal w a Yelp rep for $500. Not only would they do some kind of advertising, but they would get rid of the negative reviews. I've eaten at the place about once a week for several years. I find the 2 star reviews completely unbelievable. Its a Thai restaurant and one review gave it 2 stars because of 'bland food'. They will crank up the stars as high as you want here. I sent the following to a local radio talk show for a possible topic:

Good one. We're planning a show on 'do we need critics when we have things like Yelp'. This will be a great aspect of crowdsourced reviews to include. Thanks for sending it.

Ross Reynolds.

On May 10, 2013, at 5:35 PM, "Jerry Middaugh" <do-not-reply@publicinsightnetwork.org> wrote:

> Form: 121126_Help_Convo
> Referring URL: http://kuow.org/programs/conversation
>
> Jerry Middaugh , jammy@psni.com , 2067885676
> 98119
>
> Q: Information you share on this form doesn't go on air. We use your answers as a starting point in our reporting.
>
> What subject do you think is ripe for a segment on the Conversation?
> A: Yelp reviews for restaurants and extortion. Yelp offers to remove negative reviews for a price (advertising). Many of the reviews are suspect. It amounts to shaking down local restaurants for advertising $ for Yelp.
> Q: What should we know about this subject? What should we read? Who should we talk to?
> A: Here is a link to a couple of articles in other places:
>
> http://www.eastbayexpress.com/oakland/yelp-and-the-business-of-extortion-20/Content?oid=1176635
>
> http://www.epicurious.com/articlesguides/blogs/editor/2012/05/the-yelp-extortion-scam.html
>
> Here's one for a 'Reputation Changer':
> http://www.reputationchanger.com/?/source=Google&subid=1E&gclid=CIeVntjijLcCFWQ6QgodGV0AHQ
>
> And a page of "Yelp blackmail" comments:
> http://www.reputationchanger.com/?/source=Google&subid=1E&gclid=CIeVntjijLcCFWQ6QgodGV0AHQ
>
> I eat frequently at local restaurants for lunch. Some of these are really good restaurants. If they pay, the negative reviews will be 'expunged'. I think that's outrageous. It's a very difficult business and they do not need to be shaken down for advertising by a 'crowd-sourced' review organization. These are the restaurants that really distinguish Seattle from the other places that have only chain-food shops.

May. 01 2014 04:13 PM
eugene from suffolk cty., ny

there are times i've felt justified in posting an online bad review for poor service. once a veterinarian and once a moving company. i refrained out of fear of whatever kind of retribution. i am an otherwise responsible person and do not practice or condone irresponsible trashing of merchant's reputations. but, feel one must be free to criticize shoddy work when it is foisted on the public. it's a first amendment issue. just as one can not yell "fire" in a crowded theater, one does have the right to complain when abused in the market place.

May. 01 2014 03:30 PM
Larry Fisher from Brooklyn, N.Y.

My comment will remain neutral.

May. 01 2014 01:46 PM
Sharon Hasenjaeger from Portland

This somehow reminds me of the recent spate of "social welfare organizations" putting out their campaign propaganda anonymously. Maybe these comments should come with a cigarette pack style warning "THIS MESSAGE BROUGHT TO YOU BY SOMEONE WHO REFUSES TO GIVE THEIR NAME."

May. 01 2014 01:04 PM
Jeff Hayden from Phila

What happens if a competitor puts multiple negatives to force you out of business.

May. 01 2014 12:57 PM

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