A doctor in New York and a dentist in Oregon have both found out that it may not be easy to sue for libel over online reviews of their services, after their separate lawsuits were both dismissed. And it turns out that most of the dentists and doctors who have sued over online reviews have reached similar results.In the New York case, doctor Trilby J. Tener sued over a comment posted to the physician review website vitals.com. The comment, posted April 12, 2009, stated that "Dr. Tener is a terrible doctor. She is mentally unstable and has poor skills. Stay far away!!!"
Dr. Tener discovered the comment when she did a Google search for herself on May 28, 2009. But she did not file suit until April 8, 2010, four days before the expiration of the one-year statute of limitations (running from the day when the statement was initially posted). She then attempted to amend the complaint on June 8, 2010 to change the named defendant, claiming that it took that long to determine who was responsible for the posting.
Discovery in that case lead to an appellate decision, after Dr. Tener's efforts to obtain electronically-stored records from a hospital, in an attempt to identify the poster. The records were deleted through normal business operation. Calling it "our first opportunity" to address the issue, the appellate court noted that "[electronically stored information] is difficult to destroy permanently. Deletion usually only makes the data more difficult to access," and held that against non-parties must utilize a cost-benefit analysis weighing the cost of retrieving the information against the value of the sought-for information. See Tener v. Cremer, 89 A.D.3d 75, 931 N.Y.S.2d 552 (N.Y. App. Div., 1st Dept. 2011).
That ruling raised the ire of the trial court because the "trial record" before the appellate court differed from that record that had been before the trial court when it made its initial decision in the discovery dispute. The problem turned out to be a clerical error in the trial court when the case was passed from one judge to another, that Dr. Tener's attorney did not correct.
Ruling on a defense motion to dismiss after the appellate decision, the trial court chided the plaintiff and her attorney for appealing rather than attempting to correct the record, and for not being diligent about identifying the proper defendant prior to filing suit. The court then proceeded to dismiss the suit on statute of limitations grounds, and also wrote that "even if this action was found to be timely, dismissal is warranted for failure to state a cause of action, as the alleged defamatory statements are statements of opinion, and, thus, are not actionable." Tener v. Cremer, 2012 NY Slip Op 32022(U) (N.Y. Sup. Ct., N.Y. County July 16, 2012).
Meanwhile, an Oregon court dismissed a lawsuit by a Lake Oswego, Oregon dentist over reviews that a former patient posted on Yelp.com, DoctorOogle.com and Google. Circuit Court Judge Judith Matarazzo dismissed the lawsuit under the state's anti-SLAPP law on Sept. 5.
Such statutes, adopted in 28 states, the District of Columbia, and one U.S. territory (and by common law in two more states), allow for easy dismissal of libel and similar lawsuits that are primarily aimed at limiting discussion of public issues. (See the DMLP Legal Guide for more on anti-SLAPP laws.)
These cases stand as data points showing growing trend. According to this list of lawsuits (pdf) brought by doctors and dentists over online reviews of their services compiled by Eric Goldman of Santa Clara School of Law, physicians have not been very successful in such suits. Several suits have been dismissed under anti-SLAPP statutes. See Gilbert v. Sykes, 53 Cal. Rptr. 3d 752 (Cal. App. Ct. 2007); Kim v. IAC/InterActive Corp., 2008 WL 3906427 (Cal. App. Ct. 2008); Wong v. Jing, 189 Cal. App. 4th 1354 (Cal. App. Ct. 2010); Rahbar v. Batoon, No. CGC-09-492145 (Cal. Super., San Francisco filed Sept. 2, 2009), No. CGC-10-502884 (Cal. Super., San Francisco filed August 20, 2010), and No. CGC-11-515742 (Cal. Super., San Francisco filed Sept. 8, 2011). (In one case, the court declined to dismiss a doctor's lawsuit under Maine's anti-SLAPP law, finding that the plaintiff was likely to be able to prove that the patient fabricated the story posted on the review site. See Lynch v. Christie, 2011 WL 3920154 (D. Me. Sept. 7, 2011), appeal dismissed, No. 11-2172 (1st Cir. 2011).)
Others have been dismissed under section 230 of the Commmunications Decency Act. Other cases were withdrawn, and some settled.
None of the cases actually ended with court awards to the doctors.
Eric P. Robinson teaches media law and ethics at the CUNY Graduate School of Journalism and Baruch College, as is of counsel to the Counts Law Group. He was previously Deputy Director of the Donald W. Reynolds National Center for Courts and Media at the University of Nevada, Reno. Eric is a media and internet law attorney with extensive experience analyzing and writing on media, internet and freedom of expression issues, including tracking media and internet litigation and legislation. He also blogs at bloglawonline.com.
(Image courtesy of Flickr user rosmary pursuant to Creative Commons CC BY 2.0 license.)
Fellow blogger Eric Goldman has written a blog post on this issue.
Eric P. Robinson