To sue or not to sue, that is the question.
When the issue at hand is an online review of your practice, the answer is almost always no. Barring highly specific and hard-to-prove circumstances, heading to court to contest a negative review can often do more harm than good.
The latest case in point? Dr. Nima Dayani, a New York endodontist who, according to BuzzFeed News, has sued several patients for defamation. Some suits were settled and some were dismissed, but cumulatively, they’re also giving him a reputation — and a lot of publicity — he’d probably rather not have.
Last week, Yelp, which hosted all but one of the contested reviews, placed the Consumer Alert pictured below on the practice’s Yelp page, warning that the business “may be trying to abuse the legal system” and “issuing questionable legal threats against reviewers.”
Now, imagine the likely reaction from potential patients who come across that warning. Chances are many will click away — who wants to run the risk of getting sued for expressing their opinion? — meaning the loss of potential revenue will very likely outweigh all of the settlements in those previous suits combined.
And bad publicity is only part of the problem as issues of free speech and the difficulty of proving defamation make succeeding in such efforts exceedingly difficult. As Vince Sollitto, Yelp’s Senior Vice President, Corporate Communications & Public Affairs, wrote in a recent blog post,
Consumers have the right to share their opinions about their experiences with businesses, but there will always be a small handful of businesses who mistakenly think it’s a good idea to threaten consumers who exercise their free speech rights. As a result, we started a new type of Consumer Alert to warn people about businesses that issue questionable legal threats.
The issue of questionability is key as many such suits are brought, not in an actual effort to recover damages, but rather, as a means to pressure people to remove their reviews. Known as SLAPP lawsuits — as in Strategic Lawsuits Against Public Participation — such efforts are defined as lawsuits that are intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense and are currently subject to anti-SLAPP laws in 27 states and the District of Columbia.
As Sollitto put it,
Consumers don’t necessarily know that these threats are sometimes empty or meritless (and often both!), so the threat of legal action is enough to scare them into silence. We don’t think that’s right.
And that’s not all that’s wrong, either. Even if a suit is brought with the intent of pursuing damages, winning is no easy task. For one thing, the vast majority of online reviews merely express opinions and are, therefore, protected as free speech by the First Amendment. As such, they can’t be considered defamatory, which is why so few defamation suits succeed. In fact, in several cases, doctor and dentists who have sued patients over a negative review have ended up paying thousands of dollars to cover those patients’ attorney fees.
That’s why it’s so important to understand what actually constitutes defamation. Although not intended as legal advice, the following offer guidelines to consider before contacting your attorney. To prove defamation, you need to show that the reviewer:
- Made a false statement
- Communicated the statement to a third party and
- Damaged your business
The problem is that it’s exceedingly difficult to prove points 1 and 3. Re: the former, the line between what constitutes an opinion (“Dr. X is a quack”) and what constitutes a false, and therefore, defamatory statement (“Dr. X got his license from a mail-order catalog”) is often murky. Re: the latter, quantifying the financial impact of a negative review and the resulting damages can be difficult. And even if you’re successful, having an attorney devote hours to the effort will almost certainly take a serious bite out of whatever compensation you might be entitled to.
Put it all together — the bad publicity, the fact that opinions are protected speech, and the difficulty of proving harm — and it’s safe to say that filing lawsuits over negative reviews is rarely the right way to go.
We’ll look at some better alternatives in a subsequent post.