The litany of complaints doctors have compiled against Yelp is long. Frustration is based on (a) filtering of reviews – many of which are positive; (b) the perception (right or wrong) that refusal to purchase advertising on Yelp leads to score manipulation; and (c) Yelp appears to “prioritize” reviews of those who post frequently (“Yelpers”) and is perceived to be a non- level playing field.
Hadeed Carpet Cleaning, Inc. had had enough.
He noticed 7 anonymous reviews on Yelp which slammed his business. He asked Yelp to help identify who wrote these reviews, because, after checking his database, he could find no record the negative reviewers were Hadeed’s customers. Yelp fought the subpoena. Hadeed moved to hold Yelp in contempt of court. The circuit court agreed with Hadeed and imposed monetary sanctions and awarded attorney’s fees. Yelp appealed.
On page 17 of the Virginia Appellate Court decision Yelp v. Hadeed are the words:
“We find Yelp’s argument unpersuasive.”
Ouch.
While it is difficult to sue an anonymous poster for defamation (and we generally recommend against it), businesses are able to do so. Procedurally, they file a “John Doe lawsuit.” Using that strategy, the defendant is labeled as “John Doe,” John or Jane Doe will presumably will be re-labeled as a named defendant after the identity is unmasked through discovery.
Note: In a John Doe lawsuit, the review site is not a defendant. The review site is not a named party. Web platforms are essentially immune from defamation litigation based on a long standing federal law, Section 230 of the Communication Decency Act.
John Doe lawsuits are not easy to prosecute. They are expensive, time-consuming, and an uphill struggle. To even get started, you have to make a prima facie claim of defamation – a published false statement which damages reputation. Statements of opinion are not considered defamatory. So, if someone writes “I think Dr. X is a butcher”, that is generally considered a statement of opinion. In most states, that statement would not allow a John Doe lawsuit to get out of the starting gate. In most states, “I think Dr. X is a butcher’ is not considered defamatory.
Now, Virginia has upset the status quo. The Virginia Appellate Court wrote that unmasking the identities of anonymous posters needs to balance rights of free speech with rights of defendants to avoid being defamed. While statements of opinion are protected, some statements of opinion posted by non-clients are not protected. The Virginia Appellate Court concluded if you represent you are a client and you are not, then your opinion is not treated as a “statement of opinion.” It is treated as a false statement. And a business can move forward with a John Doe lawsuit.
Here, Hadeed stated he made an effort to identify the names of the posters – and, in good-faith, concluded, the posters were not clients. He had no other way to further identify the posters without Yelp’s participation. Yelp fought this tooth and nail. The court concluded that based on Virginia unmasking statutes, Yelp must produce documentation to assist Hadeed in the discovery process.
What does all of this mean?
First, while an appellate court decision is a big deal, I would not be shocked if this case is appealed to the Virginia Supreme Court. That Court is not obligated to take the case. But, if it does, the outcome could change.
Further, as the appellate decision noted, different states have different requirements for unmasking identities in defamation lawsuits. Some are much more restrictive. Hadeed’s decision applies to Virginia. But, for the moment, it is binding precedent in that state.
Finally, if you have a good faith belief that, after doing a reasonable investigation, negative reviews were posted by non-clients, and your business is based in Virginia, that suffices to file a John Doe lawsuit to unmask the identity of an anonymous poster.
We still believe it makes more sense not to file defamation lawsuits except in the most unique circumstances. The better strategy is to deputize your clients (and patients) to post their experiences. The solution to pollution is dilution. eMerit is our offering which helps clients obtain point-of service reviews so the public has a more representative picture of a doctor’s practice. It helps the public find the best doctors – and allows the best doctors to be found online.
Yelp cannot be pleased with the Virginia Appellate Court’s conclusion. I’m guessing this is not the last we’ve heard of this case and potential floodgate of new cases in the twenty-plus states that have no anti-SLAPP laws. (More on that in a different post….)
About Medical JusticeMedical Justice provides comprehensive support for challenges such as preventing frivolous lawsuits, addressing unwarranted refund demands, managing sham peer reviews, and safeguarding your online reputation. Our expert team assists with issues like defamatory reviews, medical board complaints, and notices of intent to sue.
We offer legal protection plans, online reputation management, and consultations for concerns that fall outside of membership coverage (such as board complaints, National Practitioner Data Bank reports, and negotiation on your behalf with patients seeking refunds), with suggested next steps to help you regain control. If you require more hands-on assistance, or if your need falls outside the scope of membership, we can often be engaged for further support. Contact us today to get started by scheduling a consultation with a member of our team.
For the longest time (read forever) anonymous people have been able to publicly slam and defame all manner of people and businesses without any risk of retribution or evening of the playing field.
An interesting example is the Holocaust, which besides being the worst crime in history, is also the most documented crime in history.
Yet, you still see deniers and anti-Semitic posts and complaints everywhere, certainly on the WEB and Media. Mostly, the “new” anti-Semites have simply graduated to rejecting Israel’s right to exist or defend itself. We are now also seeing academic boycotts of Israel. Creative anti-Semitism is nothing if not “creative.” Not to make a connection in severity or quantitative judgment, one does tire of feeling like a life-time target.
Of course you should deputize your patients to speak up in favor of you. You do what you can. It helps if there are a 100 positive notes to balance away 3-4 rants.
But we are also proud of any businesses that take on an open fight in the courts. This is expensive and the result is far from certain, because of freedom of speech issues. No doubt FOS issues are the 500lb Gorilla in the room.
It looks like this particular business scored a direct hit, and we are all proud and grateful to them. Who knows how long it will stay? But even a single hit is better than just bending over and taking it all the time.
The next battle of course is Congress and the Administration, which has continued its war against healthcare providers of all kinds. At least THERE we have an option: We can eschew our own petty differences, get together and form a giant healthcare lobby of ALL willing providers.
THAT would be a force and a budget to reckon with, even against Congress. It’s perfectly legal and everyone else does it. Trouble is, we don’t.
Michael M. Rosenblatt, DPM
I suppose that if the Supreme verdict is that this is legitimate, then any form of slander against any and all becomes, by definition, legal. Here are some possible consequences:
1) Choose any business (Macy’s, GM, Sam’s Club) and describe highly sensationalistic stories about them, like: there was a fire in the store and no one decided to call the fire department because it might have interfered with selling more products; or Dr. Smith’s nurse came into the room I was in and sprayed Mace at my mother since she thought she was talking too loud; or while I was shopping at Dillard’s, a person in the parking lot parked near my car showed me a video of one of their security guards spraying my car with orange paint.
2) Someone went online and wrote flagrantly false descriptions of products. Oops–I meant that to be hypothetical; it’s not: the consumer safety guys have already leveled charges at the guys who make BuckyBalls. No damages ever reported, but they were forced off the market due to theoretical risks–which never materialized. It’s interesting reading. It’s very definitely not comforting, but it is interesting.
They’re coming.
JH
It’s refreshing to read something “normal” coming from the courts these days. 🙂
As a marketing consultant to cosmetic physicians. of course the “yelp” issue has come to the table more often than any of my clients would like. Sometimes the complaints are valid and those are taken as a valuable heads-up as to how things can be improved.
However, there are disturbingly suspicious complaints that are posted from time to time that loudly trigger the fake alarm. In researching the complaining reviewers themselves we will sometimes discover that a “yelper” will have posted negative reviews for one practice and positive reviews for a direct competitor on the SAME day for the SAME procedure. (Always check the poster’s review history – it can be quite revealing)
Other times, the reviewer will have their dog groomed in Reno, their car serviced in Seattle, their hairdresser will be in San Diego and their doctor (the one they love or hate) in a entirely different and far flung location from their noted geographical location on their Yelp profile. It does seem that more recently Yelp is taking more notice of this discrepancy of service locations noted by reviewers in their filtering, but it’s good to look yourself.
One thing we notice is that it seems all reviews post almost immediately – both positive and negative. But the permanently posted filtering percentages are seemingly never equal. As noted by Joseph Horton above, there is overall “media glee” in disproportionately magnifying the negative.
We all understand the importance of some identity disclosure protection – but wouldn’t it be nice if, as in courts of law, there were a way to know who your accuser is? What judge would pass sentence on a person who was denied knowledge of their accuser’s identity and a total dispensation of verifiable fact?
Until all the review sites have some other type of system to root out the fraudulent reviews – both negative and positive – there will be very skewed and inaccurate “ratings” that impact the public’s decision.
As to physicians who find themselves too often in the negative review column of public postings – our recommendation is that they first honestly assess their patients’ experience perception. An instant in-house review system with a tablet app, a paper score sheet or a returnable post-paid rating card can sometimes expose negatives that are easily correctable. And the “old fashioned” practice of a follow up phone call (when permissioned by the patient) adds a caring personal touch that is valuable in ways that are immeasurable to both patient and provider.