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| My Double Big Bite (Photo credit: erinblatzer) |
However, this site, and the head skeptic here, had also received more than a few comments that threatens lawsuit, with the comment-er that throws around terms like "defamation" without really understanding what they are. Another claimed "right to privacy" when I dug out his own picture from Google cache and threaten to sue me if I don't remove it. (which is hilarious, and the post is still there)
Recently there was another "opportunity" that is all buzz, no substance (other than promises). When a few critics pointed out the problem, fans of this opportunity apparently complained on Facebook, with suggestions like "You should sue the critics for defamation!"
Frankly, one should not throw around the law if one does not know what the law is. It is perfectly legal for a person to criticize a business, if everything s/he wrote about the business is true.
Some idiots, afraid of negative reviews, have resorted to wield lawyers and court as a baton to beat their critics into submission and recanting the criticism. However, the courts are usually wiser than that, as one man in Virginia found to his detriment.
Jane Perez and Christopher Dietz used to be classmates. When Perez needed a house renovated, she remember Dietz now has a construction business, and they signed a contract for the work that needed to be done. Somehow, after some MAJOR disagreement later, Perez was left extremely unsatisfied with the work, and even claimed that Dietz (the only other person with the key) may have stolen some jewelry from the home while it was being renovated. Perez even reported this to the police, but no charges were filed. Dietz claimed he was owed thousands of dollars for unpaid work.
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| Image via CrunchBase |
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| Image via CrunchBase |
In late December 2012, Virginia Supreme Court sided with Perez, removing the injunction, even though both reviews had long been deleted.
Frankly, if you search for the Dietz company name now, all the stuff you'll find are about the lawsuit and how people hate the company and the owner for initiating it. By launching the lawsuit, the owner had guaranteed that his infamy will live on forever in the news archives, and that sort of bad SEO cannot be erased... ever.
This is sometimes called the Streisand Effect. The more you try to hide something the more attention you actually brought to it.
Don't threaten to sue if you don't know the laws involved. It may come back and bite you in the rear.
Sidenote: If you need more examples of dumb scammers, here's a "Felicia Joyner", advertising the "riches" she got through "cash gifting" (i.e. illegal chain letter pyramid scheme) touting such on Facebook, then threaten to sue RealScam for showing information she herself had made public.
Article by: ABBY SIMONS , Star Tribune, January 30, 2013
ReplyDeleteDennis Laurion fired off his screed on a few rate-your-doctor websites in April 2010, along with some letters about what he saw as poor bedside manner by his father's neurologist. He expected at most what he calls a "non-apology apology."
"I really thought I'd receive something within a few days along the lines of 'I'm sorry you thought I was rude, that was not my intent' and that would be the end of it," the 66-year-old Duluth retiree said. "I certainly did not expect to be sued."
He was. Dr. David McKee's defamation lawsuit was the beginning of a four-year legal battle that ended Wednesday when the Minnesota Supreme Court ruled the doctor had no legal claim against Laurion because there was no proof that his comments were false or were capable of harming the doctor's reputation.
It's a frustrating end for McKee, 51, who said he's spent at least $50,000 in legal fees and another $11,000 to clear his name online after the story went viral, resulting in hundreds more negative postings about him -- likely from people who never met him. He hasn't ruled out a second lawsuit stemming from those posts. "The financial costs are significant, but money is money and five years from now I won't notice the money I spent on this," he said. "It's been the harm to my reputation through the repeated publicity and the stress."
The lawsuit followed the hospitalization of Laurion's father, Kenneth, for a hemorrhagic stroke at St. Luke's Hospital in Duluth. Laurion, his mother and his wife were also in the room when McKee examined the father and made the statements that Laurion interpreted as rude. After his father was discharged, he wrote the reviews and sent the letters.
Laurion also wrote: "When I mentioned Dr. McKee's name to a friend who is a nurse, she said, 'Dr. McKee is a real tool!'"
A St. Louis County judge dismissed the lawsuit, saying Laurion's statements were either protected opinion, substantially true or too vague to convey a defamatory meaning. The Appeals Court reversed that ruling regarding six of Laurion's statements, reasoning that they were factual assertions and not opinions, that they harmed McKee's reputation and that they could be proven as false.
The Supreme Court disagreed. Writing the opinion, Justice Alan Page noted that McKee acknowledged that the gist of some of the statements were true, even if they were misinterpreted. Page added that the "tool" statements also didn't pass the test of defaming McKee's character. He dismissed an argument by McKee's attorney, Marshall Tanick, that the "tool" comment was fabricated by Laurion and that the nurse never existed. Whether it was fabricated or not was irrelevant, the court ruled. "Referring to someone as 'a real tool' falls into the category of pure opinion because the term 'real tool' cannot be reasonably interpreted as stating a fact and it cannot be proven true or false," Page wrote.
Tanick said 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.
Jane Kirtley disagreed. The professor of media ethics and law at the University of Minnesota School of Journalism said the ruling stems from "an elementary principle of libel law. I understand the rhetoric, but this is not a blank check for people to make false factual statements," she said. "Rather, it's an endorsement that statements of opinion are protected under the First Amendment."
Full article:
http://www.startribune.com/local/189028521.html?refer=y
Doctor David McKee, a neurologist with Northland Neurology and Myology, practicing at St. Luke’s Hospital, told the Duluth News Tribune he was disappointed and frustrated. “We need to change the law so someone with a personal vendetta who is going to use the Internet to make defamatory statements can be held responsible,” he said. "The financial costs are significant, but money is money and five years from now I won't notice the money I spent on this," he said. "It's been the harm to my reputation through the repeated publicity and the stress."
ReplyDeleteMcKee's lawyer, Marshall Tanick, 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 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.”
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.”
The Mankato Free Press said in February 2013: “It’s puzzling why McKee’s defamation lawsuit — filed nearly four years ago — was still in court. It’s long been established that people may spout any opinion they want without fear of being sued . . . It’s unsettling that the Appeals Court earlier ruled to allow the suit to continue.”
Dan Hinmon, the principal of Hive Strategies, wrote for Health Care Communication, on March 21, 2013, “According to the Star Tribune, McKee is now ticked off at the people who posted hundreds more negative comments about him after the story went viral. Incredulously, the story reports that McKee ‘hasn’t ruled out a second lawsuit stemming from these posts.’ Yes, you read that right. After spending ‘at least $50,000 in legal fees and another $11,000 to clear his name online after the story went viral,’ McKee is considering suing the rest of the people who, exercising their right of protected speech, chimed in. I’m speechless.”
Twin Cities Business Magazine
ReplyDelete"The Top Lawsuits Of 2013" by Steve Kaplan, December 20, 2013
Dr. David McKee, a Duluth neurologist, was not laughing when he saw what one former client wrote about him on a doctor-rating website. The reviewer, Dennis Laurion, complained that McKee made statements that he interpreted as rude and quoted a nurse who had called the doctor “a real tool.” As these statements echoed through the Internet, McKee felt his reputation was being tarnished. He sued, and so began a four-year journey that ended this year in the Minnesota Supreme Court.
Laurion was unhappy with the way McKee treated his father, who was brought to the doctor after he had a stroke. Laurion went to several rate-your-doctor sites to give his opinion. That’s just free speech, isn’t it?
It sure is, says Laurion’s attorney, John D. Kelly of the Duluth firm Hanft Fride. “The court held that what my client was quoted as saying was not defamatory,” he says. “I do think the Internet makes it much easier for persons exercising poor judgment to broadcast defamatory statements, however… a medium… doesn’t change the quality of a statement from non-defamatory to defamatory.”
But McKee’s lawyer, Marshall Tanick, of Hellmuth & Johnson, says no matter where it was said, defamation is defamation. “The thing that’s often misunderstood is that this was not just about free speech, but about making actual false statements,” Tanick says. “The problem is today’s unfettered opportunity to express opinion, whether or not the substance of what’s said is true or not. We need some boundaries.”
But boundaries were not on the minds of the Minnesota Supreme Court. Free speech was. Chief Justice Lorie Gildea wrote, “The point of the post is, ‘This doctor did not treat my father well.’ I can’t grasp why that wouldn’t be protected opinion.” As to referring to the doctor as “a real tool,” Justice Alan Page wrote that the insult “falls into the category of pure opinion because the term … cannot be reasonably interpreted as a fact and it cannot be proven true or false.”
The takeaway from this case might be the knowledge that behind any rating service lie real people with real feelings. McKee spent more than $60,000 in the effort to clear his name, as he saw it. Dennis Laurion told the Star Tribune he spent the equivalent of two years’ income, some of which he had to borrow from relatives who supplied the money by raiding their retirement funds.
In spite of Supreme Court disagreement and subsequent peer disagreement, Marshall Tanick is STILL saying "The thing that’s often misunderstood is that THIS WAS NOT JUST ABOUT FREE SPEECH, BUT ABOUT MAKING ACTUAL FALSE STATEMENTS. The problem is today’s unfettered opportunity to express opinion, whether or not the substance of what’s said is true or not. We need some boundaries."
DeleteFrom the American Health Lawyers Association: IN THIS CASE, THE COURT FOUND THE SIX ALLEGEDLY DEFAMATORY STATEMENTS WERE NOT ACTIONABLE BECAUSE THE “SUBSTANCE, THE GIST, THE STING” OF PLAINTIFF’S VERSION FOR EACH OF THE STATEMENTS AS PROVIDED IN DEPOSITION AND DEFENDANT’S VERSION ESSENTIALLY CARRIED THE SAME MEANING, satisfied the standard for substantial truth, did not show a tendency to harm the plaintiff’s reputation and lower his estimation in the community, or were incapable of conveying a defamatory meaning (e.g., when a nurse told defendant that plaintiff was “a real tool”) based on “how an ordinary person understands the language used in the light of surrounding circumstances.”
From the Business Insurance Blog: THE MINNESOTA HIGH COURT SAID, FOR INSTANCE, THAT DR. MCKEE’S VERSION OF HIS COMMENT ABOUT THE INTENSIVE CARE UNIT WAS SUBSTANTIALLY SIMILAR TO MR. LAURION’S. “In other words, Dr. McKee’s account of what he said would produce the same effect on the mind of the reader,” the court said. “The minor inaccuracies of expression (in the statement) as compared to Dr. McKee’s version of what he said do not give rise to a genuine issue as to falsity.”
From the Duane Morris Media Blog: The doctor said in his deposition that with regard to finding out if Mr. Laurion was alive or dead, “I made a jocular comment… to the effect of I had looked for [Kenneth Laurion] up there in the intensive care unit and was glad to find that, when he wasn’t there, that he had been moved to a regular hospital bed, because you only go one of two ways when you leave the intensive care unit; you either have improved to the point where you’re someplace like this or you leave because you’ve died.” THE COURT SAID THE DIFFERENCES BETWEEN THE TWO VERSIONS OF THE STATEMENTS ABOUT DEATH OR TRANSFER BY BOTH PLAINTIFF AND DEFENDANT WERE SO MINOR THAT THERE WAS NO FALSITY IN THE WEBSITE POSTINGS. In other words, the court indicated that the allegation about the statement was true.
Streisand effect at work... Any one who Google McKee is going to find the lawsuit and the decision against him.
ReplyDeleteNot that I mind you two quoting stuff left and right, but I'm more interested in scammers or scam victims yelling 'defamation' at each other, rather than personal vendettas... or delusions of such. What can be LEARNED from such a case between McKee and his patient? Sounds like the main thing to learn here is the Streisand effect: the more he tried to suppress it, the more it got covered. At the end he's spending money because he *felt* he had be wronged, and spent all these money for, what's in effect, NEGATIVE publicity about himself, that made him look either like someone who's willing to use his money to squash a complaint, or someone who has a chip on his shoulder out to correct PERCEIVED wrong regarding himself.
ReplyDeleteKasey Chang, your Streisand effect comments are supported at http://news.aapc.com/index.php/2012/12/when-social-media-becomes-a-social-piranha/ where Andis Robeznieks is quoted:
ReplyDeletePeople who sue people may receive more undesired attention than anyone else in the world.
That is the general idea behind the “Streisand Effect,” a phenomenon that occurs when an attempt to stifle publicity creates more publicity for something that might never have received much attention in the first place.
According to legend, the term was coined when singer Barbra Streisand tried to have a photo of her home—one among thousands of pictures that were part of an online display showing coastline erosion in California—deleted from that site. The ensuing publicity essentially guaranteed the image will never disappear from the Internet.
It could be unlikely that combative efforts to counter negative profiles on physician review websites will lead to a similar occurrence known as a the “Dr. McKee Effect,” but no one can predict how these things turn out.
The problem is sort of related to the easy access of information nowadays by everybody. Normally if you have something bad to say about your doctor, nobody except your friend or family will hear it. Nowadays with bazillion review sites your opinions can be read by thousands / millions / more. So people started paying attention to such.
DeleteAnd thus arise the job "reputation manager", who often claims ability to combat false claims and improve your public image, and some of those guys are quite shady.
Yelp already fights shill reviews. They sued a lawfirm not long ago for leaving shill reviews of itself.
And I've been on the receiving end of one such reputation manager when my review of a scam was taken down by a bogus complaint. One month later that business was closed by the SEC as the largest Ponzi scheme in US history (by number of victims).
Lawsuits is NOT the answer. IMHO, threats of lawsuits indicates a lack of faith in honesty by either party.
Paging Professor Streisand:
DeleteWHITEWATER, Wis. (AP) — 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, the Janesville Gazette reported (http://bit.ly/1hcjNmn ) Thursday.
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.
"I don't feel I've (gone) too far with my videos and comments because everything posted basically communicates exactly how Sally Vogl-Bauer treated me," Llewellyn said.
The lawsuit seeks punitive damages and attorney and trial fees. The case is scheduled to go a jury trial in September.
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.
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Information from: The Janesville Gazette, http://www.gazetteextra.com
It is unfortunate that defamatory and untrue statements are made against teachers, doctors, and other health care professionals online. The best advice it to be proactive and make sure you are monitoring what is posted about yourself and your practice through different websites, social media sites, and blogs.
ReplyDeleteBut only use threat of lawsuits as a last resort. it's the nuclear option, and it can blow up in your face.
Delete"But only use threat of lawsuits as a last resort. it's the nuclear option, and it can blow up in your face."
ReplyDeleteAfter losing defamation suits, plaintiffs seem to continue to feel defamed but cheated by legal trickery.
In Rahbar v. Batoon, the California Supreme Court declined to revive a dentist’s lawsuit against a patient who had posted a negative online review on Yelp.com. The patient, Jennifer Batoon, posted her critical review in August 2008, writing “DON’T GO HERE. MOST PAINFUL DENTIST EVER.” and voicing her displeasure with her dentist’s treatment choices, billing practices, and communication skills.
Dr. Rahbar denies these allegations and contends that both reviewers are lying about her. "I've suffered tremendously emotionally because of this," she told DrBicuspid.com. "I have nothing against online review sites, but I don't agree with defamatory speech." She said Yelp advertising representatives had approached her with an offer to prominently display a favorable review in exchange for a monthly fee, an offer that felt to her "like extortion."
After Dr. David Mckee's defamation claim against Dennis Laurion was dismissed, he said, “I’m very disappointed by this court’s decision because as far as I can see the only avenue that I can see that I had to respond to this overwhelming attack was through the courts, and for the time being it appears that avenue has been closed without me ever getting a chance to present my evidence,” Dr. David McKee said. “Dennis Laurion is a liar and a bully and a coward,” McKee said. “We need to change the law so someone with a personal vendetta who is going to use the Internet to make defamatory statements can be held responsible,” he said.
It’s a frustrating end for McKee, 51, who said he’s spent at least $50,000 in legal fees and another $11,000 to clear his name online after the story went viral, resulting in hundreds more negative postings about him — likely from people who never met him. “The financial costs are significant, but money is money and five years from now I won’t notice the money I spent on this,” he said. “It’s been the harm to my reputation through the repeated publicity and the stress.”
"I'm disgusted. I'm actually really disgusted," said dentist Mo Saleh, who tried to sue his former client, Spencer Bailey, for defamation after finding negative reviews on the Internet. "The reason I'm risking opportunity and risking this negative exposure is because I feel that this is wrong. When we walked into this courtroom, we didn't walk on equal footing because of the Anti-SLAPP law," Saleh said. "I teach my kids to stand up when you’ve been wronged, and I think that's absolutely disgusting what happened today," he said.
Dr. Jean Loftus of Fort Wright took Catherine Nazari of Greendale, Indiana, to court after she posted negative reviews of her plastic surgeon online after she said she suffered horrible scars and disfigurement from her procedures. "I can't stand by and let someone say absolutely false, disparaging, untrue statements, blatant defamatory accusations about me," Loftus said. Loftus said the comments Nazari posted online about her practice were not negative reviews. They were lies. She said Nazari had a previous nerve condition that is causing her medical problems. Her incisions were not even deep enough to reach her nerves according to Loftus. That is when she decided to sue Nazari for defamation. "I did not file this suit to make money or to win an award. I filed this suit to bring out the truth," Loftus said. Loftus disagrees. "It gives everybody the lead way to say whatever they want about anything they want and essentially hide behind the 1st Amendment," Loftus said, noting she is most concerned about the precedent her case has set.
ALL RIGHT: that's it. NO MORE.
ReplyDeleteNext person who post any more of these "lawsuit updates" gets flagged as SPAM.