A New York doctor angry about what he considers slanderous reviews on the website Yelp has filed another lawsuit aimed at silencing his critics.
The only thing surprising here is that this doesn’t happen more often, and that attorneys haven’t seriously gone after deep-pocket publishers like Facebook, Twitter, Nextdoor and more.
Attorneys familiar with libel law say the latter action would be difficult, but difficult is not impossible. And a case could be made that social media sites profit from creating a toxic, social environment.
Attorneys have had some previous success going after social media users. A North Carolina woman was reportedly ordered to pay $500,000 after defaming another woman in 2017, and actor James Woods has been closing in on a Twitter user who accused the actor of being a cocaine addict.
If you’re familiar with social media, you already know you can sign in at almost anytime and find someone making some claim that would be actionable if it appeared in your local newspaper.
According to the website MedPage Today, Yelp reviewers accused New York Dr. Muhammad Mirza of being a “scam artist” and watering “down the Botox. He will not spread the Botox and will try to rush you to buy more fillers that you don’t need.”
Scamming people out of their money is generally considered a crime. Accusing private citizens of crimes constitutes libel or slander unless the claim can be proven true or the authorities have claimed it is true.
Both of those are solid defenses, although the latter technically requires you cite the source, ie. “police said” or that over-worked “allegedly.”
There are exceptions, of course. In the interest of democracy, the Supreme Court of the United Statues (SCOTUS) has held that you can say pretty much say anything you want about elected officials and nearly as much about public figures.
Thus when it comes to Donald Trump, Joe Biden, Elizabeth Warren, Sarah Palin, Alaska Gov. Mike Dunleavy, Anchorage Mayor Ethan Berkowitz, or your local assemblyman, you can bash away at will.
Palin – Alaska’s former half-term governor and failed Republican candidate for vice-president – was famously famous for being angry about this after her 2008, national election loss. She lashed out at “some blogger probably sittin’ there in their parent’s basement wearing their pajamas blogging some kind of gossip or lie.”
More than a decade later, in the Twitter-swarming world of 2019, Palin’s complaint seems almost tame. You can go online now and find far worse being said about any candidate for President – Democrat or Republican – than was ever said about Palin.
But for those who seek the limelight this has for a long time been considered largely OK.
The nude-filled, men’s magazine “Hustler” in the 1980s accused the Rev. Jerry Falwell, the founder of the Moral Majority, of having sexual relations with his mother and a goat, and got away with it.
Falwell was fictitiously quoted stating “I never really expected to make it with Mom, but then after she showed all the other guys in town such a good time, I thought ‘What the hell!'”
Hustler’s Falwell parody was so over the top only a fool would have believed it. Think “fake news” before there was “fake news.”
But Falwell didn’t take it well given that he and Hustler had a history.
“For years, Falwell – who exercised his significant political capital championing conservative causes and bemoaning the porn industry – consistently singled out publications like ‘Hustler,’ and its owner Larry Flynt, as corrupting players in American life,” Andy Hoglund would write at Rolling Stone years later. “Flynt, in particular, typified ‘sleaze merchantry.'”
So Falwell sued, and the case went all the way to SCOTUS. The court in 1987 held unanimously for Flynt and Hustler with Chief Justice William Rehnquist writing that the parody could not be “reasonably be understood as describing actual facts about [Falwell] or actual events in which [he] participated.”
Rehnquist went on to observe that just because people “find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection.”
OK. So you could say the court under Rehnquist was actually arguing in support of fake news, but never mind that.
Private v. public
What the court did not do – what it has never done – is to extend the almost-anything-goes standard to private individuals. The courts have long held that most citizens are entitled to more protection from defamation than politicians or others who seek the limelight.
When some lost motorist pulls into your driveway to turn around, and your camera captures a photo of her, and you post it at Nextdoor asking “who knows this thief,” you’re treading on dangerous ground.
Defamation laws don’t require you name the thief only that you identify the thief. When Susie Q. signs onto Nextdoor and sees that she’s been identified as a thief for all her friends to see, well, she has a right to be angry and a legal right to take action provided she has no history of thievery.
Given the trash talking in social media, this example is admittedly rather mild. It’s frankly amazing the things people type into the tubes.
Mirza has decided he’s had enough of it.
“As with many cosmetic treatments, patients often find that the results of Botox injections do not live up to their expectations,” the filing says.
Yelp allows people to post comments anonymously. Mirza claims he had to sue Yelp to get the identities of the posters named in his latest suit. There is considerable debate about whether anonymous posters are worse than those who attach their names to post.
Before the arrival of Facebook, news organizations that allowed anonymous online comments on their websites believed that if people were forced to use their real names, comments would become more civil. They didn’t.
Some websites now employ logarithms or other methods to monitor comments for unsubstantiated, personal attacks and possible libel.
Mirza told MedPage that as a successful physician “he has the resources to pursue fake or libelous reviews, but acknowledges that’s not the case for most small businesses. ‘We need to pass legislation so that libel or defamation laws can be easily implemented in a cost-effective fashion for small businesses,’ he said.”
The same is true for individuals, most of whom lack the financial resources Mirza references. But there is no easy fix given that a lot of business complaints arise from legitimate differences of opinion about what was promised and what was delivered, and the tangle of grays in personal disputes is only worse.
Ideally, the simpler solution would be if everyone on social media acted like they were writing a post to explain things to their sweet old grandma, but that would be a Christmas miracle, and miracles are rare.