Negative reviews posted on websites such as Better Business Bureau, Yelp, Glassdoor, and Facebook can be devastating to companies, and perhaps even fatal to small businesses and sole practitioners who rely on goodwill and word of mouth recommendations. Although the ill effects of a single negative review may be mitigated in cases where it is outweighed by positive feedback, businesses that suddenly find themselves vilified online are faced with several options: issue a public relations response, solicit positive reviews, write a cease and desist letter, commence a lawsuit, or wait out the storm. Each option comes with its own drawbacks: PR responses or solicited positive reviews may seem inauthentic. Cease and desist letters (usually then shared on social media) or lawsuits can make the criticized party appear thin skinned or vindictive. Waiting out the storm is a gamble, hoping that the criticism does not strike a chord.
In addition to being troublesome for their subjects, online reviews can attract liability on the part of their authors when criticism crosses the line into defamation. Earlier this month, the Ontario Superior Court of Justice released its decision in Zoutman v. Graham – a “cyber libel” case brought by a Kingston doctor who found himself the subject of negative online reviews after testifying as an expert witness in a clinical negligence trial. The plaintiff had opined on the quality of the care and treatment provided to the deceased, who died as a result of a post-operative infection. The action against the attending physician was ultimately dismissed by the jury.
The defendant of the defamation action – the brother of the deceased – admitted to having authored two negative posts on RateMDs.com. In these posts, the defendant rated the plaintiff’s helpfulness and knowledge as one star (out of a maximum of five) and described him as “arrogant, obstinate and condescending”, “dangerous and delusional”, and “[u]nable to distinguish between sepsis and pyo-myositis”. The Court accepted that the defendant had also authored another ten similarly-worded posts on RateMDs.com and OntarioDoctorDirectory.ca.
Despite the defendant’s assertions that he had merely sought to warn prospective patients, the Court held that his comments were defamatory and the defence of fair comment did not apply. The defendant had falsely portrayed himself as a patient and his campaign was motivated by malice. The Court granted the plaintiff $25,000 in general damages, $25,000 in aggravated damages, and a permanent injunction restraining the defendant from defaming the plaintiff again. The Court declined to award punitive damages on the basis that, as reprehensible as the defendant’s conduct had been, it was the product of grief as well as anger.
Acumen Law Corporation v. Nguyen was a similar case involving a Vancouver law firm. The defendant had hired the plaintiffs to represent him in a DUI matter but, unsatisfied with the adjudicator’s decision, sought a refund of his legal fees. After the plaintiffs refused, the defendant posted the following review on the law firm’s Google Plus profile:
I spent nearly $2000 for [lawyer] to lose a case for me that they seemed they didnt put any effort into. Anywhere else would be moore helpful.worstest lawyer.would not recommend [sic].
The plaintiffs alleged that the comment was defamatory and commenced an action against the defendant, who did not participate in the proceedings.
After noting the applicable standard as being whether or not the “the alleged defamatory words lowered her reputation in the estimation of right-thinking members of society generally, or exposed him to hatred, contempt or ridicule.” the Court expressed doubt as to whether the review was defamatory, noting that it had clearly been posted by a disgruntled client in the heat of the moment. Further, the Court suggested that the review’s poor grammar, spelling, and punctuation rendered it unlikely to be accepted as accurate by a reasonable, right-thinking person. The idea that poor spelling may invalidate a person’s opinion, or suggest that it need not be given weight when alleging defamation is a potentially problematic one, and it remains to be seen whether it finds traction in future cases, particularly given the lax (or absent) standards of spelling and grammar in online discourse.
The Court expressed doubt as to whether or not the words were defamatory as opposed to merely derogatory, and was critical of the plaintiffs for bringing the action, this disapproval being reflected in the award of only $1.00 in nominal damages. In reaching this result, the Court made the following remarks:
In this time when virtually everyone has instantaneous access to the internet, many use the internet to express their feelings without pause or reflection. Business people with Google Plus profiles or the like invite comments from customers. Surely no one can expect to receive all favourable reports. When choosing a lawyer or other professional or service provider, prospective customers reading such reviews would be naive to think that anyone or any business would receive all positive reports. As the adage goes, you can’t please everyone all the time.
The hands-off approach employed by online review websites, or other social media platforms, is predicated on our acceptance that they are a mere “platform” and not publishers, and that it is for users to police the content. There is increasingly a debate as to whether or not these “platforms” should in fact be responsible for policing content to a greater degree than they do and whether, having effectively given a megaphone and a soapbox to the disgruntled, they can ignore the content, or effects, of what is said.
Moderating speech is a particularly thorny question for platforms which solicit customer and employee feedback, as they derive their value from being unfiltered and independent – indeed, their subjects are generally restrained from self-editing their own profiles or comments thereon. However, where harassment masquerades as opinion, the question is increasingly being asked as to whether or not, and how, these platforms should bear some responsibility for disseminating it.
While the plaintiff in Zoutman resolved his claim against RateMDs.com before trial, future court decisions may provide more clarity as to online review platforms’ role in balancing expressions of authentic opinion with the right to protect one’s reputation.
*With thanks to Sarah Hannigan, articling student for her assistance in drafting this blog.
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