The Recent Defamation Lawsuit Targeting a Posting on the Consumer Review Site Yelp.com: Will It Succeed?

Editor's Note: At the time this column was published, the parties in this case have reportedly reached settlement.

A recent lawsuit is seeking damages for defamation based on a posting on the popular site Yelp.com, where consumers rate products and services. However, as I will explain, the suit is unlikely to succeed unless the plaintiff can show both that the posting was untrue, and that its content was not of public interest.

The Facts and Proceedings
In 2006, California resident Christopher Norberg was injured in a car accident, and sought treatment from a chiropractor, Dr. Biegel. In 2007, after they had a billing dispute, Norberg posted a negative review on Yelp.com, giving Biegel only one star, the lowest rating.

In February 2008, Biegel sued Norberg for defamation and "false light" invasion of privacy. Biegel claims that Norberg's review contained false statements suggesting that Biegel was dishonest and that his billing practices were improper. Biegel also claims that he lost clients and that his reputation was harmed as a result.

In his posting, Norberg claimed that he had expected a bill of $125 from Biegel, but received one for over $500. Norberg also stated that when he called Biegel to inquire, Biegel "couldn't give me a straight answer as to why the jump in price" and agreed to charge only the original $125.

Biegel's complaint alleges that Biegel later called Norberg and explained that his office bills insurers at a higher rate than patients who pay for service directly, because of the higher administrative costs of processing insurance paperwork and delays in payment from insurers.

. Norberg's review put it differently: It said that Biegel "called me back to cover his ass... [and says] he runs a business and would stick it to insurance companies."
Norberg eventually removed the review, a few days after receiving a letter from Biegel's counsel threatening a lawsuit.

Why California's Anti-SLAPP Lawsuit May End This Case

To win his case, Biegel would have to show that Norberg made false statements of fact – not just opinion. In addition, it seems probable that Norberg will bring an early "anti-SLAPP" motion, and Biegel would need to defeat that motion.

To combat lawsuits designed to quash free speech, California passed an anti-SLAPP statute. ("SLAPP" is an acronym for "Strategic Lawsuits Against Public Participation"). Under the statute, a defendant can bring a motion to strike the complaint immediately, rather than incur expensive legal fees as the case proceeds indefinitely. In response to such a motion, a court will decide whether the relevant speech is protected free speech, and if so, whether the plaintiff has demonstrated a probability of prevailing on the merits (that is, whether he is likely to succeed on his claims in court). If the plaintiff cannot make that showing, the plaintiff's complaint is struck.

The statue applies to (among other statements and conduct) "any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest," and "any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest." (Emphases added.)
Thus, Norberg will need to establish a public-interest dimension to his posting to prevail on an anti-SLAPP motion.

California Precedent on Review Websites and Defamation Claims

In California, there are several precedents regarding review websites:

The first is European Spa, Inc. v. Kerber, decided in August 2008. The case arose after a Yahoo.com user posted a negative review of European Spa. The review noted: "My first impression was its tacky décor. Then I encountered an extremely rude European gentlemen, I believe this is the owner. From what I could see, the employees are miserable and tired." The review also mentioned "mildew and brown spots on the walls." The reviewer stated finally that "I will never go there again, and I will make sure I will tell as many people as I can about the horrible experience that I had." Another post, supposedly by another patron, was equally negative about the facilities.

The owners of the spa believed that these negative posts came from a former employee who had opened her own spa, rather than from actual customers. (As it turned out, the owners were correct, but they suspected the wrong employee.) The owners sued the former employee, who in response brought an anti-SLAPP motion. She claimed that whether or not she was the person who had made the posts, they were protected as free speech. The court saw no "public interest" element, reasoning that the reviews did not encourage any discussion over larger consumer or societal issues relating to the spa industry.

By contrast in Gilbert v. Sykes, a 2007 case, a California court did find a "public interest" element in an Internet review. In Gilbert, the negative reviews in question focused on medical procedures rather than spa treatments. There, a patient created a Web site that included a negative description of a patient's experiences with a prominent plastic surgeon. The same site also published information for other consumers interested in plastic surgery. The court concluded that site's assertions that the surgeon had produced "nightmare" results helped to generate public discussion about the costs and benefits of plastic surgery in general.

In 2008, the California Second District Court of Appeal considered another case relating to health care. In Kim v. IAC/Interactive Corp a negative review posted about a dentist on Citysearch.com was at issue. It read as follows:

"Don't go there-worse [sic] dentist in Glendale

I do not recommend Dr. Kim. I randomly selected him as my dentist but after my initial visit, I was very discouraged. He made it very clear that he did not like HMO patients (which I was). His attitude towards me was poor as if I was a second-class citizen. I waited 5 weeks to schedule an initial visit, and he made me wait another 6 weeks to schedule my first cleaning. "Because you're an HMO patient, we cannot schedule you at convenient times." He is also understaffed. His receptionist doubles as his dental assistant. She was quite unprofessional and made comments about my age and marital status when I turned in my patient information card. All in all, DO NOT use this dentist!"

The dentist filed a complaint and subpoenaed the records from Citysearch, and then filed an action against the poster, Citysearch.com, and other defendants. In response, the defendants filed an anti-SLAPP motion, which the trial court granted. The appeals court affirmed based solely on the fact that the dentist was unlikely to prevail in his lawsuit – based on the weakness of the underlying defamation claim. The appeals court never considered whether the review was a matter of public interest, but may well have found the speech protected.

The Norberg Suit Likely Will Also Be Deemed to Satisfy the Public-Interest Requirement

In my view, the cases involving opinions about medical or healthcare professionals do involve matters of public concern. Future patients benefit greatly from feedback about such practitioners – good and bad. Moreover, they can discount a negative review if there are many other positive ones on a particular site, or resulting from a particular Google search.

In the defamation case against Norberg, it may well be that his evaluation of the billing practices of his chiropractor would be considered a public issue deserving of protection. The issue is larger than just that of the treatment Norberg himself received; it goes to the issue of whether doctors should be allowed to charge insurers and individuals different fees in connection with the same medical treatment and if so, what is the justification?

There are, of course, other ways to resolve issues relating to negative feedback. First, the parties can try to resolve the matter with one another. This route seems to have been tried unsuccessfully early in the Norberg case, but now they have been ordered to have a mediation conference, which may prove more successful.

In addition, the plaintiff can often post a reply to the initial review. Indeed, new sites – such as teacher-rating sites -- are emerging where responses are encouraged. If responses are welcomed, and seem to be effective, it may become easier to keep disputes like these out of the courts entirely.