Wednesday, May 30, 2018

The hazards of posting negative reviews on fora such as Yelp

New York's CBS Channel 2 posted a story titled Manhattan Doctor Sues Patient For $1 Million For Posting Negative Reviews Online
about a woman, Michelle Levine , being sued by a doctor for posting negative reviews of the doctor on Yelp, Zocdoc, and Healthgrades.

Within the CBS2 post were some suggestions for posting:

Truth is an absolute defense,” attorney Steve Hyman said. “If you do that and don’t make a broader conclusion that they’re running a scam factory then you can write a truthful review that ‘I had a bad time with this doctor’.”

Other experts say it’s important not to make broad generalizations.

“If you’re going to make a factual assertion, be able to back that up and prove that fact,” Evan Mascagni from the Public Participation Project said.

CBS2 did not get into the opinion defense. which has been covered, for example, by Reporters Committee for Freedom of the Press, in the post titled
Opinion defense remains a strong tool in defeating defamation claims The RCPF post noted the case Milkovich v. Lorain Journal Co.:

The Milkovich Court described two broad categories of opinion protected by the First Amendment.

The first involves statements that are not “provable as false,” meaning the language cannot be proved true or false by a core of objective evidence. This category of opinion also involves a statement of subjective belief based on disclosed true facts. The Milkovich Court offered the following example of a statement of non-provable opinion: “In my opinion Mayor Jones shows his abysmal ignorance by accepting the teachings of Marx and Lenin.”

The second category described by the Milkovich Court involves statements that “cannot reasonably [be] interpreted as stating actual facts,” meaning “loose, figurative, or hyperbolic language which would negate the impression that the writer was seriously maintaining” an actual fact, or where the “general tenor of the article” negates the impression that actual facts are being asserted.

The RCPF post also gets into Mehta v. Ohio University, previously discussed on IPBiz, and of relevance to the recent Third Circuit case
Kenny v. Denbo, CA3, No. 17-2342 [ On ending disputes prematurely. Baseball and university professors. : "The District Court arguably erred in finding
that Denbo’s statements were mere opinion rather than factual." ]

**Separately, of --the language cannot be proved true or false by a core of objective evidence --, see the IPBiz post
CAFC tackles "substantial evidence" in Ericsson v. Intellectual Ventures; PTAB reversed . The dissent believed that the objective evidence did not show the '480 patent disclosed frequency hopping; the majority did.

**Of Mehta, see for example the 2006 post on IPBiz:

***UPDATE. 31 May 2018

Just got an ad from PLI Press for "Sack on Defamation", which included:

Judge Sack pinpoints practical legal issues vital to your clients, helping you understand:

when "truth" is not a defense
when insults and name-calling cross the line into defamation
when accurate repeating of another's statements can be actionable
when "public disclosure of private facts" becomes actionable
when statements of "opinion" are not protected, and
when defamatory communications are privileged.


Plumbers' Union Local No. 12 Pension Fund v. Nomura Asset Acceptance Corp., 632 F.3d 762, 775 (1st Cir.2011) ("An opinion may still be misleading if it does not represent the actual belief of the person expressing the opinion, lacks any basis or knowingly omits undisclosed facts tending seriously to undermine the accuracy of the statement. Liability may on this theory also extend to one who accurately described the opinion." (citations omitted))

Statements of opinion are actionable when the “statement was both objectively false and disbelieved by the defendant at the time it was expressed.” Fait v. Regions Fin. Corp., 655 F.3d 105, 110 (2d Cir.2011).


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