Tuesday, May 29, 2018

This is Free Speech?

I’ll be the first to admit that I don’t like Yelp very much, as you may have noticed from previous posts in this space about the company. It’s not that there’s anything wrong with providing an online location for people to record their frustrations about various companies with whom they have done business, but the company’s occasional attempts to strong-arm small business owners for money (in order to avoid negative reviews) annoy me, and the fact that they have become a haven for trolls, enemies, hysterics, and blackmailers has eroded both my respect for the company and my patience with the people who post there. But as outrageous as I find fake reviews made for the purpose of damaging persons or organizations, whether for extortion or just for the fun of random destruction, I have to admit that suing people over truthful reviews because you don’t like what was said may be even worse…

Consider, if you will, a case appearing in the New York Post this week about a woman who had an experience with a doctor’s practice that was so bad she felt compelled to leave negative reviews on Yelp and two more specialized review sites telling other potential patients to steer clear. No one on either side has claimed that she did so in order to extort money (or anything else) from the doctor or the practice, but they are claiming that the reviews are a baseless attempt to make the doctor and/or the practice look bad. In suing the woman who left the reviews, the plaintiff’s attorneys have stated that the doctor is a highly qualified practitioner with the best possible training and therefore couldn’t possibly have committed the annoying and possibly fraudulent acts the defendant’s reviews describe…

Now, we should probably acknowledge that neither you nor I were present during these events, so we couldn’t really draw any conclusions about the case even if we both had law degrees. It is entirely possible that, as the doctor’s attorneys are claiming, there is no truth to these allegations, and the reviews were made entirely by the defendant out of personal animus. It is equally possible, however, that all of the things in the reviews are accurate, and the plaintiff in this case is using his greater financial resources to attempt to silence a disgruntled former patient. What is not in dispute by either party is that the defendant has already had to scrape together in excess of $20,000 in legal fees to defend herself against a suit that has not even gone to court yet…

If it turns out that the defendant was telling the truth all along it is possible that the court will rule in her favor, but that won’t be much comfort if she ends up losing the start-up business she has been developing and going bankrupt trying to pay her legal fees. On the other hand, if the claims made in the reviews were baseless, the doctor is entirely within his rights to sue to recover the damages those reviews have cost his business, although I am skeptical as to whether those are really in the million-dollar range. What seems obvious to me is that, regardless of the merits of this case, there is almost certainly a non-zero percentage of the negative reviews on Yelp that do have a factual basis – and in such cases, even if the person leaving the negative reviews has hard evidence that supports their comments, there is a real chance of their life being ruined by a punitive lawsuit…

One could also argue that I’m being unfair in blaming the people at Yelp for any of this, I suppose. The truth is that in an increasingly interconnected age, everyone needs to be more careful about what they say in public, and that includes things they post on a public website. Blaming Yelp for cases like this one could be compared to blaming the owners of a bar for the damage done in a fight that breaks out there. But I would also point out that there is a reason why bars have bouncers, why bartenders are allowed to cut belligerent drunks off before they get too obstreperous, why troublemakers can be (politely) asked to leave before anyone gets hurt…

And there is also a reason why you should be careful who you pick a fight with in a bar, no matter how good an idea it might have seemed at the time…

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