THE HEADLINE READS I wrote a negative Yelp review — and it made my life a nightmare1
The story has “grown legs” and now pops up in multiple on-line publications,
BASICALLY, a Manhattan woman who gave one-star reviews on Yelp and ZocDoc to a Kips Bay gynecologist has spent nearly $20,000 defending herself against a defamation suit filed by the physician, according to her and court papers.
Meanwhile, the doctor’s lawyers insist that “No reasonable person would believe that the statements made therein were opinion,’’ court papers say.
The defendant told the Post that “They tried to drag my start-up wine-and-spirits technology business into it … They posted my entire medical record, including notes about my mental health, my bills, my insurance info, my driver’s license, birth date and home address”
Lawyers on both sides will have a field day on the way to the bank. The Federal government also might get involved (Health Insurance Portability and Accountability Act of 1996 a/k/a HIPAA) if the patient’s claims (They posted my entire medical record, including notes about my mental health) are proven.2
I AM NOT A LAWYER ...
Nor do I play one on tv.
I am a former print reporter and editor who is generally cognizant of libel/slander and defamation laws.
In every state in which I worked, truth is an absolute defense. HOWEVER, in a different Yelp! Case, Noonan v. Staples, Inc., the First Circuit reinterpreted Massachusetts’s libel statute by lowering the standard to prove actual malice in libel suits.3 The Suffolk Law Review file continued: The court in Noonan interpreted Massachusetts’s libel law as only including truth as a defense to libel where the bloggers making the statements lack “actual malice” or “ill will” towards the defamed individual.
That, however, is Massachusetts’ law and may not apply to New York (or any other state).
The problem with libel/slander and defamation suits, at least for publishers is that even if the publisher has exceptional libel insurance the publisher will have to spend time in court. Lost productivity can be expensive.
Two things publishers, even blog publishers, need to know about are noted at the end of my efforts:
- Plagiarism - CITE YOUR SOURCES
- Truth is an absolute defense to defamation
The Massachusetts’ law will effect only those who are trying to “get even” and go beyond facts to opinion.
I used to have a great personal physician, but his office staff was less than could be desired. That is a provable fact. (To be fair, the office folks reportedly are doing better now.) There was no malice in my postings; they were made as a warning to others regarding what to expect from the front office.
It is very difficult to libel a person who is not identifiable – “a baker in Atlanta” is probably broad enough to defuse the threat of libel; being more specific is encouraging a reaction from the “baker.”
Unfortunately for both the plaintiff and the defendant in the New York doctor-vs.-patient flap, both parties are identified in several on-line publications
AN ASIDE: Citing a source (e.g., Suffolk Law Review) may NOT be sufficient if the blogger copies most of the original author’s work; for that permission from the owner of the work must be granted.
BOTTOM LINE: It’s OK to complain about people and organizations as long as the complaint can be proven and (in Massachusetts at least) there is no malice in the complaint.
Just remember: I am not a lawyer nor do I play one on tv.
Sources
1. New York Post (http://tinyurl.com/y8ofmsu4 )
2. HIPAA (http://tinyurl.com/y8jkal89 )
3. Suffolk Law Review (http://tinyurl.com/ycyjsqcy )
PLAGIARISM is the act of appropriating the literary composition of another, or parts or passages of his writings, or the ideas or language of the same, and passing them off as the product of one’s own mind.
Truth is an absolute defense to defamation. Defamation is a false statement of fact. If the statement was accurate, then by definition it wasn’t defamatory.
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