Hurdles to Bringing a Defamation Suit for an Online Review

Courts and the legislature alike have made it difficult for doctors and business owners of all kinds to succeed on a defamation claim for an online review, often treating these lawsuits as attempts to silence freedom of speech.

First, a website that publishes a negative or untruthful online review is generally protected from liability under Section 23 of the Federal Communication Decency Act. The protections under this statute apply when the internet service provider merely publishes user-generated content as long as its actions do not arise to the level of a content provider. Factors considered in determining if the website's actions arise to the level of a content provider include whether the website reviews material before publishing, edits the materials or decides on a case-by-case basis whether to publish the material.  A website's failure to verify the content of material created by third parties does not make it the content provider for the false or defamatory statements placed on the website by a third party. See Prickett v. infoUSA, Inc., 561 F.Supp.2d 646, 651 (E.D.Tex. 2006) (Failing to verify accuracy on a listing provided by a third party does not remove this case from the immunity provided by § 230).

Second, while remedies against a website are blocked in most instances, many states have also put in place anti-SLAPP statutes to protect individuals posting online reviews.  These statutes pertain to "strategic lawsuits against public participation" and were created to protect free speech that might be stifled by the threat of costly litigation over a non-flattering review.

Texas originally codified its anti-SLAPP statute on June 17, 2011 and further clarified and strengthened the statute effective June 14, 2013.[1] Under the statute, the burden of proof is initially on the party who filed the anti-SLAPP motion (the online reviewer) to establish by a preponderance of the evidence that the lawsuit was filed in response to the exercise of his/her First Amendment rights. Then the burden shifts to the plaintiff to establish by clear and specific evidence a prima facie case for each essential element of the defamation claim. The statute provides for mandatory fee-shifting when a party wins an anti-SLAPP motion so that the person or entity wrongfully filing a lawsuit must pay the other side's defense costs. There is also a discretionary fee award if the court finds that the anti-SLAPP motion was frivolous or brought solely for the purpose of delaying the proceedings. The statute provides an immediate right to an expedited appeal if the anti-SLAPP motion is denied.

In addition, most anti-SLAPP statutes allow for sanctions against the party who brought the defamation action if necessary to deter the party from bringing similar actions in the future.  Washington State’s anti-SLAPP statute even provides for mandatory sanctions of at least $10,000.[2] Because of the possibility of sanctions and paying the reviewer's attorney's fees, it is critical to fully understand the strength of your defamation claim before filing a lawsuit against a reviewer.

And third, in the event a physician is successful in its defamation claim against an online reviewer, that does not mean the review will be taken down. Rather, the attention from the lawsuit may drive far more viewers to read the review, which could remain online indefinitely.

In offline defamation cases, even after a statement is found to be defamatory, permanent injunctive relief is not available to prevent the defendant from repeating the defamatory statement again in the future, repeating the statement would just be grounds for a new claim. Allowing for permanent injunctive relief in such situations is considered a prior restraint on speed and has been held unconstitutional.

The Texas Supreme Court is currently presented with its first opportunity to establish whether the rule against permanent injunction relief in defamation cases will be upheld in the internet age or whether defamatory content can be ordered removed from the internet. See Kinney v. Barnes, 03-10-00657-CV, 2012 WL 5974092 (Tex. App.-Austin Nov. 21, 2012, pet. granted). The case does not involve an online review but rather an employer who allegedly posted defamatory remarks about a former employee in an online blog post.  A Travis County trial court initially dismissed the case, ruling that removing content from a website, even if it is false, is an “impermissible” prior restraint on speech. The 3rd Court of Appeals upheld the dismissal in 2012. If the Supreme Court reverses the lower courts' rulings, the case could give Texas courts the power to order the removal of false statements from the internet.

To see how physicians are trying to get around these hurdles, look for my follow-up blog post: Are Non-Disparagement Clauses a Good Idea?

[1] Texas Civil Practice & Remedies Code, Chapter 27.

[2] See Wash. Rev. Code 4.24.525.