by Paul Alan Levy
At a time when the California Supreme Court is deciding whether to grant discretionary review of the decision of the California Court of Appeal in Hassell v. Bird, which held that Yelp could be required to comply with a default judgment holding that a posted review of a California lawyer was false and defamatory, along comes a situation that crystallizes concerns about judicial willingness to impose such orders on sites that host consumer content.
Matthew Chan, a resident of Columbus, Georgia, posted a series of reviews (for example, on Yelp) complaining that Mitul Patel, a dentist in Suwanee, Georgia, had induced Chan to visit his office by advertising an inexpensive dental cleaning deal. However, Chan reported that he was confronted with a hard pitch for additional, more expensive services, and Patel allegedly lost interest in providing the cleaning when Chan was not agreeable to buying additional services. I am in no position to say whether Chan’s criticisms of Patel are fair or accurate, but Patel’s sneaky response to the criticism, instead of just suing his detractor in the Georgia courts, tends to suggest that Chan might well have reason to complain.
Over the past few years, businesses seeking to suppress customer criticisms on review sites such as Yelp have tried to devise a variety of ways to insulate themselves from fair commentary; this blog has covered such devises as non-disparagement clauses, copyright assignment agreements, TRO’s obtained from compliant local judges against distant defendants, ex parte proceedings, and plain old SLAPP suits. In several cases, we have come to the aid of review sites asserting their section 230 immunity from liability or suit based on content posted their sites by consumers, even when the plaintiff has obtained a default judgment commanding removal of allegedly defamatory reviews. We have argued that hosting sites are often skeptical about whether such judgments reflect a sound neutral determination that the review was false, and properly consider the possibility that the judgement reflects no more than a consumer defendant's lack of resources for defending his or her criticism.
This spring Techdirt reported on a pair of California lawyers who developed a specialty of obtaining bogus judgments in a rural state court against postings on Pissed Consumer, not for the purpose of compelling that site to remove critical material (it flaunts its policy of not complying with orders directed to its users), but rather in the hope of persuading Google removed certain URL’s from its search listings. The result of this report, I believe, was to make Google more cautious in responding to orders against reviews posted by the users of interactive web sites
The audacity of the recent litigation pursued pro se by Dr. Patel against Chan rivals the shenanigans reported by Techdirt, and the sad fact is that Patel was able to play on the credulity both of a judge and of some web site hosts to get some of the criticisms taken down, at least initially.
Mitul Patel’s Response to Matthew Chan’s Criticisms
In addition to posting his reviews of Mitul Patel on Yelp, Chan posted on RateMDs, kudzu.com and Healthgrades.com about his unsatisfactory experiences with Dr. Patel. Chan’s is but one of a number of negative reviews directed at Patel on these various sites, but Patel apparently took particular umbrage at this one: he filed a pro se libel action claiming, in highly conclusory terms, that the reviews were false and defamatory. But instead of suing Chan in Georgia, Patel filed in the circuit court for the city of Baltimore, Maryland, a court that would ordinarily have no personal jurisdiction over a Georgia consumer sued for criticizing a Georgia dentist. Patel justified suing there by identifying “Mathew Chan” as the defendant – note that the spelling of the given name is slightly different – and alleging that this Mathew Chan “maintains a primary residence located in Baltimore, Maryland.”
I tried to reach Patel to ask for his explanation of what and where he filed. I wanted to find out why he believed (if he really believed) that someone supposedly living in Baltimore, with a slightly different first name, was his former patient from Georgia? The fact that the both the online docket for the case, and the “consent motion for injunction and final judgment” bearing a signature for “Mathew Chan,” list his address as 400 East Pratt St. in Baltimore implies to me that this is a case of deliberate fraud, because so far as I have been able to determine, 400 East Pratt Street is a downtown building that contains only offices, retail establishments and restaurants, but no residences. Patel never responded to my inquiries.
The judgment declares that reviews posted on five separate web sites are false and defamatory, and orders the “Defendant” to remove them. But at the same time, the judgment anticipates that the defendant might not remove the reviews; it directs Patel to submit the order to the five hosting web sites as well as to “any other Internet search engine” so that the comment can be removed “from their web page pursuant to their existing policies concerning the delisting of defamatory material.” A state trial judge named Philip Senan Jackson duly signed the consent order.
How the Hosting Companies Responded
It was only at this point that the real Matthew Chan – the actual author of the negative reviews – learned of the proceedings, when Yelp notified him of the receipt of the court order and indicated that it would take his review down absent a persuasive response. But after Chan explained to Yelp how the order had been fraudulently procured, Yelp has decided to leave the review posted.
Yelp’s response to receipt of the court order was more responsible than some of the other sites where Chan had posted his concerns. Both HealthGrades.com and Kudzu.com apparently received the order and removed the review without the courtesy of any notice to Chan. I have been in touch with representatives of both review sites. HealthGrades’ response was somewhat contradictory: first I was told that the company had simply complied with the terms of the court’s order, but then its representative claimed that the order was unrelated to the removal of Chan’s review. Kudzu's representatives tell me that they are investigating the situation. (RateMDs never removed Chan's review; my effort to reach its new owners has not yet succeeded).
Under section 230, the hosts of consumer comment have every right to make their own policies about how to respond when there are judicial proceedings over their users reviews. If suit against the user is successful, they are entitled to leave the reviews posted; they can empower the users to decide whether the reviews remain online; or they can effect the removal unilaterally. But you would think that the responsible host would, at the very least, notify a user when it is considering whether to remove that user’s review, and give the user a chance to respond. That neither HealthGrades nor Kudzu gave notice to Chan before taking down his review does not speak well of them. We can still hope that they reverse their knee-jerk removal decisions now they have have been told about how that they were victimized by this sort of maneuvering, thus showing their commitment to the consumers whose reviews they solicit and to presenting a fair balance of reviews to all consumers.
Although I place most of the blame for this situation on Patel's apparent dishonesty, and on some review sites' pusillanimous response, it seems to me that Judge Jackson should have been more careful. To be sure, he was presented with what purported to be a consent order, signed by both sides. But because the order he was being asked to sign called for removal by third party hosting sites (although, strictly speaking, it does not order them to effect removal), he should should have taken care to ensure that they had notice before he issued the order. And the identification of a downtown office building as the address of the Georgia consumer who was being sued for criticizing a Georgia dentist should have alerted him to inquire further.