by Paul Alan Levy
Here at the Consumer Law and Policy blog, we worry about the chilling impact of both lawsuits against consumers’ speech and heavy-handed cease-and-desist letters demanding the cessation of such speech, on consumers’ ability to use the comment on business. We regularly discuss these situations, and at Public Citizen we often represent consumers (and the hosting sites as well) with a view to furthering the Internet’s promise of a balanced forum where both businesses and consumers can promote their respective points of view. The out-of-pocket expense of a legal defense, even with a free lawyer, can be prohibitively high.
But consumers sometimes get it wrong in their posts; sometimes they even say false things intentionally, and even, perhaps, to get revenge for undisclosed ulterior reasons, or to achieve financial leverage for undisclosed negotiations. Libel law can be an effective counterweight that not only protects a plaintiff’s reputation from an undeserved smear but helps preserve the utility of review forums for all concerned. Yet there are often disincentives to filing suit even when the suit would be meritorious — not just the cost, but the danger that news about the litigation will spread the criticism even further (the Streisand effect) and can, by itself, cost the plaintiff more customers (when there are many alternatives, for example, who wants to hire a litigious doctor who sues over criticism?). Taking the legal course, and even threatening litigation, certainly ought to be a last resort, whether from the perspective of the business (I recently praised an article about this by Neg Norton) or from the perspective of public policy in a culture that values the marketplace of ideas as a means of reaching truth.
The "Good" Demand Letter
A civil request for removal of matter that is claimed to be illegal in some way is a sensible way to begin, after other efforts to deal with the problem have failed. A recent Popehat post addresses the question of how to craft a request for removal without making matters worse through the Streisand effect. Drawing from linked examples of demand letters that went awry, Popehat advises that parties sending letters understand the law and the facts, particularly including the defenses that the recipient of the letter will likely think applicable, and not try to use threats of litigation in cases where there is no realistic likelihood of success. When the would-be plaintiff decides to proceed, Popehat suggests a polite, low-key letter that contains a detailed description of the problem and addresses and rebuts reasons why a neutral Internet user might well assume that the speech is protected, rather than making vague references to causes of action and heavy-handed threats of huge damages and legal costs. The blog also suggests knowing yourself, and your potential adversary, considering reasons why either might create particular potential for the demand to go viral, and understanding various aspects of Internet culture. It is a fun read, and generally sound advice.
Suing Without Looking Like a Bully
A recent libel case brought here in DC struck me as a litigation equivalent of Popehat’s advice about cease and desist letters. As reported on DCist, a cosmetic physician sued a patient over criticisms that she made on Yelp and elsewhere not only claiming that the procedure he performed was likely a scam (probably nonactionable opinion), but contending that the procedure put a scar on her face. The physician has sued for defamation, contending both the timing of the scar was scientifically suspicious (he asserts that the reported scar could not have formed that quickly) and that a “before” photograph that he located online showed that the patient already had such a scar in the same location that the patient said he had scarred her. (The precise post is quoted in the DCist article and can currently be found on the patient’s personal Yelp page, although if my assessment of the two sides is right, it may not be there for long.)
The doctor hired a local lawyer to send a demand letter whose content seems to me to fit the approach recommended at Popehat. In addition to reciting the facts, the letter suggests that the patient was demanding financial compensation to avoid the criticism (the doctor provided me with the patient's complaint to the Better Business Bureau which asked that she paid for having the scar fixed). If that is so, and if, in fact, the scar was preexisting, one can certainly see this as a potentially valid libel suit, and understand why the doctor, after trying without success to defuse the dispute by speaking with the patient himself, chose to file suit.
What particularly interested me about the way he sued, though, was that instead of filing a complaint for a significant amount of damages, he filed in the Small Claims Division of DC Superior Court and limited his claim to the $5000 jurisdictional limit. In this way, he kept the focus on the truth or falsity of the statements and not on an outsized demand for damages. The doctor, to be sure, did not do it for that reason — when I talked to him, he explained that the demand letter itself was expensive, and he did not want to spend the money needed to hire a lawyer to represent him in regular court.
This may not work out for the doctor, because the Yelp statement and the Better Business Bureau Complaint were about Varano’s company, Medical Cosmetic Enhancements, but never mentioned Dr. Varano himself. The company cannot proceed, even in DC's small claims court, without counsel, and Varano cannot sue for defamation unless the challenged statements are “of and concerning” himself. On the other hand, depending on how strong her arguments against the libel action prove to be, it may well not be in the plaintiff’s interest to force the doctor to hire a lawyer and thus give him an incentive to ask for more damages so that he can cover the legal costs.
It will be interesting to see how this case develops.
UPDATE: From the term used by a party in declining to say what happened in court today, and because the review can no longer be found even on the defendant's own Yelp page, I infer that the case was settled.