I have received many inquiries over the last five years from owners of companies that had a false, defamatory or malicious review posted on Yelp. They usually assume the post can be removed to control or lessen their company’s defamation. What most people don’t know – and the factor that continues to cause quite a bit of stress – is that there is currently no instantaneous solution to these harmful and vexing public postings when they occur. This has been a frequent topic in the news and on internet blogs lately, and will remain so until the law finds a way to effectively address it.
The good news is that depending on the post, California courts will allow the person or company being targeted to challenge the false accusation that has been posted. For example, physicians can be fair game for disgruntled patients or by competitors who may be seeking to steal business from another doctor. Depending on whether the argument is factual, an argument can be made for defamation. If, however, the statement is someone’s opinion, it would not be considered defamatory and therefore, in the opinion of the court, the challenge would not succeed.
If a physician loses a patient and the post claims the death was “murder,” the person posting this could find himself or herself in serious trouble. I believe when the word “murder” is used, the connotation is that criminal conduct has occurred, and that could be defamatory. But if the post claims there was a killing by a doctor, that post could be viewed as only a statement of opinion and opinion is not something the court will punish with a damages award.
In Krinsky v. Doe 6 (2008) 159 Cal.App.4th 1154, the court found the comment that someone was a crook was not defamatory because in context, it was a statement that would not be read as a fact but, rather, as hyperbole and venting. On the other hand, in Sanders v. Walsh (2013) 219 Cal.App.4th 855, the statements regarding perjury, fraud and accepting bribes were taken as statements of fact and constituted actionable defamation.
Currently, challenges to Yelp and other online forums are neither pro-plaintiff nor pro-victim.
Most of us cannot afford attorneys to fight lies on Yelp. Another concern is whether taking action against the person who posted the negative comment will draw more attention to the post than it would have if one had ignored it.
In this case, one possible response would be to recognize that a patient’s death following surgery is always regrettable, but that no one has concluded the death was caused by a particular physician. In other words, if you are going to post a response, do so with compassion while also refraining from acknowledging the damaging accusation.
About Laurie J. Butler
As the principal of The Butler Law Firm, Laurie Butler specializes in business and real estate litigation, trust/probate litigation, and general business advice for LLCs, solo business owners, corporations, and partnerships. Ms. Butler also provides legal expertise for homeowner disputes and construction disputes and drafts contracts, leases and general business documents. Furthermore, Ms. Butler has served as FINRA arbitrator and represents clients in actions against securities brokers.