November 10, 2010
Dentist Review on Yelp Gets Partial Anti-SLAPP Protection--Wong v. Jing
By Eric Goldman
Tai Jing posted a negative review of Dr. Yvonne Wong, his son's dentist, to Yelp. The Yelp page with a severely truncated review from "TJ." Dr. Wong sued Jing, his wife Ma and Yelp, alleging defamation, intentional infliction of emotional distress and negligent infliction of emotional distress. Dr. Wong subsequently voluntarily dismissed Yelp from the lawsuit--a natural move given Yelp's immunity under 47 USC 230--although Yelp is apparently back in the lawsuit seeking attorneys' fees under California's anti-SLAPP law. The trial court denied the anti-SLAPP motion, which is on appeal to this court.
The appellate court affirms the denial of the anti-SLAPP motion for the defamation claim against Jing, but reverses it against Ma (who did not appear to write the review) and for the emotional distress claims. Unless there is a further appeal of this ruling, I believe that means that Jing, Ma and Yelp should get their attorneys' fees for defending the emotional distress claims while the defamation claim against Jing will proceed to the next step in trial court. The ruling doesn't mean Dr. Wong will win the defamation claim, although the court's discussion was somewhat encouraging about Dr. Wong's position.
The court says the consumer review of the dentist qualifies for anti-SLAPP protection as an issue of public interest. However, the court rejects the anti-SLAPP motion because Dr. Wong made enough of a showing that Jing's statements may be defamatory.
In discussing the public interest issue, the court implies that the review met the public interest standard only because it discussed the safety implications of using silver amalgam (which contains mercury) as a tooth filling, not just the commercial practices of a dentist. The court says "consumer information that goes beyond a particular interaction between the parties and implicates matters of public concern that can affect many people" can qualify as an issue of public interest; presumably without that extra kicker, it would not (the court later reinforces that "the posting went beyond parochial issues concerning a private dispute about particular dental appointments").
Personally, I think the court took the public interest standard in the wrong direction. The consumer review of a dentist should qualify as an issue of public interest even if the review discusses only the dentist's services, as a poorly performing dentist poses a public safety issue. Nevertheless, other courts might make the same move this court did and find that the consumer review not only addressed the vendor's service but some public policy issue raised by that service. If so, I think courts may reach the same result as if they simply categorically treated consumer reviews of vendors as issues of public interest.
Another interesting move: in dismissing the emotional distress claims predicated on an allegedly false consumer review, the court notes the overall redundancy of the emotional distress and defamation claims. Effectively, the court says, the remedies for Dr. Wong's emotional distress claim completely overlap with the defamation remedies, while the elements of the emotional distress claims require Dr. Wong to prove all of the defamation elements plus more stuff. Thus, as a matter of judicial economy, it makes sense to squelch the emotional distress claims because they added nothing to the lawsuit. I wish more judges would aggressively police duplicative claims brought by defamation plaintiffs; which in many cases add substantially to the litigation costs and thwart a much-needed summary adjudication.
Some implications of this case:
* This case reminds us that posting consumer reviews on Yelp can lead to defamation liability if the reviews contain false statements of fact. As I've said before, I bet my house every time I publish content online.
* In partial refutation of the FUD campaign by Medical Justice, the dentist so far apparently isn't having any problems defending herself against an allegedly defamatory review.
* It's a clear mistake to sue Yelp for reviews posted by its users. See also Reit v. Yelp (also involving a review of a dentist). Here, Dr. Wong may have to write a check to Yelp for that error.
Having said that, the court did not complete the thought about Yelp's anti-SLAPP posture. Even if Dr. Wong adequately stated a case for defamation, Yelp still should have won an anti-SLAPP motion on the defamation claim based on 47 USC 230. The court never connects these dots, so it's unclear if Yelp can get its fees spent on the defamation defense. It should be able to do so.
* Anti-SLAPP protection was an issue in this case only because California has one of the most expansive anti-SLAPP statutes. For more, see this post. This is another reason why we should enact a federal anti-SLAPP law and extend broad anti-SLAPP coverage nationwide.
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