Another Attempt At Using the Courts To Suppress an Online Review

gandhi_2 writes with this excerpt from the SF Chronicle: "A San Francisco chiropractor has sued a local artist over negative reviews published on Yelp, the popular Web site that rates businesses. Christopher Norberg, 26, of San Francisco posted the first review in November 2007 after visiting Steven Biegel at the Advanced Chiropractic Center on Valencia Street. In the six-paragraph write-up, Norberg criticized Biegel's billing practices and said the chiropractor was being dishonest with insurance companies. ...The Electronic Frontier Foundation, a local nonprofit that supports free speech online, is considering helping with Norberg's defense. Matt Zimmerman, an attorney with the group, said Biegel will get far more negative publicity from filing the lawsuit than from a bad review on Yelp. He said the foundation is seeing more and more cases of people trying to use the courts because they're unhappy with postings on the Internet."

Comments

Chiropractors are quacks anyway

[trolltalk.com]

I'd trust a veterinarian to treat me before I'd trust one of those fraud artists.

Re:Chiropractors are quacks anyway

[WhatAmIDoingHere]

For non-back related things, I'll admit they're frauds. But for someone with back problems, the treatment feels pretty good. I don't know if it's doing anything long term or if it's just a massage paid for by my insurance, but it helps with the pain.

Re:Chiropractors are quacks anyway

[gbulmash]

Quacks or not, the issue isn't with criticism of the chiro's services, but with his billing rates and practices.

But quackery is relevant here, because the doctor should have used a PR person to help him rebut the detractor's claims and used the threat of libel to make Yelp append the rebuttal directly to the criticism so they had to be viewed together. It would have been less costly all around. Better to defuse your detractor as a crackpot/quack than to sue him and give him legitimacy.

Is the doctor within his rights? If the claims made by Norberg actually are false, then he is. Was this the best way to handle things? Nope.

Re:Chiropractors are quacks anyway

[fahrbot-bot]

I'm not a doctor, but if you have chronic back pain you might want to see a Physiatrist instead:

Physiatrists, or rehabilitation physicians, are medical doctors who are nerve, muscle, and bone experts who treat injuries or illnesses that affect how you move. Rehabilitation physicians have completed training in the medical specialty physical medicine and rehabilitation (PM&R).

They are medical doctors, so your insurance should cover them, and have chiropractor training so they can do more than either alone. The other difference seems to be the approach.

Case in point. My wife injured her neck many years ago. A chiropractor recommended treatment and a "maintenance" plan to keep things "aligned". She declined both. The physiatrist asked for X-rays and medical history a week in advance of the appointment, then examined her for an hour, testing and explaining what was wrong, and then fixed her with one manipulation and an injection. No repeat visits required, unless "you injure yourself again". My wife went back once two years later after she slipped rock climbing.

If you're in the Virginia Beach, VA area I recommend Dr. Lisa Barr.

Disclaimer: Your mileage may vary.

EFF is nice to have around

[Anonymous Coward]

This happens all the time.

I personally got a call about a blog post I wrote about a shady SEO company. For those of you who don't know much about search engine optimization, it is very easy to see if some website is horrible from that perspective. The said company's own website wasn't even properly indexed, the *very* basic things such as having proper titles on each page were missing, etc... Well, I posted a short, intended to be humorous entry about it in my blog.

A few days later I got a call from them. They told me to remove the entry, told me they had been talking to their lawyers (and I instantly recognized the company's name as it is rather large, international law firm), named a few labels for crimes, including but not limited to defamation... I tried to ask if they could cite what specific thing I said in my blog about their site was not correct but they avoided answering to that.

Well, to be honest I got a bit scared. Thankfully, I just then happened to be on the year's largest computer festival in my country and there was a stand from EFF one floor below me. I visited there, conversed a while, got somewhat less scared and added an edit to my blog that I have been contacted by said firm in this manner but didn't remove anything. Got some nice amounts of link juice from the blogosphere but the company never returned to the subject.

As unrelated note, I soon found out how the company had even found out about my (rather small reader base, even if largely read in the local SEO scene) blog. When I googled with the company's name, my blog entry was second result even though there had been no optimizing at all for it...

Re:EFF is nice to have around

[PhreakOfTime]

Its amazing how often this kind of thing happens, and I think the only reasonable response to this kind of behavior is to PUBLISH it.

I did some contract work for a company once, and during the course of the work, found out that there were quite a few court cases against them in my local county. I decided to stop any further business dealings with them.

After not being paid for services rendered, I posted a link to our local county courthouse showing all the court cases they were currently involved in.

About 9 months later, I got a letter in the mail from an attorney, claiming all sorts of things like you described; libel, copyright, and CRIMINAL violations. The letter however was addressed to someone else in the phonebook of my small town who had the same last name as myself. I only received it after it had been sent back to the post office numerous times for an incorrect address. It should be pointed out here, that at no point was I trying to hide my identity or make it confusing as to exactly who was posting this court information. At this point it became obvious the level of professionalism I was dealing with that wouldnt even do the most basic fact checking on their accusations. The wording of this letter seemingly bordered on blackmail. To make a long story short, I posted the threatening letter for everyone to read, and havent heard another peep since.

The company who did this was the small real estate company, Caton Commercial. You can also read the Cease and Desist Letter they sent.

It honestly amazes me that a business would send such a spurious letter to someone who is already publishing the questionable ethical practices of said company. And yes, now when you search their company name, Caton Commercial in a search engine, the second result is the courthouse website listing their cases, and the third is a copy of that letter. I cant imagine that was the intended result they were after, when they first had the idea to intimidate someone for publishing already public court information.

Long history

[binkless]

Chiropractors have had many detractors over the years and have a long history of using political manipulation and legal intimidation in response. They pursue a variety of goals including suppression of criticism of their questionable practices and mandating insurance coverage for chiropractic "care." They have generally been successful. That they try to suppress online criticism is a predictable continuation of longstanding behavior

Re:Long history

[SirLurksAlot]

I'm not going to argue with you one way or the other regarding chiropractors and their methods as I don't have any experience or knowledge of them specifically. I will say however that I think you're missing the point. The issue at hand, alleged libel in a public forum, can be applied to just about any business. It just happens to be a chiropractor in this case.

Re:Long history

[DancesWithBlowTorch]

In other words: If someone actually commits libel against you in an internet forum, you are screwed:

If you sue them, you create a lot of headlines (the streisand effect), causing much more damage to your reputation. If you win the case, nobody will care (the media is not interested in some random dude being wrong in a forum). If you lose, it's even worse.

So what else can you do, really? Must be something that doesn't cause negative publicity. You might try adding a positive review to the forum under a pseudonym. But if anyone finds out about this, you have caused even more harm to your reputation.

The takeaway message seems to be: Don't trust anyone on the internet, for there is no penalty for lying on there.

Re:Long history

[aurispector]

Yup. Accusing someone of illegal activity (in this case insurance fraud) is serious business. If the guy is an asshole he deserves a poor reputation but that doesn't include being called a criminal. This isn't a free speech issue at all. Regardless of your opinion of chiropractors, free speech does not mean you can call someone a criminal unless you can prove it.

Re:Long history

[gbulmash]

There's a difference between SLAPP (Strategic Lawsuit Against Public Participation) and suing someone who has posted claims about you or your business that are patently false. And there's a point at which "opinion" becomes libel. The first thing that doctor's lawyer will ask:

Lawyer: So it was your "opinion" that my client's billing practices were criminal?
Defendant: Yes.
Lawyer: And which particular statute do you believe he was violating?
Defendant: Statute?
Lawyer: Well, if you were going to state an opinion that would be so harmful to someone's reputation, you'd have based it on some sort of research that led you to conclude that his behavior was actually criminal, right? You wouldn't just "pull it out of your ass" so to speak?
Defendant: Well...
Lawyer: Let me rephrase that. Let's say you put some faux fur in an artwork. If one of your clients falsely claimed that artwork contained the fur of baby harp seals that you had clubbed yourself, and that caused other clients to cancel future projects, would you write that off to mere "opinion"?
Defendant: No.
Lawyer: Why not?
Defendant: Because it's a lie.
Lawyer: Why can't it just be his opinion that it's harp seal fur from baby seals whose heads you brutally bashed in?
Defendant: Because it's not!
Lawyer: No further questions, your honor.

Re:Long history

[russotto]

This isn't a free speech issue at all.

For any free speech issue on the Internet, there's someone to claim that it isn't one for some lame excuse or another.

free speech does not mean you can call someone a criminal unless you can prove it.

So if someone commits a wrong against me, and I can't muster up enough objective evidence to prove it, I must remain silent about it upon penalty of law? Some free speech.

Here are the statements that are claimed to be libelous:

a) "A friend told be to stop going, cause of Dr. Biegel billed his insurance company funny awhile before."

One should be prevented by law from posting such a vague assertion online?

b) "So I saw the guy for 2 visits, expected a bill for about 125 bucks... So ends up, Biegel billed me for over $500. I called to pay, and he couldn't give me a straight answer as to why the jump in price, we got into an argument..."

Assuming Dr. Biegel did in fact bill the defendant over $500, there's no false statement of fact here. Nor anything that would be defamatory per se even if it were false. "He couldn't give me a straight answer" is a matter of perception.

c) "He called me back to cover his ass, and had reasons as to why he could bill for the extra amount, then tells me he would still write it off because he wanted to keep his word from the previous conversation. One reason he gave me, was that he runs a business and would stick it to insurance companies (even though that drives my premiums up, and makes me wonder who else he sticks it to).

This is an example of an unprovable statement -- an unrecorded phone conversation. Should the defendant be forbidden by law from repeating Dr. Biegel's (alleged) words because he can't prove that Dr. Biegel said them?

d) "The next day I received a voicemail from the receptionist, she told me that she talked to my insurance company and found out that my case settled, and even though it was for an amount less than expected, they felt I owed them $125

It's not clear why Dr. Biegel even thinks this statement is libelous.

e) [I was a bit put off by the fact that] "he wasn't keeping his word anymore".

A bit vague to be the basis of a libel claim.

f) [I don't think good business means charging people whatever you feel hoping they'll pay without a fuss.] "Especially considering that I found a much better, honest, chiropractor."

The first part isn't libelous at all, it's a matter of opinion and the practice it implies the plaintiff engages in isn't illegal. The second part implies the plaintiff _isn't_ honest, which is clearly the defendant's opinion based on the other things that happened.

If this review is held to be libelous, then just about any write-up about a similar dispute can be held to be libelous. Proof isn't always going to be available, and to require that the complaining part have such proof before even making a complaint is definitely a "chilling effect".

Re:Long history

[xigxag]

In this case the lion's share of the "bad publicity" arises because he is bringing this case to court. Otherwise would any of us have even heard of this chiropractor?

In any case, the GP is not asserting that free speech is unfettered. What he seems to be saying is that suppressing freedom of speech should only be done in narrow circumstances. Bad publicity of itself is certainly not a cause to suppress free speech. If it were, then you could never read a bad book or movie review either, papers would be forbidden from publishing the names of alleged criminals, and so on.

And as a matter of law, the burden of proof is on the other side to begin with. It's not for the defendant to dig up proof that he was telling the truth. It's for the plaintiff to prove the defendant was making false statements.

Re:Long history

[Eil]

So what else can you do, really? Must be something that doesn't cause negative publicity. You might try adding a positive review to the forum under a pseudonym. But if anyone finds out about this, you have caused even more harm to your reputation.

You rebuke the accusations with evidence.

I work for a mid-size web hosting company and due to the sheer volume of customers that we have, sometimes we get a couple of unhappy ones that end up making a public forum or blog post badmouthing the company. Our marketing team keeps an eye out for these and tries to work with the disgruntled customer to get the situation resolved and (ideally) make them a happy customer again. If you can't make them happy, then at least you've still come out ahead for trying.

In one case, we had a network outage in the middle of the night that caused about a third of our datacenter to lose outside connectivity for a little over three hours. This prompted one guy to post a video on the web of him ranting and raving for about 15 minutes about how bad our company was. He posted links to it on all the web hosting forums and a couple of his blogs so we found out about it pretty quickly. We were able to publicly debunk literally every claim he made. He said that his server was down all day when in reality he was logged into it just two hours before the outage. He said that his server had to be rebooted daily. Our records show that it was rebooted twice since he owned it. He said that the support staff was rude to him. Our notes show that he almost always demanded to speak to a supervisor whenever he called in. It went on and on. In his own blog, we offered to fix whatever he thought was wrong and give him a year of free hosting (worth several thousand dollars) if he would take the video down. He refused. By the time we threw in the towel, 90% of the comments on his own blog were of other people calling him an idiot and we gained several new customers that day who said they were impressed by our professionalism in that post.

The point here is that except in very rare circumstances, it's possible to rebuke false statements publicly and effectively if they are actually false. I see the threat of libel and defamation suits being used primarily to silence valid criticism and opinion than to "clear the name" of a supposedly aggrieved party. More often than not, the party filing the suit does have something to hide and just want to abuse the court system to harass and intimidate their critics into silence. And unfortunately, it works because libel, slander, and defamation laws trump the First Amendment.

Review or Libel?

[abigsmurf]

There's a big danger in simplifying the issues here. It doesn't seem here that he's suing because it's a bad review, he's suing because he's essentially accusing him of fraud.

If he has proof to back that up, fair enough but to accuse someone of illegal practices like that when you've no proof is libel. It doesn't matter if it's done on a community site or not.

If I was running a business and a disgruntled customer posted a lie about me ("all of his PCs are built in his basement by chained up mexicans!") I would want to have some legal recourse. These kinds of lies can destroy a business, especially those on a site people are likely to visit for information on a business.

Re:this was modded +5 insightful?????

[kno3]

hey thats true!
I think that we should join together and find more people like us so that we can form a group. Then we should try and change the world by getting everybody else who isn't as intelligent as us to come round to our way of thinking!

Re:this was modded +5 insightful?????

[Adambomb]

I wouldn't go to a chiropractor either.

Keep in mind that the procedures and guidelines that began chiropractics is correlational not causal observation. It is done in the sense of "well, people like it and it seems to help".

And in that context, yes chiropractics seems to help many people. The issue is that chiropractics is not Medicine. Chiropractors are not required to be medical doctors (although many medical doctors have become chiropractors as well). It also remains a fairly untested field in terms of long term effects and side effects of spinal alignments.

All these paramedical service professionals are blurring the lines for society it seems. The line dividing chiropractors from physiotherapists from doctors seem to be disappearing in peoples minds. Chiropractics basically boils down to a "it feels good, so we do it" area where the number of negative resulting cases is low enough for few to particularly see a need to stop it. If it helps you, great.

Do not equate it as rigorously tested science or medicine though.

Your brain is showing

[Pinky's Brain]

We are open minded ... if someone could come up with non anecdotal evidence and show the use of clinical trials and other scientific methods in those schools of chiropractic care you are talking about we could simply accept it as plain medicine. Alternative medicine is quackery which sometimes gets things right by accident.

Abandoning the scientific method is abandoning progress ... chiropractic care will never progress, it will remain in the realm of quackery.

Re:this was modded +5 insightful?????

[GizmoToy]

This is basically spot-on. My mother worked for a variety of chiropractors in the area as a receptionist, because she had experience with them. She also suffers from pretty severe asthma. Each one wanted her to come off her meds and rely on adjustments to help with the asthma. They "prohibited" their workers from getting flu shots (which are important for asthma sufferers), insisting they be replaced by adjustments. They routinely recommend parents avoid vaccinating their children in any way.

Eventually she got fed up and took a job at a different type of medical facility. The take-away for me was that the majority of chiropractors appear to have little knowledge of medicine, and should not be trusted for anything beyond glorified massages.

Re:this was modded +5 insightful?????

[AliasMarlowe]

Do not equate it as rigorously tested science or medicine though.

Actually, chiropractics has been tested for a number of complaints. The medical consensus is that it "may be a useful approach in alleviating pain for a very limited set of disorders associated with the back or spine". It is known to be utterly useless for a great many others, such as arthritis, high blood pressure, or ear infections.

Nevertheless, chiropractors routinely claim to be able to treat such conditions. For example, 75% of those approached in one survey claimed to be able to treat arthritis and/or high blood pressure. In another survey, 80% of chiropractors claimed to be able to treat ear infections in children.
http://www.csicop.org/si/2008-01/thyer.html

This is quite disturbing, as it suggests that only 20-25% of chiropractors were aware of the limits of their therapies. The vast majority were willing to misapply chiropractics in potentially harmful ways.