22 minute read
What To Do About That Negative Online Review
Peter F. Finn, JD
Peter F. Finn, JD, has a practice that includes advising dentists on employment and internetrelated and intellectualproperty issues and representing dentists in malpractice actions. During law school, he interned for the Employee Benefits Security Administration, part of the U.S. Department of Labor, with a focus on employment law matters. Mr. Finn is admitted to all courts, including the California Courts of Appeal. Conflict of Interest Disclosure: None reported.
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ABSTRACT: The posting of a negative online review regarding your dental treatment, office and/or staff is undoubtedly a blow that could have significant repercussions on your practice. Options for responding exist, including a brief and generic professional reply to the review itself, “flagging” the post using Yelp’s internal process or pursuing a defamation claim in court.
The negative online review: We have all seen them on websites such as Yelp[1] when deciding what restaurant to choose for dinner, what store to shop for a particular item, what hotel to stay in on an upcoming vacation or, as is pertinent here, from what health care provider to seek a medical or dental evaluation. Indeed, most dentists have been the subject of at least one negative online review. And those who have been fortunate to escape their reach, likely will in the future. In today’s society, where traditional word-of-mouth recommendations have largely been transplanted by smartphones, social media and the internet, the harm a single negative online review can cause to a dental practice — regardless of size and longevity in the community — can be substantial, especially for those offices lacking a large number of prior reviews or an otherwise robust digital presence. An overall Yelp rating of four stars could readily slide with a single post from a disgruntled patient, regardless of the accuracy of its content, with that one-star negative review standing out like a sore thumb when potential new patients quickly scroll through a practice’s Yelp page.
The natural reaction of most people — dentists included — who see something negative written about them in any forum, especially one as public as the internet, is to want to act immediately by responding to that review to set the record straight, demanding that Yelp (or whatever website the review is on) delete the post and seeking legal recourse against the reviewer. To this end, the questions we often encounter in our legal practice include the following:
• Should I respond to the review and correct the misstatements it contains?
• How can I get that negative review taken down?
• What are my legal rights in going after the reviewer for hurting my reputation?
Presenting an outline of potential options, including legal risks, is the purpose of this article. In brief, as with many things in life, patience, prudence and professionalism are most often the best courses to follow.
Responder Beware — HIPAA and Other Patient Privacy Rights
Surely, a patient who goes online and posts a purported detailed account of their dental treatment at your office on a public forum like Yelp has invited you, the dentist, to correct the record by describing what really occurred, right? The answer, unfortunately, is “no.” And doing so can get you in significant legal trouble.
The federal Health Insurance Portability and Accountability Act (HIPAA) of 1996 includes a privacy rule that establishes national standards to protect individuals’ medical records and other personal health information (PHI). It requires health care providers (and others) to implement appropriate safeguards to protect the privacy of PHI and sets limits and conditions on the uses and disclosures that may be made of such information without patient authorization.[2]
PHI is defined broadly as information, including demographic data, that relates to:
• The individual’s past, present or future physical or mental health or condition.
• The provision of health care to the individual.
• The past, present or future payment for the provision of health care to the individual and that identifies the individual or for which there is a reasonable basis to believe it can be used to identify the individual. PHI includes many common identifiers (e.g., name, address, birth date, Social Security number).[3]
The Privacy Rule permits a health care provider to use and disclose PHI, without the patient’s express written authorization, in a limited number of situations. For example, no written authorization is required for a dentist to discuss PHI with the patient or with other health care providers treating the patient.[4] However, in those limited situations in which an express written authorization from the patient is not required, do not include disclosing PHI about a patient on a public forum like Yelp. Accordingly, absent the patient’s express written authorization, a dentist may not use or disclose a patient’s PHI in an internet forum.[5]
Moreover, the federal government has made it clear that a patient does not waive their HIPAA rights by posting their own PHI in an online review on a forum like Yelp. The Office of Civil Rights (OCR), which is part of the U.S. Department of Health and Human Services (HHS), is responsible for enforcing HIPAA and investigating alleged violations. Recently, a Dallas dental office was required to pay $10,000 to the OCR and adopt a corrective action plan after it was found by the OCR to have impermissibly disclosed PHI of multiple patients in response to patient reviews on its Yelp page. Roger Severino, the OCR’s director, explained in a news release, “Social media is not the place for providers to discuss a patient’s care. Doctors and dentists must think carefully about patient privacy before responding to online reviews.”[6]
In addition to HIPAA, dentists must also be cognizant of California’s own patient privacy laws. The California Confidentiality of Medical Information Act (CMIA) includes similar restrictions on the disclosure of a patient’s medical information without first obtaining a written authorization from the patient or the patient’s representative.[7] A patient whose medical information has been disclosed by a health care provider in violation of the CMIA may bring legal action and recover compensatory damages, punitive damages (up to $3,000), attorney’s fees (up to $1,000) and the costs of litigation.[8] Furthermore, such a violation is punishable as a misdemeanor and subject to an administrative fine or civil penalty of up to $25,000 per violation, depending on whether the unlawful disclosure was made negligently or knowingly and intentionally, or up to $250,000 per violation if done for financial gain.[9]
The forgoing discussion mandates that any response you might make (one is not required) to any online review — negative or positive — must be generic, not indicate that the person who posted the review is or was a patient, exclude any identifying information of the reviewer and never include any PHI. The simplest response — if any — is often the best. Be respectful and professional, acknowledge the reviewer’s concerns and that you have read the review carefully, explain that privacy laws (such as HIPAA) prevent you from disclosing information in response and invite the reviewer to contact you offline to discuss further (again, without explicitly or implicitly identifying the reviewer as a current or former patient).
A sample generic response to a negative online review (or any review) could read:
Thank you for your submitting your review. As with all reviews, we have read your post carefully and take the issues you have raised seriously. However, due to federal and state privacy laws, we cannot comment further here on Yelp. Our office welcomes an opportunity to discuss any concerns privately. You may contact us at [phone number and/or email address].
Such a response may open the line of positive and productive communication with the reviewer (patient) as well as show other potential patients who visit your Yelp site that you are both conscientious of concerns raised by the reviewer and cognizant of protecting privacy. In this sense, the negativity of the contents of the review may be subsumed (at least to a degree) by the positivity of your response.
Let’s Just Get the Review Removed: Not as Easy as It Sounds
There is a mechanism to request websites like Yelp to remove reviews. While routinely unsuccessful, simply reporting a review to Yelp has little legal risk — particularly in comparison to a public response to a post — and can be completed quickly and easily.
When you come across a negative review on your Yelp page, you can “flag” the post by clicking the “Report Review” icon located within the “More Options” tab. This triggers an evaluation of the review by one of Yelp’s “moderators” who then determines whether the review will remain or be removed.[10] If no action is taken by the moderator, you then have the option of requesting a “second review” by contacting Yelp’s support team.[11] Unlike the initial “flagging” of the review, which does not offer you an opportunity to describe why the review should be removed, this second review enables you to complete a “comments” section.[12] Of course, any “comments” you provide must be HIPAA and CMIA compliant.
Unfortunately, that is where Yelp’s review process ends. For better or for worse, Yelp is unlikely to take any action unless the review violates one of its content guidelines[13] or there is a court order stating that the review is defamatory.[14] As Yelp makes clear, “removing photos, reviews or other user content is not something we take lightly — we generally allow users to stand behind what they write.”[15] And, assuming you disagree with Yelp’s decision, “going after Yelp” is not the answer. The U.S. Communications Decency Act of 1996 (Communications Decency Act) immunizes websites from liability for hosting (i.e., allowing to be posted and published) comments written by another person, such as a review on Yelp.16 One California dentist found this out the hard (financial) way.
Yvonne Wong, DDS, a pediatric dentist, filed a lawsuit against the parents of a patient who posted a review on Yelp that criticized the dental care Dr. Wong had provided to their son and Yelp for allowing the review to be posted on its website.[17] Dr. Wong alleged that the review contained false assertions (“slanderous complaints”), including that she had “not warned [the parents] about the mercury [contained in a silver amalgam filling], had misdiagnosed their son’s case and had improperly used a general anesthetic ‘that is outside her scope of practice’ and for which she could ‘lose her license.’”[18] Dr. Wong brought claims for libel per se (a form of defamation) and intentional and negligent infliction of emotional distress. However, Dr. Wong quickly dismissed Yelp from the action in the face of an anti-strategic lawsuit against public participation (SLAPP) motion to strike the lawsuit,[19] which was brought on the grounds that Yelp was immunized from liability by the Communications Decency Act. Yelp then went after Dr. Wong for its attorney’s fees and costs, ultimately winning a judgment against Dr. Wong.[20]
The California Supreme Court has recently extended the protections afforded by the Communications Decency Act by holding that websites such as Yelp are not required to remove from their websites certain reviews that have already been judicially determined to be defamatory.[21] As a result, the prospects of successfully getting Yelp to remove a post on its own have likely diminished substantially.
The moral of the story is there is no legal recourse against websites like Yelp that post reviews, regardless of how defamatory those reviews may be. However, you can and should utilize Yelp’s internal mechanism, described above, to report negative reviews. Just understand that if and when Yelp decides it will not remove the review following the completion of its evaluation (and second look), your options against Yelp are spent.
What About Suing the Reviewer? Defamation, Anti-SLAPP Pitfall
If a generic response to the negative post is unsatisfactory and pursuing Yelp is a nonstarter, what about a legal claim directly against the author of the review (assuming the identity of the reviewer is known)?
The most obvious legal avenue that a dentist could pursue against an online reviewer is a claim for defamation.[22] Defamation comes in two forms: libel and slander.[23] The basic difference between libel and slander is that the former is a written statement, while the latter is an oral statement.[24] Because an online review is a written publication, libel is the form of defamation potentially at issue.
Libel is defined by California law as “a false and unprivileged publication by writing, printing, picture, effigy or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule or obloquy or which causes him to be shunned or avoided or which has a tendency to injure him in his occupation.”[25] Stated plainly, a false statement on an online review that attacks a dentist’s reputation, which is made negligently, knowingly or recklessly,[26] is subject to a legal attack by the dentist via a claim for libel.
Importantly, because of freedom of speech principles enshrined by the First Amendment, the law distinguishes between statements of fact (which are provably false) and statements of opinion (which are not provably false).[27] The United States Supreme Court held long ago: “Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.”[28] Thus, “courts apply the Constitution by carefully distinguishing between statements of opinion and fact, treating the one [statements of opinion] as constitutionally protected and imposing on the other [statements of fact] civil liability for its abuse.”[29] Indeed, “‘rhetorical hyperbole,’ ‘vigorous epithet[s],’ ‘lusty and imaginative expression[s] contempt’ and language used ‘in a loose, figurative sense’” are not actionable statements of fact.[30] For example, calling an employee a “local loser,” an attorney a “whore’s son” and “a joke” or a teacher the “worst teacher” and a “babbler,” have all been deemed to be nonactionable opinion. [31] On the other hand, posting on a website that a doctor is only a student who has no training in a particular area of medicine are provably false statements of fact and therefore actionable when untrue.[32] So too are blog posts falsely accusing a family court counselor of corruption, fraud, lying under oath, prescribing medicine illegally and extorting money for services not performed.[33] As the foregoing analysis demonstrates, there are certain trigger areas to be “on the lookout for” when determining whether a review is libelous:
• Does the review claim you lack training or experience?
• Does the review accuse you of engaging in criminal conduct?
• Does the review assert you committed fraud?
• Does the review state your treatment was substandard (negligent)?
Undertaking this analysis is critical before rushing to the courtroom because, as Dr. Wong learned, bringing an unmeritorious libel claim against a reviewer can result in you being required to pay the reviewer’s often substantial attorney’s fees and costs. Specifically, as happened with Dr. Wong, the reviewer can respond to the lawsuit by filing an anti-SLAPP motion to strike under California Code of Civil Procedure § 425.16, which, if successful (in part or in full), automatically entitles the reviewer to an award of attorney’s fees and costs.[34]
The California Legislature developed the anti-SLAPP statutory scheme due to “a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.”[35] An antiSLAPP motion attacks a claim, such as one for libel, by asserting that (1) the challenged statement arises from constitutionally protected activity (i.e., free speech in connection with a public issue), and (2) the plaintiff (you, the dentist) does not have a probability of prevailing on the cause of action (i.e., the challenged statement was not defamatory).[36] The pertinent language of the statute reads:
A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California constitutions in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability the plaintiff will prevail on the claim.[37]
As it relates to an internet forum such as Yelp, an “act in furtherance of a person’s right of petition or free speech” under the United States or California constitutions is defined to include (1) any statement made in a public forum in connection with an issue of public interest or (2) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.[38]
Significantly, the anti-SLAPP statute is construed broadly.[39] “[The] critical consideration is whether the cause of action is based on the defendant’s [the reviewer’s] protected free speech or petitioning activity.”[40] Similarly, a “public issue” or an “issue of public interest” includes “not only governmental matters, but also private conduct that impacts a broad segment of society and/or that affects a community in a manner similar to that of a governmental entity.”[41] This definition extends to issues that are not necessarily of interest to the entire public, but rather to a limited, definable portion of the public, so long as the protected activity occurs “in the context of an ongoing controversy, dispute or discussion.”[42]
A cursory review of the anti-SLAPP statute demonstrates its inherent application to the defamation context. As such, if you decide to file a legal claim for libel against the author of a negative online review, you can expect the reviewer to counterattack by way of an anti-SLAPP motion to strike. Given the broad construction of the anti-SLAPP statute and public policy considerations that favor freedom of speech and the exchange of ideas, it is imperative that caution be employed in analyzing whether the contents of the review actually include false statements of fact or simply a disgruntled patient’s opinions of the dental services provided.
Practical Steps To Minimize the Impact of the Negative Review Not Removed
In many cases, nothing you may try to do will be successful in getting the negative review physically removed from Yelp. However, even when the negative review remains posted, there are practical steps you can take to minimize its prominence on your Yelp page and, in turn, the potential impact it has on your practice.
Perhaps the most obvious solution is to grow your positive reviews. Encourage patients who have good experiences in your office to post on Yelp.[43] The more positive reviews you cultivate, the less focus visitors to your Yelp page will pay to the outlier bad review. Not only will positive reviews diminish the substantive statements contained in a negative review, but they will visually improve the appearance of your Yelp page and may result in the negative review being “pushed down” toward the bottom of your page.
In a similar fashion, be mindful of drawing unwanted attention to the negative review. If you typically do not respond to positive reviews, a reply to a negative review will stand out and simply increase the “space” the negative review takes on your Yelp page. Sometimes ignoring the negative review is the best option, thereby allowing it to become stale and drowned out by the positive reviews that are posted.
As a corollary to both of the above, increase your online and social media presence in other forums. If you do not already have one, create an official website for your practice and market the website so it’s the first “hit” on a Google search of your name.[44] Establish and promote Facebook and Google+ pages with news and updates about your practice that potential patients can access in lieu of viewing the negative Yelp review, which they must now actively look for because it is the fourth or fifth “hit” on a Google search.
Although taking these practical steps may not eliminate a negative Yelp review, they should help greatly decrease any deleterious effects it might otherwise cause.
Conclusion
The posting of a negative online review regarding your dental treatment, office or staff is undoubtedly a blow that could have significant repercussions on your practice. Options for responding certainly exist, including a brief and generic professional reply to the review itself, “flagging” the post using Yelp’s internal process or pursuing a defamation claim in court. The instinct to want to respond immediately, however, must be tempered by careful consideration of patient privacy laws, the protections afforded to websites like Yelp that provide a forum for such reviews to be posted and the perils of attacking what may be deemed speech protected by the Constitution.
Oftentimes, taking practical steps to minimize the prominence of the negative review on your online and social media presence is the most appropriate course to follow.
REFERENCES
1. This article focuses on Yelp reviews, but the legal issues identified herein apply to reviews posted on any internet forum.
2. The Privacy Rule is located at 45 CFR Part 160 and of Part 164(A) and (E). The U.S. Department of Health & Human Services provides a good overview of the legal requirements of each component of HIPAA.www.hhs.gov/ocr/privacy/hipaa/administrative/privacyrule/index.html.
3. 45 CFR Part 160.103.
4. See 45 CFR Part 164.502(a)(1) for a complete list of permitted uses and disclosures of PHI.
5. 45 CFR Part 164.508(a) states that a health care provider must obtain the individual’s written authorization for any use or disclosure of PHI that does not fall under one of the permitted circumstances enumerated by the Privacy Rule (i.e., in 45 CFR Part 164.502(a)(1)).
6. Office of Civil Rights. Dental Practice Pays $10,000 to Settle Social Media Disclosures of Patients’ Protected Health Information; Oct. 2, 2019. www.hhs.gov/about/ news/2019/10/02/dental-practice-pays-10000-settlesocial-media-disclosures-of-patients-phi.html.
7. The CMIA is codified at California Civil Code §§ 56 et seq.
8. California Civil Code § 56.35.
9. California Civil Code § 56.36.
10. www.yelp-support.com/article/How-do-I-report-areview?l=en_US.
11. www.yelp-support.com/article/Can-I-request-asecond-evaluation-of-something-I-reported-that-did-not-getremoved?l=en_US.
12. www.yelp.com/support/contact/flagged_content?src_ article_id=000005274.
13. www.yelp.com/guidelines.
14. www.yelp-support.com/article/Will-Yelp-remove-afalse-or-defamatory-review?l=en_US. See discussion below regarding the U.S. Communications Decency Act of 1996 and the California Supreme Court’s decision in Hassell v. Bird (2018) 5 Cal.5th 522.
15. www.yelp-support.com/article/How-do-I-report-areview?l=en_US.
16. 47 U.S.C. § 230(c)(1) provides: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” In addition, 47 U.S.C. § 230(e)(3) prohibits inconsistent State or local laws: “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”
17. Wong v. Jing (2010) 189 Cal.App.4th 1354.
18. Id. at 1360-1361. The opinion includes the actual contents of the review at issue.
19. California Code of Civil Procedure § 425.16. “SLAPP” stands for “strategic lawsuit against public participation.” AntiSLAPP motions are discussed in more detail, below.
20. Santa Clara County Superior Court Register of Actions, Case No. 2008-1-CV-129971, portal.scscourt. org/search. See also, Enos R, Dentist Must Pay $80K in Yelp Review Case, May 19, 2011, blogs.findlaw.com/ free_enterprise/2011/05/dentist-must-pay-80k-in-yelp-reviewcase.html. It appears that Yelp’s attorney’s fees and costs were about $8,000, while the parents’ portion (they also prevailed) totaled more than $72,000. See Goldman E, Dentist Pays Sizable Penalty for Not Knowing 47 USC 230-Wong v. Jing, May 22, 2011, blog.ericgoldman.org/archives/2011/05/ dentist_pays_fi.htm.
21. Hassell v. Bird (2018) 5 Cal.5th 522.
22. Dr. Wong also pursued claims for negligent and intentional infliction of emotional distress, but those causes of action got nowhere because Dr. Wong was unable to show that the review at issue caused her “serious” or “severe” emotional distress as legally required. Wong, 189 Cal. App.4th at 1376-1378.
23. California Civil Code § 44.
24. California Civil Code §§ 45 and 46.
25. California Civil Code § 45 [italics added].
26. Different standards regarding the author’s mindset when publishing the false statement apply depending on whether (1) the person defamed is a “public” (i.e., someone in the public spotlight, such as a celebrity or politician) or “private” individual and (2) the statement concerns a matter of “public” or “private” concern. An issue of “public” concern is one that is being openly debates and has substantial ramifications for persons beyond those participating in the debate. NizamAldine v. City of Oakland (1996) 47 Cal.App.4th 364, 376-378; Gallagher v. Connell (2004) 123 Cal.App.4th 1260, 1275. The more stringent state of mind standards (knowingly and recklessly) are required for “public” figures and matters of “public” concern, while the lower standard (negligence) is required for “private” figures and matters of “private” concern. For an overview of the specific elements of a defamation (libel or slander) claim, see Judicial Council of California Civil Jury Instructions (“CACI”) Nos. 1700, et al. www.courts.ca.gov/partners/documents/Judicial_Council_ of_California_Civil_Jury_Instructions.pdf.
27. Gregory v. McDonnel Douglas Corp. (1976) 17 Cal.3d 596, 600.
28. Gertz v. Robert Welch Inc. (1974) 418 U.S. 323, 339340.
29. Gregory, 17 Cal.3d at 601.
30. Ferlauto v. Hamsher (1999) 74 Cal.App.4th 1394, 1401.
31. Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal. App.4th 798, 810-812; Ferlauto, 74 Cal.App.4th at 13971398 and 1403-1404; Moyer v. Amador Valley Joint Union High School Dist. (1990) 225 Cal.App.3d 720, 725-726.
32. Del Junco v. Hufnagel (2007) 150 Cal.App.4th 789, 797-799 [“Accusing a physician of being untrained and lacking the proper credentials are not statements of opinion. They are statements of fact.”]
33. Burrill v. Nair (2013) 217 Cal.App.4th 357, 383-386 [disapproved on other grounds in Baral v. Schnitt (2016) 1 Cal.5th 376].
34. California Code of Civil Procedure § 425.16(c)(1).
35. California Code of Civil Procedure § 425.16(a).
36. Navellier v. Sletten (2003) 106 Cal.App.4th 763, 766 and 768; Kyle v. Carmon (1999) 71 Cal.App.4th 901, 907.
37. California Code of Civil Procedure § 425.16(b)(1).
38. California Code of Civil Procedure § 425.16(e)(3)-(4).
39. California Code of Civil Procedure § 425.16(a); Equilon Enterprises v. Consumer Cause Inc. (2002) 29 Cal.4th 53, 60, fn. 3.
40. Navellier v. Sletten (2002) 29 Cal.4th 82, 89.
41. Damon v. Ocean Hills Journalism Club (2000) 85 Cal. App.4th 468, 479.
42. Du Charme v. International Broth. of Elec. Workers, Local 45 (2003) 110 Cal.App.4th 107, 118-119.
43. Do not create fake positive reviews by having staff post on your behalf. Fake reviews can often be spotted by their content, the user’s information and the date they are written. Publishing fake reviews also raises a host of legal issues, including illegal advertising, unprofessional conduct and unfair business practices.
44. A website is a form of advertisement, so be mindful of its contents to ensure it complies with limitations imposed by the California Dental Practice Act and related laws. See California Business & Professions Code §§ 651 and 1680(h), (i), (k), and (l); 16 C.C.R. § 1050, et seq.
THE AUTHOR, Peter F. Finn, JD, can be reached at PFinn@professionals-law.com.
