Therefore, it is safe to post a negative review about a merchant, restaurant, doctor, etc. on the Internet, or risk being sued for defamation?
It’s not an easy question to answer, but the way I see it, you have to be very careful with what you say and how you say it. A case decided by the Colorado Court of Appeals in December, Creekside Endodontics v. Sullivan, shed some light on this topic.
The facts of the case go like this. Kathryn Sullivan went to see Andrew Stubbs, DDS, at Creekside Endodontics for dental work. She was not happy with the work Stubbs was doing and the way in which, after treatment, he dealt with her concerns. (Among other things, Stubbs dismissed her as a patient because, he said, she had become “adversarial.”)
Sullivan sought second opinions from several sources with modest credentials and concluded, rightly or wrongly, that Stubbs had botched the duct procedures he performed by “overfilling.” Sullivan then posted unfavorable reviews of Stubbs on Yelp and Google, including: “He refuses to take responsibility for the damage he has caused.” “ignored my pain;” “Work is ‘sub par’.
Stubbs and Creekside then sued Sullivan for defamation. Sullivan responded with a special motion to dismiss under Colorado’s relatively new anti-SLAPP statute. (SLAPP stands for “strategic suit against public participation.”) Under this statute, a court takes an early look at a case and will dismiss the case unless the plaintiff can show the court that there is a “reasonable likelihood” that the claim meritorious and will prevail. The trial court in Sullivan’s case, Saguache County District Court, denied his motion to dismiss and he appealed.
The Court of Appeals ruled that the trial court should have granted Sullivan’s motion to dismiss and, further, under the SLAPP statute, should have awarded him attorneys’ fees and costs. The Court of Appeal’s decision was motivated by the fact that the parties in the case appeared to have agreed that Sullivan’s online postings were a matter of “public concern.”
Under defamation law, this meant that to prevail, plaintiffs would have to show by clear and convincing evidence that Sullivan’s posts were made with “actual malice.” “Actual malice” is a technical term in defamation law and requires proof that a statement was made with “actual knowledge” that it was false or “reckless disregard” of whether the statement was true. Here, the Court of Appeals concluded that Sullivan had no actual knowledge of the falsehood, and because he had done at least some research before publishing his posts, he had not acted with reckless disregard for the truth.
Also, some of what he said was “opinion,” and statements of opinion, as opposed to statements of fact, cannot form the basis of a defamation claim.
In short, the Court of Appeals concluded that Stubbs and Creekside did not have a reasonable likelihood of prevailing and their complaint should have been dismissed.
However, as Court of Appeals Judge David Yun pointed out forcefully in a concurring opinion, a complaint against a dentist by an unhappy patient is not really a matter of “public concern.” It is a matter of private interest, and the standard for a successful defamation claim in this circumstance is not “actual malice,” but negligence. If this lesser standard applied in this case, plaintiffs might have been able to show a reasonable likelihood of success and, under the SLAPP statute, their complaint should not have been dismissed. But, as Yun pointed out, the Court of Appeals was stuck with the parties’ apparent agreement that the case was a matter of public interest and therefore should apply the ‘actual malice’ standard.
Ultimately, Kathryn Sullivan was lucky in this case, and the next person sued over a negative online review will have a tougher fight trying to get the case dismissed under the SLAPP statute. That’s because the statements in question will likely be treated as a matter of private interest rather than public concern, and the standard at play under the SLAPP statute will then be negligence—negligence—and unknowing falsity or the reckless disregard for the truth.
Jim Flynn is a business columnist. He is of counsel to the Colorado Springs firm Flynn & Wright LLC. He can be reached at [email protected]