Is It Legal To Use Gag Clauses To Prevent Negative Online Reviews?

gag clauses to prevent negative online reviewsAre contractual “defamation clauses” – a.k.a. “gag clauses”—acceptable? Legally enforceable? Can you sneak them into customer agreements in an attempt to mitigate bad online reviews?

Let’s review.

Using Gag Clauses To Prevent Negative Online Reviews Can Backfire – Badly.

If you asked ten U.S. citizens, “What’s the cornerstone of American law,” nine of them might say, “Free speech!” And it’s a solid answer — which is why contractual consumer gag clauses are short sided. Not only is it an affront to the Constitution, but doing so will probably land you a boatload of viral, negative press.

Not All Gag Clauses Are An Assault On Free Speech…

To be clear: not all gag clauses are a spit in the face of freedom. Many contractual articles, which demand confidentiality, are perfectly fine – if not commonplace.

You may be thinking, “WTF!? How is that possible!? What happened to free speech?”

Fair question. But here’s the crux: confidentiality is the focal point of many agreements. To wit, celebrities regularly make employees sign privacy contracts – a type of “gag clause.” Commonly, startups and businesses require employees to sign non-disclosure agreements to protect corporate secrets.

…But Some Are

So, we’ve established that not all gag clauses are the work of a freedom-hating baddie. But, some contracts do cross a Constitutional line.

When online reviews became de rigueur‎, businesses and professionals started stuffing gag clauses into service contracts. But the practice quickly backfired. Netizens took to the Internet and shout-typed outrage over agreements that prohibited negative online reviews. In short order, lawyers who previously advocated for restrained gag clauses began advising against their use.

When Free Speech Crosses The Legal Line

It’s never OK to ban legitimate free speech, but there are legal limits – like defamation. In laymen’s terms, defamation (libel if written; slander if spoken) is purposefully negligent, harmful public lie telling.

As previously discussed, some people try to use gag clauses to prevent negative online reviews, but it typically backfires – especially if the language is hyper-aggressive.

Moreover, time and again, courts have established that the Constitution (and case law) rarely allows for “prior restraint.” In other words, it’s fine to punish a person, post-facto, for committing an act of slander or libel; however, trying to hush someone – before anything untoward actually happens – is contrary to established legal standards (except in certain circumstances, which usually involve commerce and employment). Or, in other words, it’s not kosher to use gag clauses to prevent negative online reviews — if said reviews are honest.

Some people try to use clauses to prevent negative online reviews, but it typically backfires – especially if the language is hyper-aggressive.

So, Then What Can Business Owners Do About Difficult Clients Who Litter The Web With Negative Reviews?

So, what’s an honest business owner to do when faced with a testy, ranting client? A client that embellishes the truth, but doesn’t, exactly, tell a bold-faced lie?

It stinks, but businesses must contend with client-induced reputational challenges all the time. In reality, the best thing to do is talk to a lawyer. (“Yeah, right – you’re just saying that because your law firm that handles this type of issue,” you protest. Yes, we’re a law firm that helps clients with reputation issues. But think of it this way: would you want a dentist to operate on your spleen? The same logic applies here.)

Gag Clause Case Study

FTC Sues Weight Loss Product Company Over Gag Clause

Recently, the Federal Trade Commission targeted a weight loss supplement company (for this article, we’ll call the company “WLC”) for “unfair and deceptive” marketing. As the nation’s consumer watchdog, the FTC punishes parties that use underhanded methods to market and promote. In fancy FTC language:

“[The FTC goes after businesses that] cause substantial injury to consumers that is not reasonably avoidable by consumers and that is not outweighed by countervailing benefits to consumers or competition.” 

Specifically, the case against “WLC” involves accusations of:

  • False and unsubstantiated claims;
  • Unconstitutional prior restraint;
  • Failure to disclose that some positive reviews were penned by people who were in some way compensated; and
  • Possibly violating HIPPA restrictions by inadvertently disclosing health information to banks and payment processors.

The “Gag Clause” That Had People Seeing Red

The terms of purchase agreement for WL’s weight loss powder included the following phrase:

“Regardless of your personal experience with [WL], you will not disparage [WL] and or any of its employees, products or services.”

In other words: Even if you don’t like the product, you’re barred from saying anything bad about “WLC” – anywhere.

The Defamation Clause Deemed Unacceptable by the FTC

Typically, businesses fall under the FTC’s scope for:

  • Making false claims about a product’s effectiveness.
  • Fabricating “studies” that unfairly sway public perception.
  • Engaging in negative option marketing.
  • Not disclosing “discount for feedback” initiatives (i.e., giving away free samples, money or discounts for writing reviews).
  • Deceptive billing.

FTC Rejects Gag Clause Explanation

Ostensibly, “WLC” opted to include a defamation gag clause in its user contract. But the FTC said, “Nah-ah,” which isn’t surprising since the agency has traditionally kept a close eye on supplement manufacturers and marketers. Moreover, the clause included a damning phrase: “regardless of your personal experience with [WLC],” which probably tipped the legal scale. For it’s one thing to warn against defamation, but another to threaten against free speech.

Free Contracts, Which Can Be Found Online, May Invite An FTC Investigation

In the resultant case, the nation’s consumer watchdog deemed the company’s defamation clause “unfair and deceptive.”

So, how can businesses can guard against “unfair and deceptive” clients? By working with a lawyer who creates practical and protective arrangements that won’t attract the FTC’s watchful eye.

If you use a free online contract, the consequences could be dreadful. Why? Because freebie agreements usually aren’t as comprehensive as they can — and should — be. Sometimes, they include sneaky clauses that work against businesses.

A Lawyer Can Fix It

The Federal Trade Commission estimates that “WLC” made about $20 million over the past five years. But if the company loses this case, that figure could evaporate because the FTC has the authority to fine…heavily. In some instances, the commission can even go after family members’ assets; the agency can even confiscate fur coats, boats, watches and  homes.

To avoid a run in with the Federal Trade Commission over unfair and deceptive marketing practices, work with an Internet marketing lawyer. The attorneys at Kelly Warner have been practicing online marketing law for a long time. Partner Daniel Warner is an astonishingly effective litigator, and Aaron Kelly – the other named partner, enjoys a 10-out-of-10 rating on lawyer review website AVVO.com. Kelly also maintains a preeminent rating with venerated attorney assessment group Martindale-Hubbell.

To learn more about Kelly Warner, click here. To read more about other FTC cases and legal issues that affect today’s marketplace, head here. If you are currently dealing with an FTC investigation or inquiry, get an attorney. Going it alone could result in an avoidable — and unfavorable — business-crushing fine. Besides, hiring a lawyer to help with marketing initiatives may be a lot less costly than you think – and could ultimately save you a small fortune. Don’t wait. Get in touch today.

The Takeaway: In the United States, home to the world’s most free-speech-friendly constitution, using gag clauses to prevent negative online reviews is tantamount to a criminal act in the minds of many people. And adding egregious clauses to consumer contracts isn’t a wise move, as they’re becoming more and more ineffectual in the eyes of judges.

Article Sources

Trujillo, M. (2015, September 28). FTC sues weight-loss company for online ‘gag clause’ Retrieved January 12, 2016, from http://thehill.com/policy/technology/255130-ftc-sues-weight-loss-company-over-online-gag-clause

Board of Directors Defamation: Sued Over Accusations Slung At Meetings?

Board of Directors Defamation
Board of Directors Defamation: Can you sue a fellow BOD member over accusations made at a private meeting?

If you’ve ever sat on a board of directors, you know. You know that BOD meetings can quickly turn into a verbal UFC match — which is why they’re a regular source of slander and libel lawsuits.

But here’s the legal rub: in many situations, board of director showdowns are protected from the go-go-Gadget arm of U.S. defamation law – thanks to a legal concept known as privilege.

Privilege Affects Many Defamation Lawsuits, Especially Ones Born From Board of Directors Meetings

What’s privilege, legally speaking? No, it doesn’t mean “legal advantage, rich folks” (though, many people would disagree). In legal terms, “privilege” describes a protected relationship. Doctors and patients, attorneys and clients, spouses – they all enjoy a certain amount of “privilege,” meaning that particular aspects of their conversations, between each other, are not subject to defamation law. Same goes for certain board of directors meetings.

Why are some BOD gatherings legally protected, verbal free-for-alls, operating outside of slander and libel laws? Because organizations, businesses and groups need to be able to discuss suspicions, rumors and other unpleasantries. Doing so is part of how healthy establishments maintain good public reputations and keep their respective management engines chugging along.

Which is why a recently filed board of directors defamation lawsuit out of Idaho may prove fruitless.

The Incident: Accusations Fly at a BOD Meeting

Here’s what happened:

  • A sport’s club, with volunteer participants, had two heated board of directors’ meetings.
  • At the first, one of the members accused another member of filching funds.
  • At the second, the accused demanded an apology – which never came.
  • Ultimately, records proved the accusation inaccurate.
  • The accused party filed a defamation lawsuit against its accuser.

What Plaintiffs Must Prove To Win A Defamation Lawsuit

To win a slander or libel lawsuit, plaintiffs typically have to prove a lot more than a simple untruth. At the very least, claimants must convince a judge or jury that the defendant:

  • Made a false statement of fact about the plaintiff;
  • Acted negligently, recklessly or with actual malice; and
  • Caused harm – material or reputational – via the contested statement.

Applying the Standards to this Board of Directors Defamation Case

If reports are accurate – and there aren’t any unknown extenuating circumstances – the plaintiff may win this board of directors’ defamation case. Publicly and falsely calling someone a thief is inherently harmful to a reputation. It’s considered “defamation per se” in some jurisdictions. And in per se cases, the plaintiff usually doesn’t have to prove harm.

BUT! Privilege May Save the BOD

As stated, legally speaking, privileged statements are “protected” statements. Speech that falls under the “privilege umbrella” may not be defamatory – even if inaccurate. Absolutely privileged statements are sometimes 100% immune from legal action. When language is labeled as “qualified privilege,” to win, the plaintiff must meet a higher standard of proof.

In this case, the board of directors’ meeting may be considered a “privileged meeting.” If it is, the plaintiff may not be able to win any damages.

A Common Misconception about Defamation

Over the past decade, the word “slander” has assumed a colloquial meaning, in addition to the legal one. It’s common for people to say a negative comment is “slanderous.” But as discussed above, actual slander involves a whole lot more than a negative opinion.

Contact a Defamation Attorney

Free speech is a cornerstone of American life. However, you can’t maliciously lie about another party. Doing so is defamatory, and legal remedies are available to people on the receiving end.

Kelly / Warner works with individuals and businesses that have been illegally disparaged. Our attorneys handle all manners of slander and libel lawsuits – both online and off, personal and business-related.

We’re a full-service, boutique practice that offers better-than-big-firm results for a fraction of the price. Not to brag, but our success record is something of which we’re exceptionally proud.

More encouraging, rectifying a board of directors’ defamation issue doesn’t always involve a lawsuit.

Get in touch today to explore your legal options.

Google Defamation: Will The Search Giant Survive Down Under?

Google defamation case
Google Defamation: Will Google have to shutter its doors down under after an unfavorable online defamation ruling against the search engine?

Has anybody in the United States successfully sued Google for defamation? Attempts have been waged, but the plaintiffs’ crusades usually fail. Sure, folks win defamation lawsuits against authors of defamatory statements. But against Google? Nah. Google almost always walks away unscathed – fresh as a Mentos factory.

Why?

Stateside statutes make it very difficult for claimants to win “Google defamation” lawsuits. After all, Big G doesn’t create 95% of the content it displays; it simply acts as an aggregator of third-party information.

But not every country has laws that protect Internet service providers and user-content platforms. Recently, an Australian court ruled against the mega-search-engine in what has quickly become a high-profile online libel lawsuit, which, theoretically, has the power to decimate Google down under.

Doctor Defamation Lawsuits: The Usual Story

It happens a lot. A medical professional treats a petulant “Mr. Patient.” Things don’t go well. Mr. Patient isn’t thrilled with the doctor’s work or bedside manner or billing practices or bad breath. So, good ole’ Patient takes to the Internet and shout-types his woes to the world.

Sometimes, in online patient v. doctor brawls, the digital diatribes are legitimate complaints; sometimes they’re exaggerations, and sometimes they’re bold-faced lies. No matter the category, online reviews have the power to demolish practices and ruin careers. Which is why many doctors move forward with Internet defamation lawsuits in the face of hyperbolic, inaccurate and damaging Internet rants.

And believe it or not, the case jurisdiction has a huge effect on the likelihood if its success.

Defamation Laws Vary, Greatly, By Nation

Nearly every country in the world has defamation laws, but the terms of those laws are as varied as humanity itself. For example, in countries that still recognize a monarchy (not all), the crime of lese majeste (in today’s parlance, trash talking royals) can get you thrown in the clink – for years. In some non-secular countries, profanity and blasphemy can land you six feet under.

And believe it or not, British Commonwealth countries and the United States – though similar in many ways – are on arguably opposite ends of the defamation scale. In short, countries like Great Britain, Australia and Canada are primarily plaintiff-friendly when it comes to slander and libel laws, whereas the U.S. is decidedly defendant-friendly.

Australian Doctor Disparaged on U.S.-Based Ripoff Report Goes After Google for Defamation

The contracts between U.S. and Australian defamation laws recently took center stage in a shocking ruling by the South Australian Supreme Court – and the decision may have Google a shaking in its bytes.

Here’s the story:

A peeved Australian medical patient blasted a doctor on infamous consumer review website RipoffReport.com. Clearly, the doctor wasn’t pleased – so she initiated legal action. Interestingly, the doctor opted to include Google as a defendant. Interesting because it’s almost unheard of to win an indexing defamation lawsuit against the Mighty G (especially in the United States). Nevertheless, our intrepid doctor went for it. Why?

Well, when the disparaging and damaging content appeared on RipoffReport.com, the doctor alerted Google of its defamatory nature. But Google did nothing. The hyperlink remained front and center in the index. She felt the search engine ought to be held liable, too.

Doctor Wins Google Defamation Lawsuit

And guess what? She WON! Against Google! The Teflon Google! A court held the search engine accountable for content published on Ripoffreport.com!

“How!?” You might ask.

The court reasoned:

“If a search of Dr Duffy’s name had merely returned the URL of the first Ripoff Report webpage without functioning as a hyperlink and without accompanying text, it could not be said that Google was a publisher of the content of that material. To access the first Ripoff Report webpage, the user would need to enter the URL into the address box of the internet browser.”

A U.S. court would not have returned this verdict. No way, no how. Because there’s a law in the United States – commonly known as Section 230 of the Communications Decency Act – which effectively frees internet service providers – and many social media platforms – from defamation liability over third-party content. Or, to put it more simply: many websites are not held legally accountable for user content and posts.

Read more about Section 230 of the CDA

Google Defamation Rules: What Happens If A Country Doesn’t Protect ISPs From Third-Party Liability?

But what happens when an international online behemoth, like Google, is slapped by a ‘foreign’ court? Does it affect the rest of the world? After all, the Internet has smudged the line between nation states. And even though there is a Google for each one, thanks to VPNs, cross-border networks and, heck, even easily available travel options, people aren’t necessarily relegated to their hometown Google.

The Law Is Nebulous

So, must the search engine apply an Australian court’s ruling across the global board? Is the mighty G responsible for thwarting an Australian online rant-typer on “Google, America”?

To be sure, no definitive answer exists. Like the Internet itself, international Internet laws are complex and in constant flux. Countries try to do their parts by limiting the amount of “online libel tourism” (Internet defamation plaintiffs who shop for the friendliest jurisdiction). But government statutes aren’t airtight. In fact, a few years ago, the U.K. tried to put a stop to libel tourism by revising their defamation laws, but people are still finding loopholes to use England’s ostensibly pro-plaintiff slander and libel laws.

The Inevitable Upcoming Fight Against Australia’s Google Defamation Ruling

The Australian defamation ruling against Google has tech and legal tongues wagging. Pundits are concerned about the possible (and largely theoretical) censorship implications. The decision, arguably, also sets a bad precedence for continued online innovation.

Every pundit and lawyer expects Google to appeal. It’s sure as done. If a higher Australian court doesn’t overturn the current mandate, Google may morph into a very different search animal down under. Until then, expect a metric ton of amicus briefs to be written, by independent watch groups and attorneys, on behalf of Google.

Criminal Defamation in the United States: A 2015 Update

criminal defamation
2015 US Criminal Defamation Update

Georgia Erased Its Criminal Defamation Statute

During the 2014-2015 legislative session, via House Bill 252, Georgia representatives finally axed several statutes that have little businesses existing in the 21st century – and one of those decrees was the State’s criminal defamation law.

It’s been a Long Time since Georgia Threw Anyone in Jail for Defamation in Georgia

Though the criminal defamation law has remained on Georgia’s law books, it has not been used since the 1982 case, Williamson v. Georgia. At that time, the Georgia Supreme Court ruled that felonious slander and libel laws contradicted the state constitution. But despite the Williamson ruling, the laws stayed on the books.

Criminal Slander and Libel across the United States

Colorado

Colorado also repealed its criminal defamation statute in 2012. Officials in the Centennial State quickly erased the law after the District Attorney’s office was forced to shell out about $425,000 on account of a criminal libel warrant gone terribly wrong.

SCOTUS’ Take on Criminal Defamation

Though the Supreme Court of the United States has not banned criminal defamation statutes on a federal level, in its Garrison v. Louisiana, the court strongly suggested that those types of slander and libel laws had no place in modern society.

States that Still Have Criminal Defamation Laws

Several states continue to keep criminal defamation laws on the books including Florida, Idaho, Kansas, Louisiana, Colorado, Michigan, Montana, New Hampshire, New Mexico and North Carolina. That said, having such statutes on the books doesn’t mean they’re evoked. It’s been a long, long time since someone has been successfully charged with criminal slander or libel in the United States.

Speak With a Defamation Lawyer

Aaron Kelly, partner at Kelly Warner maintains, a 10-out-of-10 rating on lawyer review website AVVO, in addition to a preeminent rating with venerated attorney ranking group, Martindale-Hubbell.

As one of the first firms to focus on Internet defamation, the libel lawyers at Kelly Warner know exactly how to approach all manners of online defamation cases – involving both businesses and individuals.

Fixing an Internet defamation issue is sometimes a lot easier than you may assume – and a lot less expensive. Get in touch today. Tell us about your situation. We’ll be able to guide you in the right direction, which isn’t always a lawsuit.

Article Sources

Duffy, M. (2015, August 12). Death of Georgia’s criminal defamation law. Retrieved October 12, 2015, from http://www.daltondailycitizen.com/opinion/death-of-georgia-s-criminal-defamation-law/article_518f2a5a-4163-11e5-8023-b7d34b422721.html

Defamation of Character Lawsuit: Doctor v. Former Patient

defamation of character case study
A Florida doctor is the defendant in a defamation lawsuit.

A brain surgeon, whom the Miami Herald describes as a “high-profile doctor at” the University of Miami, is being sued for defamation of character by an alleged former paramour.

According to reports, because of complaints lodged by Dr. Bruno Gallo, Lisa Morse allegedly became the subject of a “be-on-the-lookout” flyer distributed to “officials” on the University of Miami campus.

Morse insists that Gallo’s claims are bogus. She also contends that the flyers were vicious, defamatory, baseless and untrue attacksthat “severely limited her ability to earn a living.”

Who Will Win This Defamation of Character Lawsuit?

At the time of this writing, few details about this doctor defamation case have found their way online. To wit, it’s difficult to prognosticate about its eventual outcome. That said, let’s take a minute to talk about what constitutes defamation of character under U.S. law.

The Four Pillar of Slander and Libel

Established case law and the First Amendment of the U.S. Constitution make winning a stateside defamation (slander if spoken, libel if written) lawsuit difficult. At the very least, to win a slander or libel lawsuit in the States, plaintiffs must prove the four pillars of defamation.

  1. Falsity: Pure opinion and truth are acceptable forms of legal speech. So, to win a defamation of character lawsuit, the plaintiff must prove that the defendant was, in some way, responsible for the distribution of false, unprivileged information.
  2. Harm: To win a slander or libel lawsuit, it’s not enough to only prove that the defendant made a false statement of fact. Plaintiffs usually have to demonstrate that the false statement of fact caused them either reputational or material harm. The exception to this rule is defamation per se cases where the harm is inherent (go here to read more about defamation of character per se – in the sidebar.)
  3. Identity: Some defamation lawsuits are lost because plaintiffs can’t prove that the defendant was referencing them in the contested statement.
  4. Negligence: The final thing plaintiffs must prove to win a defamation lawsuit is either negligence or actual malice. U.S. slander and libel law differentiate between “public figures” and “private figures.” Private figures only have to prove the defendant was negligent in making the statement, whereas public figures must prove actual malice. To learn more about why, click here and here.

Are You Dealing With A Doctor Defamation Situation?

Are you a medical professional whose reputation setback? Are you being accused of defamation by a medical professional? Our attorneys have served on both the plaintiff and defendant sides of doctor defamation lawsuits. An AV-rated practice, we enjoy a successful track record and have helped countless medical professionals with various reputation attacks that affect their careers. Contact Kelly Warner today to begin the conversation.

Post Source

Lambiet, J. (2015, June 28). Jilted ex of former UM surgeon Bruno Gallo sues for defamation. Retrieved July 24, 2015, from http://www.miamiherald.com/entertainment/ent-columns-blogs/jose-lambiet/article25705117.html

Australian Defamation Case Study: The Hockey Incident

Australian defamation law
A surprising decision in an Australian  Twitter defamation case further defines Internet libel laws in the Antipodes.

An Australian defamation ruling will probably affect how Australians word tweets from here on out.

In this post, we’ll review the case, and then examine the likelihood of a U.S. court delivering the same verdict. If you’ve landed on this page in search of an international online defamation lawyer, click here.

The Tweets That Launched an Australian Defamation Lawsuit

In May of last year, Fairfax Media (an Aussie media outlet) ran a story about Australian Federal Treasurer Joe Hockey’s alleged complicity with, what sounds like, a modern-day political simony scheme. According to a Fairfax Media investigation, a Sydney business group supposedly bestowed inappropriate “access” on Hockey, presumably in exchange for political favors.

As part of efforts to promote the story, Fairfax released two tweets. One simply said, “Treasurer Hockey for sale” followed by a link; the second read, “Treasurer for Sale: Joe Hockey offers privileged access” and was accompanied by a micro-summary of the story.

In response to the tweets, Hockey filed an online defamation lawsuit. After both sides presented their arguments, Justice Richard White decided:

“There would have been a large number of persons, perhaps in the tens of thousands, who read the bare tweets and who did not read further.”

Only The Tweets Are Defamatory, Not The Actual Article

After the ruling, a Fairfax Media spokesperson explained to the press:

“The Court upheld Fairfax’s defence of the articles and found them not to be defamatory. Mr Hockey’s claims were only upheld in respect to the publication of the SMH [Sydney Morning Herald] poster and two tweets by The Age because they lacked the context of the full articles.”

In other words, the court said Fairfax Media’s investigative article about Hockey wasn’t defamatory. Only the tweets were libelous because they lacked clarifying context.

Would Hockey Have Won This Twitter Defamation Case In A U.S. Court?

Two win a defamation lawsuit in the United States, at the very least, plaintiffs must meet the following requirements.

Falsity: To win, plaintiffs must prove that defendants made unprivileged, false statements of fact.

Harm: For claimants to win slander or libel lawsuits, it’s not enough to demonstrate that a statement was false, they typically must prove that it caused material or reputational harm. (The exception to this rule is defamation per se, which you can read more about here in the sidebar.)

Negligence or Actual Malice: Intention is a big part of defamation law. To win a case, plaintiffs must prove that their respective defendants were either negligent or, in some cases, intentional in releasing the statements under review.

So, taking the parameters of U.S. defamation law into consideration, would Hockey have won this lawsuit on American soil? Probably not. Especially since the court found that the actual article, which the tweets referenced, was not defamatory.

Differences Between U.S. and Australian Defamation Law

Slander and libel laws in the United States and Australia are a lot more different than some people may think. Like other British Commonwealth nations, Australian defamation laws are more plaintiff-friendly than those in the United States,  which is why some stateside clients choose to file overseas when circumstances permit. That said, so-called libel tourism is frowned upon, universally. As such, though it has been done, it’s difficult to get a commonwealth court to accept a foreign case, especially since the libel reforms of 2013.

Speak With An International Online Defamation Attorney

Do you need to speak with an attorney who understands the legal nature of online reputation attacks? If yes, contact Kelly Warner Law. Our firm has successfully handled hundreds of Internet defamation and trade libel cases. A top Av-rated firm, Kelly Warner lawyers are known for their attention to detail and creative solutions.

Pick up the phone – or Skype – to begin the conversation.

 

Source Article

Patient v. Doctor Defamation Lawsuits: Case Study & Attorney Contact

patient v. doctor defamation
Patient v. Doctor Defamation Case Study

Two years ago, a Virginian named D.B. was readying himself for a colonoscopy. Before going under, knowing he’d be knocked out via anesthesia – and probably groggy upon waking – D.B. activated his phone’s recording feature and slipped it into his pocket. But little did D.B. know that the recording would result in a $500,000 malpractice and defamation award.[1]

Doctors’ Discussion Leads to Patient Defamation Lawsuit

According to the Washington Post, during the procedure, two of D.B.’s attending doctors exchanged hurtful barbs about their patient. They said things like:

  • “After five minutes of talking to you in pre-op, I wanted to punch you in the face and man you up a little bit.”
  • In response to an allegedly non-contagious rash the patient had on his body, the medical professionals’ commented, “some syphilis on your arm or something” and “It’s probably tuberculosis in the penis, so you’ll be all right.”
  • One of the doctors also criticized patients, in general, for “too much Internet use, [and] a little too much information.”

When D.B. listened to the playback, he was dismayed to discover his doctors’ arguably unprofessional and possibly defamatory conversation. He decided to file a lawsuit.

The Trial & Doctors’ Defense Arguments

At the onset of the trial, the judge dismissed one of the accused doctors from the case.[2]

After the paring, according to reports, the remaining plaintiffs sought a case dismissal; their attorneys argued that the recording was inadmissible since the doctors didn’t consent to its making. But the defense rationalization ultimately failed, because Virginia is a “one-party consent” state, meaning only one person needs to be aware of a recording for it to be admissible in legal proceedings.

Jury Compromise in Doctor Defamation Case

After a 3-day trial, the jury came to a compromise. The twelve men and women decided on a $500,000 award for the plaintiff, D.B. — $100,000 for defamation, $200,000 for malpractice, plus $200,000 in punitive damages. The jury also recommended that a facility at which one of the doctors worked pony up $50,000 of the punitive penalty.

Initially, D.B. asked for $1.75 million lawsuit claiming both defamation and malpractice, but the jury only awarded him $500,000. Why the downgrade? According to juror Farid Khairzada, the group was divided. But eventually, the twelve men and women compromised. Khairzada explained:[2]

“We finally came to a conclusion that we have to give him something, just to make sure that this doesn’t happen again.”

At the time of this writing, media outlets were unable to get quotes from the defeated defendants. It’s unclear, at this time, if they’ll appeal.

What Makes This Doctor Defamation Case Worth Blogging About?

This doctor defamation lawsuit is instructive in that it highlights three important fundamentals of U.S. slander and libel law.

  • Not Many People Have to Hear or Read Something for It to Be Defamatory: In D.B.’s case, even though the comments weren’t broadcast to a large audience, they were still deemed defamatory. Comments don’t need to be heard or read by a lot of people for a judge or jury to consider them libelous or slanderous; a handful of doctors and assistants in the room heard the statements, which was enough for a defamation ruling.
  • Defamation Plaintiffs Must Prove Harm: To win a slander or libel lawsuit in the U.S., plaintiffs must prove that they suffered material or reputational harm. The exception is defamation per se. Defamation per se is a category of slander or libel in which the plaintiff doesn’t have to prove harm because the statement is considered inherently defamatory. Accusing someone of having a loathsome disease often qualifies as defamation per se in states that recognize the distinction. In this example case, the doctors intimated that the patient had syphilis and tuberculosis.
  • Professional Privilege Plays A Role In Defamation Lawsuits: At times, defamation lawsuits against doctors are thrown out on account of professional or patient privilege. But, in the example case, since the statements under review fell outside the scope of the colonoscopy, the chatter was not deemed privileged.

D.B. said he felt “verbally brutalized” and suffered from anxiety and insomnia on account of the event.

Talk With An Attorney Who Has Handled Medical Defamation Cases

Kelly Warner lawyers regularly work with medical professionals and patients facing  reputation challenges. A top AV-rated practice, our team has earned a solid reputation amongst colleagues and clients alike. To speak with someone who can help solve a defamation issue, contact us.

Doctor Defamation Article Sources:
[1] Jackman, T. (2015, June 23). Anesthesiologist trashes sedated patient – and it ends up costing her. Retrieved July 12, 2015, from http://www.washingtonpost.com/local/anesthesiologist-trashes-sedated-patient-jury-orders-her-to-pay-500000/2015/06/23/cae05c00-18f3-11e5-ab92-c75ae6ab94b5_story.html
[2] Garcia, A. (2015, June 23). Virginia man awarded $500,000 after catching doctors on tape mocking him during surgery. Retrieved July 12, 2015, from http://www.rawstory.com/2015/06/virginia-man-awarded-500000-after-catching-doctors-on-tape-mocking-him-during-surgery/

Ripoff Report Updates Long-Standing Removal Policy

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Ripoff Report Removal & Redaction

For five or so years, the business community has hotly debated Ripoff Report’s (ripoffreport.com) removal policy. The consumer review website has earned a reputation among some entrepreneurs for not removing any postings – even defamatory ones.

In the past, people who wanted to challenge claims were welcome to post rebuttals, but the site has always maintained a strict hands-off policy with regards to redacting posts.

Regardless of peoples’ opinions, Ripoff Report’s removal position was (and still is) solid and supported by numerous federal and state laws.

Did Ripoff Report Change Its Removal Policy?

Recently, Ripoff Report has made some significant changes to its redaction policies. Although the arbitration program and corporate advocacy programs still exist, Ripoff Report has made a change regarding the redaction of information found to be defamatory by a court.

According to a Ripoff Report executive, the consumer review website is still developing a new procedure in which it would voluntarily honor certain court orders, under very specific, limited, circumstances. The executive said the policy change was prompted by “respect for the courts and the judicial process.”

This is a significant change for Ripoff Report. We hope it proves helpful to small business owners.

Ripoff Report Will Not Honor All “Removal” Court Orders

Must Mention Defamation

At the very least, for Ripoff Report to even consider honoring a court order, it must mention which claims or statements are defamatory or libelous. Even then, it’s unlikely that site administrators will remove the whole report. According to Ripoff Report, the site will give court orders “special prominence” on the relevant pages, and will “redact the information specifically identified as false” under extreme enough circumstances.

We can confirm that Ripoff Report will, indeed, in very limited circumstances, redact content. In fact, we recently obtained a favorable result for a client who was dealing with a defamatory post. But since every case is different, you shouldn’t assume the same results.

In fact, we recently obtained a favorable result for a client who was dealing with a defamatory post.

Mandatory Court

Ripoff Report’s new removal policy only applies in cases where both sides have presented arguments in court – and then the court found against the author of the contested posting. Default judgments will probably not be accepted. Still, the change is a step forward for people and businesses that have been defamed on ripoffreport.com.

Speak To A Ripoff Report Removal Lawyer

Is a false posting on Ripoff Report causing your business hardship? The attorneys at Kelly Warner Law have worked with hundreds of entrepreneurs and businesses in mitigating the crushing effects of defamatory online consumer reviews. If you’ve been “hit,” contact our ripoffreport.com removal attorneys; they’ll be able to review the specifics of your situation and, depending on the circumstances, may be able to guide you towards an effective outcome.

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Defamation Law: Is It Defamatory To Say People Were Fired If They Quit?

is it defamatory to say people were fired if they quit
Is it defamatory to say people were fired if they quit? A new lawsuit probes the question.

Is it defamatory to say people were fired if they quit? Former PayPal employee Rakesh Agrawal is testing the legal waters to find out.

Resignations + New Phones + New Orleans / Twitter = Online Defamation Lawsuit

Our story starts the day that Rakesh Agrawal, then director of strategy for PayPal Inc., decided to pull a Jerry McGuire and quit his job in spectacular fashion. Agrawal’s public resignation play? He posted a copy of his “I’m outta here!” letter online.

A day later, Agrawal found himself at the New Orleans Jazz Fest – with a brand new (Chekhov’s) phone. Presumably, jocularity ensued. And by the wee hours of the morning, Agrawal had tweeted a 140-character rant about PayPal’s then global brand and communications officer. The highlights: “piece of $#!+” and “useless middle manager”.

By sun-up, Agrawal had deleted his tirade.

But it turns out that the Watcher in PayPal’s Woods spied Agrawal’s rant before he removed it. And with a dash of middle school ‘tude, the official PayPal Twitter account coughed up this finger wag:

“Rakesh Agrawal is no longer with the company. Treat everyone with respect. No excuses. PayPal has zero tolerance.”

Is It Defamatory To Say People Were Fired If They Quit? I’m Going To File A Lawsuit To Find Out.

When Agrawal heard about PayPal’s “zero tolerance” message, he took things next level and filed a defamation lawsuit against his former employer. Agrawal’s arguments are simple (perhaps to a fault – and of course, we’re paraphrasing here):

  • New Phone Defense: Those were supposed to be private messages, not public tweets! Look, I was using a new phone, of course I messed up!
  • I Blinked First Argument: PayPal never fired me. I quit! And posted a resignation letter a full day before PayPal’s tweet about me!
  • Lost Opportunities: PayPal is making it seem like they fired me for ‘misconduct and disrespect’; it’s misleading and resulted in lost opportunities.

Can An Ex-Employee Win A Twitter Defamation Case Against A Former Employer?

So, does Agrawal have a viable Twitter defamation case? While it’s never wise to augur a judge’s ruling – because the legal devil is always in the brief details – it’s fair to say that Agrawal will have to do some strenuous uphill climbing to win this case. Why?

Carefully Worded Statements v. Reasonable Understanding

For starters, PayPal’s tweet didn’t, specifically tweet: “PayPal fired X because of Y.” Instead, the company went with a carefully worded passage informing readers that Agrawal “was no longer with the company” – which could either mean he was fired or quit. And in defamation cases, judges are required to assume the most innocent interpretation.

Agrawal argues, via his lawsuit, that PayPal’s tweet is:

“reasonably understood by those who read it to mean that plaintiff had been fired by PayPal for misconduct and disrespect.”

But, when weighing defamation case law against the known facts of this case, the argument probably won’t hold up because it’s too subjective an assertion.

Moreover, to win, Agrawal, at the very least, will have to prove:

  • That the PayPal tweet contained a false statement of fact about him. Sure, there is such a thing as “defamation by implication,” but this case doesn’t have the meat needed to make a convincing defamation by implication claim. Especially since U.S. case law demands that the most innocent interpretation be assumed.
  • That PayPal acted negligently in sending out the tweet.
  • That PayPal’s tweet led to material or reputational harm for Agrawal. Lawyers for the plaintiff could try to argue defamation per se, meaning argue that the PayPal tweet was inherently defamatory because it disparaged Agrawal’s professionalism, but it’d be a coin toss as to whether or not a judge – and eventually appeal’s panel – would be convinced by the argument.

But hey, you never know. Sometime the courts surprise.

Reputations are priceless. And in today’s viral market, success involves maintaining a good name. Kelly / Warner is a leader in the internet defamation litigation and reputation management industry. We’ve helped over 800 brands with digital defamation clean-up in the wake of a disparaging campaign or incident.

Contact us to find out how we can revive your good reputation.

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“Is it defamatory to say people were fired if they quit?” is just one of the common slander and libel questions we often field. Check out our blog for more defamation case examples and lawyer advice.

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Is A Nevada Defamation Law Change On The Way?

Nevada defamation law
Is a Nevada defamation law change coming? Will it be a positive move for small businesses in the state?

If Nevada’s defamation bill SB444 passes, it’ll be easier for businesses to protect their online reputations.

True Issue at the Root of Nevada’s Defamation Debate: How Easy Should It Be for Businesses to Sue Online Reviewers?

Should businesses be able to sue customers for leaving bad reviews? What about customers who temporarily part ways with sanity, make  friends with a bottle of pinot,  and decide to spend the night anonymously misdirecting personal frustrations at the Internet in the form of SCREAM TYPED tall tales and fibs about businesses or a nemesis?

In Nevada, lawmakers are tackling the question.

Within the context of the state’s Strategic Lawsuit Against Public Participation (SLAPP) statute, legislators are, essentially, debating where the free speech line ends and the defamation line begins.

Is Nevada’s SB444 Pro Small Business?

Nevada State Bill 444 could be seen as a “pro-SMB” bill, as its goal is to “balance” the law books, making it possible for genuinely wronged businesses to sue online detractors who lie about services or products.

If passed, the law would weaken Nevada’s current SLAPP statute by requiring less pretrial demonstrations of case fitness. As a result, more business plaintiffs could move forward with slander and libel lawsuits against online defamers instead of having the claims quashed early in the litigation process.

Nevada Defamation Bill Already Passed, But Now There Are Some SLAPP Problems

A couple of months ago, Nevada legislators actually passed SB444, unanimously. But since gavel, opposition groups have stepped in – and now Nevadan politicians are arguing about defamation law.

What would happen is SB444 Passes?

If the Nevada defamation bill is green lit, Nevada’s anti-SLAPP law would lose some litigation weight, if you will. Opponents argue that weakening it would be a palpable blow to constitutional rights. SB444 Proponents, however, think SB444 brings “much needed balance” to the state’s slander and libel standards, which will ultimately help small business owners effectively deal with malicious defamers.

Click here to learn more about Nevada’s slander and libel laws. If you need to speak with a defamation lawyer about a case involving a Nevada business or person, get in touch.

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Thanks to a network of attorneys, Kelly / Warner can litigate Nevada defamation cases.
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