from the anonymity-matters dept
I’ve never understood why so many doctors sue over bad reviews, but it just keeps happening. Dr. Muhammad Mirza has built up something of a reputation for suing people who leave bad reviews on Yelp — and has been successful in stifling speech:
Dr Mirza says he’s already won or reached settlements with three reviewers, forcing them to take down the false review and pay an undisclosed amount of money.
As that article notes, he was able to get courts to force Yelp to turn over the names of anonymous reviewers in the past, and it appears that has emboldened him to continue suing reviewers.
However, in one of his more recent cases, thankfully, a court has pushed back on the unmasking attempt. This was yet another case where Dr. Mirza had to go to court against Yelp to try to get the company to unmask an anonymous reviewer who wrote:
“Worst experience I’ve ever had! Woke up looking like a monster!!! Cheap product
and he’s absolutely not experienced nor does he care!!!!!”
As Yelp pointed out to the court, this statement clearly is not defamatory as there are no statements of fact that can be proven true or false — it’s all opinion. And, thankfully, anonymous speech is protected under the 1st Amendment. In a recent ruling in NY the court agreed and rejected Dr. Mirza’s attempts to unmask that reviewer.
The ruling is pretty short, but worth reading. It notes the importance of protecting anonymous speech. That does not mean that anyone who is anonymous can get away with saying anything, but there is a reasonably high bar for unmasking such speech:
Anonymous Internet speech is protected by the First Amendment. See In re Anonymous
Online Speakers, 661 F.3d 1168, 1173-77 (9th Cir. 2011); accord Rich v. Butowsky, No. 20
Misc. 80081, 2020 WL 5910069, at *3 (N.D. Cal. Oct. 6, 2020). Anonymous speech “is not
unlimited, however, and the degree of scrutiny varies depending on the circumstances and the
type of speech at issue.” Anonymous Online Speakers, 661 F.3d at 1173; accord Butowsky, 2020
WL 5910069, at *3. Courts in the Ninth Circuit have required pleadings to meet a variety of
standards before requiring disclosure of an anonymous speaker’s identity. Anonymous Online
Speakers, 661 F.3d at 1175-76 (collecting cases) (noting that some cases require plaintiff to
make a prima facie showing of its claim, that others rely on a motion to dismiss or good faith
standard, while others rely on a standard somewhere between the motion to dismiss and the
prima facie standard). Plaintiffs argue the Court should apply the First Amendment standard set
forth in Highfields Capital Mgmt., L.P. v. Doe, 385 F. Supp. 2d 969 (N.D. Cal. 2005), and Yelp
does not object to application of the test. Because Highfields is persuasive on this issue, it will
be applied. See Butowsky, 2020 WL 5910069, at *3 (applying the First Amendment standard put
forward by the parties); see also Music Grp. Macao Commercial Offshore Ltd. v. Does, 82 F.
Supp. 3d 979, 983 (N.D. Cal. 2015) (concluding Highfields provided the correct standard among
“the developing tests in the area of anonymous online speech,” where challenged speech was (1)
derogatory statements about a corporate official and (2) criticism of plaintiffs’ business).
Under the Highfields test, a party seeking enforcement of a subpoena must first make out
“a real evidentiary basis for believing that the defendant has engaged in wrongful conduct that
has caused real harm to the interests of the plaintiff.” Highfields, 385 F. Supp. 2d at 970. The
Ninth Circuit has characterized this as a requirement for the plaintiff to establish a prima facie
case for its claims. Anonymous Online Speakers, 661 F.3d at 1175. If a plaintiff successfully
makes a prima facie case, the court must next “assess and compare the magnitude of the harms
that would be caused” to (1) the plaintiff’s First Amendment interests and (2) the defendant’s
commercial interests. Highfields, 385 F. Supp. 2d at 976, R&R adopted, 385 F. Supp. 2d at 971.
If such an assessment reveals that disclosing the defendant’s identity “would cause relatively
little harm to the defendant’s First Amendment and privacy rights,” but is “necessary to enable
[the] plaintiff to protect against or remedy serious wrongs,” then the court should allow the
In this case, the initial complaint fails to meet the standard of claiming defamation.
WHEREAS, the Complaint’s defamation claim arises under New York law.1 The
elements of a cause of action for defamation are: “(a) a false statement that tends to expose a
person to public contempt, hatred, ridicule, aversion, or disgrace, (b) published without privilege
or authorization to a third party, (c) amounting to fault as judged by, at a minimum, a negligence
standard, and (d) either causing special harm or constituting defamation per se.” Braunstein v.
Day, 144 N.Y.S.3d 624, 625 (2d Dep’t 2021) (internal quotation marks omitted). Statements of
opinion are not actionable, as “[a]n opinion cannot be proven false and therefore does not give
rise to liability for defamation purposes.” Gottwald v. Sebert, 148 N.Y.S.3d 37, 47 (1st Dep’t
2021). Statements must be viewed in context, and where a communication has a “loose,
figurative or hyperbolic tone” that “suggest[s] to a reasonable reader that the author was merely
expressing his opinion based on a negative business interaction with [a] plaintiff,” that
statement is one of opinion. Torati v. Hodak, 47 N.Y.S.3d 288, 290 (1st Dep’t 2017) (internal
quotation marks and alterations omitted). Courts must also be mindful that “readers give less
credence to allegedly defamatory remarks published on the Internet than to similar remarks made
in other contexts.” Id. (internal quotation marks and alterations omitted).
WHEREAS, Plaintiffs have not made a sufficient showing of a prima facie defamation
claim under New York law, as the Review, read in context, would be perceived by a reasonable
person to be nothing more than a matter of personal opinion as to the quality of Plaintiffs’
products and services. New York courts have consistently declined to find anonymous reviews
analogous to the Review actionable for purposes of defamation. See id. (concluding that
negative comments anonymously posted on consumer review websites, describing plaintiff as a
“bad apple,” “incompetent and dishonest,” and a “disastrous businessman” were not actionable);
Woodbridge Structured Funding, LLC v. Pissed Consumer, 6 N.Y.S.3d 2, 3 (1st Dep’t 2015)
(finding online review claiming defendants “Lie To Their Clients” and “will forget about you
and . . . all the promises they made to you” non-defamatory); Sandals Resorts Int’l Ltd. v.
Google, Inc., 925 N.Y.S.2d 407, 410-11 (1st Dep’t 2011) (email criticizing plaintiff’s operations
in Jamaica, despite containing specific factual allegations, was still a non-actionable opinion);
see also Mirza v. Amar, 513 F. Supp. 3d 292, 299 (E.D.N.Y. 2021) (rejecting Plaintiff Mirza’s
claims that a separate statement similar to the Review was defamatory).
And, importantly, the review did not have statements of fact, as it was clearly all opinion:
Plaintiffs next argue that two of the Review’s claims — that Mirza is “not experienced”
and uses “[c]heap” products — are actionable statements of fact. This argument is unpersuasive
because where “some of the statements are based on undisclosed, unfavorable facts known to the
writer, the disgruntled tone, anonymous posting, and predominant use of statements that cannot
be definitively proven true or false, supports the finding that the challenged statements are only
susceptible of a nondefamatory meaning, grounded in opinion.” Woodbridge, 6 N.Y.S.3d at 3.
Because Plaintiffs have not made a prima facie case of defamation, their request for the identity
of the John Doe defendant is improper.
I understand that it sucks to get negative reviews online. And, that not all online reviews are truthful. But that does not mean you get to automatically uncloak anonymous critics, nor does it mean you get to sue them for defamation.
In the meantime, kudos to Yelp for fighting for the rights of its reviewers, rather than just rolling over and handing out the info like lots of sites might do.