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40. What Can I Do If a Negative Rating, Review, or Comment About My Practice Is Posted on a Blog or Website?
ОглавлениеInternet ratings sites (Yelp, Healthgrades, DoctorOogle, Bestdentists, Angie’s List, RateaDentist, RateMDs, etc.) are almost all inherently unfair. The people posting the ratings are generally anonymous (save for the poster’s screen name) so they take no real ownership for the content. Discovering the poster’s identity is often impossible (and, where it is possible, will often require expenditure of substantial legal fees). Further, even in the unusual situation where you are able to learn the poster’s identity, his or her comments have wide protection as his or her “opinion,” as opposed to a factual allegation. The websites on which they post their comments are nearly untouchable from a legal perspective. Even if you are able to discover the identity of the poster and prove (overcoming obstacles to proof such as HIPAA and state privacy laws) that the comment is defamatory (as opposed to opinion), proving damages in such cases is extremely difficult.
Given that these ratings sites likely will be with us for the foreseeable future, and that consumers afford them credibility, it is important to understand how to best navigate them. One 2013 study found that 79 percent of consumers trust online reviews as much as personal recommendations.4 But first a brief discussion on how we got here, with a real life example:
A parent of a patient of a California dentist wrote the following on Yelp:
“1 Star Rating! Let me first say I wish there is a ‘0’ star in Yelp rating. Avoid her like a disease! She treated two cavities…but my son was light headed for several hours after the filling. The filling the dentist used is metallic silver color. The metallic filling… has a small trace of mercury in it. I regret ever going to her.”
The dentist requested that Yelp remove the review. Yelp did not remove the review. The dentist then filed suit claiming libel, slander, and intentional and negligent infliction of emotional distress against the parents who wrote the review and Yelp, the host of the Internet forum. (This was an unusual case in that the reviewer was known to the dentist.)
The court held that Yelp was entitled to dismissal under California’s anti-SLAPP statute. A SLAPP (Strategic Lawsuit Against Public Participation) lawsuit is a suit filed to stifle those who take an adverse position on an issue of public interest. Anti-SLAPP statutes allow courts to dismiss lawsuits which stifle discussion on matters of public importance and for which there is not a reasonable likelihood the plaintiff will prevail. More than half the states currently have such statutes.
The court held that, in this case, dental fillings were a matter of public interest. Because California’s anti-SLAPP statute permits the prevailing party to recover attorney’s fees, the dentist was ordered to pay over $80,000 of other parties’ (Yelp’s and the parents’) legal fees. This was in addition to any fees the dentist paid to her own attorney, and the cost to the dentist in time and angst.
But wait — there’s more! The dentist received considerable publicity over the lawsuit, including newspaper, radio and Internet reporting. The dentist had inadvertently turned one small Web posting into a Web avalanche.
The “Streisand Effect” — the term for what sometimes occurs where an attempt to remove, censor, have deleted or otherwise hide information on the Internet — has the unintended consequence of publicizing the information even more broadly. The term has its genesis in a lawsuit filed by Barbara Streisand seeking to have aerial photographs of her coastal California home removed from the Internet plus $50 million in damages. Before Ms. Streisand filed, the image had been downloaded only six times, two of them by her own attorneys. As a result of her filing the case, the next month more than 420,000 people visited the site. There are a number of examples in the dental realm where a dentist responding to a negative post inadvertently ended up only bringing greater attention to the posting. For example:
• A Yelp reviewer’s attorney responds to a dentist’s letter:
www.popehat.com/wp-content/uploads/2013/06/thisissparta.pdf
• Anti-SLAPP dismissal of a suit:
• Dentists loses on anti-SLAPP and is assessed fees of $43,000 for the first action and $23,000 for the second:
www.courts.ca.gov/opinions/nonpub/A136463.PDF
• A listing of doctor lawsuits over patient reviews:
www.digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1289&context=historical
A dentist bringing suit to have a negative review removed starts with a few disadvantages:
• The Web host is protected from liability under the Communications Decency Act of 1996 (47 U.S.C. Sec. 230); the host is not a “publisher” of the comment
• It is often difficult and expensive to obtain the identity of the content creator
• Reviews and comments have wide protection as “opinions”5
• Medical professionals may be constrained from responding by HIPAA and state privacy laws
• Proving monetary damages is difficult to do
• Where anti-SLAPP laws are applicable, the dentist may be liable for the defendant’s legal bills, as well as the dentist’s own legal bills
• The lawsuit itself may result in bringing even greater attention (the “Streisand effect”) to the negative review
As you look at a posted negative review, take a deep breath and consider:
• How many people will really see the negative review?
• Will this review actually affect the practice/business?
• Is the host of the Internet forum immune under the Communications Decency Act?
• Will you be able to identify the content creator?
• Would it be worth the considerable time, effort, expense and adverse publicity to file and pursue a lawsuit?
• Is there a chance that your response (lawsuit or otherwise) might actually increase the number of people who will read the negative review?6
• Is there a means that can be used to remove (or minimize the effect of) the review or to positively position the practice to make up for the negative review?
If litigation is not generally the answer to a negative review, then what is? Well, unfortunately there are no silver bullets.
One thing you might try is to request that the Web host voluntarily remove the offending Web post. On this front, your chances for success are not high, particularly if the Web posting falls into the category of the poster’s opinion. You will likely maximize your chance of success in this appeal if you are able to demonstrate that the post violates the Web host’s own “Terms of Use.” Frequently the Web host’s “Terms of Use” prohibit users from posting material that “…infringe[s] a third party’s rights, including without limitation any privacy, publicity or intellectual property rights, or that are unlawful, untrue, harassing, libelous, defamatory, abusive, potentially tortious, threatening, harmful …or that is otherwise objectionable.”7 To the extent that your request for removal is able to make the case that the post falls into one of these prohibited categories, you are likely to increase your chances of success in persuading the Web host to voluntarily remove the comment.
You may decide ignoring the negative review is your best response, and often it will be. However, you should evaluate responding on a case-by-case basis. If the person leaving the comment has a large following, appears to be making a measured and justified complaint to anyone who might come across it, or is turning to the Internet as a last resort after already contacting your office, you may want to respond to the review (without violating HIPAA or state privacy law). In those instances where you chose to respond, it is imperative that you remember that your audience is not the individual posting the content; it is the dozens of people who will see your response and judge you (and your practice) on the basis of your response. You do not want to engage in an online debate over the incident that provoked the review. You do not want to appear defensive, confrontational or accusative. You do want to come off as caring, concerned and compassionate. A productive response along these lines might be:
“We are sorry that you feel that way. We treat hundreds of patients who are extremely satisfied with our practice, and we want to make sure that you are one of them. Please call our office so that we can see what we can do to make things right.”
Another way to deal with a negative review is by receiving multiple positive reviews, effectively “burying” the negative review amidst a sea of the positive. If a single bad review is all that appears on a Web search, it may stand out. If the negative review is one of many and all the other reviews are positive, the one negative review is more likely to appear as an aberration. One way that a negative comment can be “buried” amidst a quantity of positive comment is for patients who have had positive experiences with your practice to post positive comments and ratings.
However, you need to be cautious in this regard — there are regulations that limit your ability to solicit positive reviews by either compensating (whether by cash or by “in-kind” payment, such as discounts) reviewers or requesting persons associated with your practice (such as your staff) from posting positive comments; reviewers who post such endorsements must disclose that they have been compensated for their review or disclose their relationship to the practice. Making it appear that solicited (e.g., paid for) content originated spontaneously rather than as part of a campaign is sometimes referred to as “astro-turfing.” (It takes place at a “grassroots” level, hence the term.)
Another way to deal with a negative review is by receiving multiple positive reviews, effectively “burying” the negative review amidst a sea of the positive.
Likewise, you can seek to have other positive content on your practice posted on the Internet so that a search by a potential patient will yield overwhelmingly positive content. Just make sure that what you say is true. Some means of generating such positive content posted include:
• Get media attention for performing charitable endeavors (these will show up when potential patients search your name on the Web)
• Contribute dental-related content to other websites
• Start a practice-related blog
The majority of people do not go to the second page of a Web search. If you are able to provide sufficient positive content such that the negative comment is pushed off the first page of a search, you will have successfully minimized the chances that someone searching your name will ever see the comment.
To summarize, responding appropriately to a negative review is a difficult and emotion-laden task, but it can be important to do so. Take a few deep breaths before you decide how and if to respond. If you elect to retain an attorney, be aware that on some occasions this course of action has backfired in a number of ways (e.g., bringing even greater publicity to the negative comment, resulting in a dentist forced to pay not only their own legal fees, but those of the defendant). If you elect to seek to have the Web host voluntarily remove the post, review the Web host’s own terms of use to see if the post violates those terms. Finally, if you elect to respond to the post online, remember two things:
• Avoid violating HIPAA and state privacy law
• That your “audience” is not the individual comment creator, but the dozens of others who will see your response and will likely judge you and your practice more on your response than on the negative comment itself.
