In early July 2017, Michelle Levine booked her first and only appointment with gynecologist Dr. Joon Song for an annual exam. Ms. Levine had a dissatisfying experience with the office. She claims that Dr. Song’s office did not follow up with her for almost a month, and that when she called to ask about the results of a blood test, Dr. Song’s staff falsely informed her that she tested positive for herpes. To top it off, Ms. Levine alleges that the office overcharged her. Following this experience, Ms. Levine did what many others do when dissatisfied with a product or service—she took to the internet to complain.
On July 10, August 10, and August 11, 2017, Ms. Levine authored several negative reviews about Dr. Song and his business. She posted reviews on Yelp, a popular consumer review website, and on ZocDoc, HealthGrades, and RateMDs, platforms where patients can rate and review medical professionals. In her one-star Yelp review, Ms. Levine described Dr. Song’s office as a “[v]ery poor and crooked business practice” that “caused [her] to go into a panic” after giving her false information over the phone. She accused the office of trying to scam her and stated that Dr. Song “needs to lose his medical license.”
Less than two weeks after Ms. Levine’s August 11 review, Dr. Song’s attorneys filed a complaint against her alleging defamation and trade libel, tortious interference with contracts, and intentional infliction of emotional distress. The complaint sought a permanent injunction against her to bar her from disparaging Dr. Song or from “otherwise posting defamatory comments about” him and his business. Additionally, Dr. Song sought “exemplary or punitive damages in an amount appropriate to punish [Ms. Levine] and to make an example of [her] to the community,” as well as actual damages “in no event less than $1,000,000.” Dr. Song has since described that amount as “a symbolic sum.” Meanwhile, Ms. Levine has set up a page on GoFundMe, a crowdfunding platform, to cover the legal fees she claims are required for her defense.
Arguably, this litigation has made matters worse for both parties. Since this litigation commenced, Ms. Levine has given interviews with news outlets, explaining that she has struggled with the financial burden of defending herself. Initially facing only four negative reviews of his business, Dr. Song now must contend with news articles about this litigation, which, perhaps deservedly, paint him in a litigious light. But he too has gone to the press and both parties seem to have done so in violation of a stipulation made between them. Further, Ms. Levine allegedly posted even more negative reviews after the litigation commenced, targeting both Song and his attorneys. From the perspective of an outside observer, what started as a dissatisfied patient airing her perceived grievances online seems to have escalated into a public feud. Rather than serve as a means of resolving the differences between the parties, this litigation has only acted as an accelerant, fanning the flames of their conflict and inspiring further animosity.
Yet, this Note does not seek to comment on the specific merits of Dr. Song’s claim against Ms. Levine. Instead, this Note seeks to address significant issues raised in this litigation. In a state with an opinionated populace such as New York, should consumers, like Ms. Levine, be free to post negative reviews online without fear of legal reprisal? To what degree should service providers, like Dr. Song, be able to silence those negative reviewers with litigation?
To begin answering these questions, Part I of this Note will discuss the New York State anti-SLAPP law and its very limited applicability in the online consumer review context. Next, Part II will examine free speech under the New York Constitution, compare it to the protection offered by the Federal Constitution, and illustrate that the former provides broader protection for statements of opinion than the latter. Finally, Part III will argue that, under the relevant New York case law, online reviews should most often constitute nonactionable opinion. Part III will go on to argue that the special consideration given to letters to the editor, and similar journalistic opinion pieces, should extend to the online review context. Such an extension by the New York Court of Appeals would send a message discouraging defamation suits against online reviewers and encouraging their dismissal. It would solidify the free speech rights of speakers in the consumer review context with a measure of protection currently unavailable under New York’s weak anti-SLAPP law.