Court Says Google Must Unmask Person Who Left Wordless, One-Star Review Of Local Psychiatrist
from the 1/5-would-not-litigate-again dept
Back in August, psychiatrist Mark Beale filed a defamation lawsuit. His target? A one-star review containing zero words written by someone using the name "Richard Hill." Beale claimed this single review, hosted by Google, had irrevocably damaged his livelihood.
In support of this, he offered several bizarre assertions. (These can be found in voluminous documentation accompanying Beale's amended complaint [PDF].)
- He had no patient named Richard Hill, so the review was bogus.
- Richard Hill was obviously a pseudonym, hence the need for unmasking. (This could also be used to disprove his first assertion, but never mind all that, I guess…)
- His mom thought someone she knew might be trying to ruin his reputation. (No, really. See p. 12.)
- His internet expert affirms one-star reviews are far worse than five-star reviews. (See pp. 51-56 of the Beale complaint.)
- A one-star review (with zero words attached) is defamatory on its face.
Why this litigation is still in process boggles the mind. But strap your brain in. It's about to get much, much bogglier.
When we first covered the lawsuit, Beale's lawyer made what seemed to be a completely ignorant statement in regards to Beale's attempt to force Google to strip the anonymity from masked one-star reviewer "Richard Hill."
Beale's attorney, Steven Abrams of Mount Pleasant, said he has handled several similar cases, and companies like Google, AT&T, Comcast and Verizon typically hand over identifying information of anonymous users.
“Why Google fought this case, I have no earthly idea,” Abrams said. “There’s not really a lot of case law (in South Carolina) ... on these types of cases because they don’t usually result in a fight.”
It turns out there's not a lot of case law in South Carolina. Well, at least not a lot of logical case law, apparently. For reasons explained thoroughly by the court -- but otherwise inexplicable given the standards applied everywhere else -- Google is being forced to strip Richard Hill's anonymity. (h/t FIRE's Sarah McLaughlin.)
It starts out promising, but quickly turns to something completely ridiculous. From the court order [PDF]:
Because South Carolina has not established a test to unmask the author of an anonymous defamatory internet posting, the Court must look to other federal and state courts for persuasive authority. State Courts have applied three different tests. Courts have required plaintiffs to demonstrate one of the following:
(1) a good faith basis warranting disclosure;
(2) evidence sufficient to survive a motion to dismiss before allowing disclosure; or
(3) evidence sufficient to survive a hypothetical motion for summary judgment.
Here, Plaintiff seeks to apply the standard requiring the least stringent proof (the good faith standard) and Google has asked the Court to apply the standard requiring the most robust proof (the summary judgment standard).
After comparing the Dendrite standard (approximately what Google was seeking) and other opinions dealing with "good faith" basis for pursuing unmasking (which includes allegations of defamation), the court decides to split the difference -- only in this case it involves a 90/10 split in favor of Beale. It accomplishes this split by deciding Richard Hill's one-star review is commercial speech, which isn't given nearly as much protection as other forms of speech.
Although Brockmeyer is the only South Carolina case on point, it did not go so far as to adopt the standard in Cahill. Cahill, quoted approvingly in Brockmeyer, is instructive; however, it is important to note that the type of speech in Cahill was political speech. In Cahill, the plaintiff was a city councilman and the alleged defamatory comments were posted on a local political website. The type of speech involved in this case is an online business review, which is commercial speech. Courts have held commercial speech should require a less stringent approach than political speech. The Ninth Circuit addressed this issue in In re Anonymous Online Speakers and suggested the standard in Cahill, although potentially appropriate for political speech, does not apply to commercial speech.
But a review of a business isn't commercial speech. It's an expression of opinion, based on a person's subjective experience. A review can be an advertisement for a business (or its competitors), but only in the way any word-of-mouth opinion is. No one sincerely believes word-of-mouth advertising is "commercial speech," with the possible exception of this court. Websites' monetization of customers' reviews doesn't convert opinions into commercial speech. This determination is not just wrong, it's incredibly obtuse.
Based on this bizarre conclusion, the court agrees to compel service providers (Google is one. Charter and Cox are the others being hit with subpoenas.) to turn over identifying info on pseudonymous reviewer Richard Hill.
The court notes it's not at the point where it can discuss the case on its merits -- not without a defendant being served and given a chance to respond. But it's not like it doesn't have that option. That the court is willing to even entertain the notion that a one-star review with zero written statements is libelous is fucking ridiculous. The complaint should have been laughed out of court after a first reading. For the judge to go further and decide a one-star review posted by an anonymous person on a third party site is somehow commercial speech is mind blowing. If this is the state of free speech protection in South Carolina, no wonder Beale's counsel seemed genuinely confused a third party would stand up for a user's anonymity.
Woe be to those who dare one-star a business in South Carolina. Fortunately, the court considers this sort of review to be "political speech."
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Filed Under: anonymity, anonymous speech, defamation, free speech, mark beale, one-star, reviews, south carolina
Companies: google
Reader Comments
The First Word
“https://www.google.com/maps/place/Dr.+Mark+D.+Beale,+MD/@32.7862915,-79.9832517,17z/data=!3m 1!4b1!4m5!3m4!1s0x88fe7bc12bb4e605:0x13b716d73fc6efff!8m2!3d32.786287!4d-79.981063?hl=en-US
That worked well.
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They provided the gun, but you were the one to shoot your own foot with it
Beale claimed this single review, hosted by Google, had irrevocably damaged his livelihood.
No, pretty sure you did that all on your own, the review just provided you an opportunity to do so, and you took it and ran.
A single, wordless one-star review isn't likely to garner much attention or cause people to pay much attention to it.
A psychiatrist flipping their lid over said review enough to go legal on the other hand is the sort of thing people pay attention to, as it demonstrates the kind of person they might have been considering going to to help with their issues, and someone that prone to rash and excessive actions is probably not someone capable of giving good advice to others on how to deal with their own problems.
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https://www.google.com/maps/place/Dr.+Mark+D.+Beale,+MD/@32.7862915,-79.9832517,17z/data=!3m 1!4b1!4m5!3m4!1s0x88fe7bc12bb4e605:0x13b716d73fc6efff!8m2!3d32.786287!4d-79.981063?hl=en-US
That worked well.
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Re: They provided the gun, but you were the one to shoot your own foot with it
I hope this silly twit gets a "full session" of the Streisand Effect!
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Anything more than an IP address, the unreliability of which is often demonstrated by everyone from researchers to copyright trolls?
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Who could possibly have seen THAT coming?
32 of which are wordless, 1-star reviews.
Beale, meet Streisand. Streisand, Beale.
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Re: They provided the gun, but you were the one to shoot your own foot with it
Add to that the very obvious (except to this particular psychiatrist, perhaps?) possibility that a person could have very legitimate reasons to not personally reveal they visited a psychiatrist, let alone had a bad experience with one.
For all the vehemence that this psychiatrist claims to have no patients named "Richard Hill" and so therefore the anonymous review has to be fake, it seems like no one has ever suggested to this guy that someone might not be too eager to post a negative review under their real name.
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Court Says Google Must Unmask Depressed Night Owl With PTSD
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I also tend to get really really really suspicious of anything that doesn't have a 1-star review. I don't care how amazing and wonderful your product is. No ones quality assurance is 100% and even if it was someone would still find something to complain about. (Seen plenty of reviews where it was obvious the moron didn't know how to use product so they gave it 1-star)
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Re:
The 2 and 3 star reviews are also sometimes useful for this purpose, but there are usually very few 2 stars, and the negative parts about 3 and 4 star reviews are often misunderstandings or personal opinions.
But yeah, 5 star reviews are almost always worthless except sometimes in aggregate count when most of them don't look like they've been written by the company themselves (or some one they paid). I'm really suspicious of any review that contains "would recommend to my friends" or "Great service!".
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Forcing people to give a star even for bad service skews the numbers higher than they should be. A useless doctor should get no stars; one that actively harms people, say by suing them, should get a negative number. Few rating systems other than Michelin's get this remotely right.
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So, if I was a lawyer for the defense, I would want to put the plaintiff on the stand, hold up a big poster board with just a big single star on it, and ask, "Which part of this false?".
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Privacy be gone. The requirement to remove a persons anonymity is:
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The article (tangentially) covers this, a couple of ISP's are also being subpoenaed. I'm guessing that they expect to get an IP address from Google and an address from the ISP. Then they'll run into the classic MPAA/RIAA issues.
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Physician, Heal Thyself
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Re:
1/ HIPAA, Not HIPPA
2/ HIPAA would probably be a factor, but it's not a given. There are a few cases where HIPAA wouldn't be in play, legally speaking.
3/ Google does sign Business Associate Agreements with HIPAA Covered Entities, which means there are instances where HIPAA is a factor for Google.
4/ Even if HIPAA isn't in play, there should be a at least one and possibly several licensing/accrediting bodies that are.
5/ HIPAA and 1-star reviews notwithstanding, this guy is going to put himself out of business with his own actions. And deservedly so.
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But if Mr. Hill did not actually defame Dr. Beal then it seems to me that Dr. Beale's false accusation would be defamation, allowing Mr. Hill to sue Dr. Beale for defamation. Countersuit?
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A lawsuit that claims defamation on a wordless one-star review *should* result in sanctions, but if the judge isn't willing to throw it out at this stage, that won't happen.
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that a company wants/gets to decide that a VOTE is defamatory and that a court even remotely buys into their argument means that it really has gone bonkers and threw under the bus the very principles of the democracy and constitution.
allowing this as precedent will open the gates to sue or prosecute anyone just for voting.
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Physician HEAL THY SELF.
Lay down here on the couch Mr. Beale.
Do you feel your mother forcing you into toilet training at 6 months might have lead you to this sort of anal retentive behavior?
Have you retreated into a fantasy land in your mind, where you think uncovering the person behind a 1 star review will make your business skyrocket?
Had you considered that people might look at a professional becoming this unhinged over this review might harm your business more?
Do you understand that even if you get victory it's going to be hollow?
While you might get the single star review scrubbed & terrorize the poor soul to made it... the results for your name online are going to highlight you freaked the fuck out over a single single star review.
I guess you committed deeply to the fantasy of this single star review destroying your business, and now are working to fulfill that fantasy.
Since you've just destroyed working as a doctor, what's your fall back job?
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Taking legal action against a patient who expresses dissatisfaction with the psychiatrist's treatment and trying to expose the patient's identity would seem to be a pretty serious violation of both these duties. Shouldn't the court have referred the case to the medical licensing authorities?
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Shouldn't a court be neutral?
I'd say paid reviews could be classified as commercial speech. Both those paid by the reviewee, as well as those paid by others. This would cover paid shills, competitor's employees whose job it is to post negative reviews, those who received products for free in exchange for a review, maybe those working as reviewers for magazines, etc.
So, from what I see, the court is asserting that Mr. Hill was paid for his (empty) review. Unless Beale asserted that Mr. Hill was paid for that review, this would mean that the court has taken a side and is introducing new theories, unsupported by evidence, on the side of the plaintiff.
TL;DR: If they have proof that Mr. Hill was paid for his speech, maybe it's "commercial speech". If they don't, fuck off.
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Re: They provided the gun, but you were the one to shoot your own foot with it
By attacking this review, he's basically saying he has no professional reputation, nobody who will refer him and nobody wishing to give him a positive detailed review. Even ignoring the silliness of bringing it to a lawsuit to begin with, if he's lost money because of the review it's because he has no other way of attracting patients.
That has to be far more damaging than a wordless review could ever possibly be, and I welcome the continued reign of the Streisand Effect.
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The filing says he was represented by Steven Abrams.
I'm guessing it is this guy across the river.(warning "Cyber") http://www.abramsforensics.com/
That website tells me that the doctor found the perfect firm to represent him.
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Re: They provided the gun, but you were the one to shoot your own foot with it
1 star with nothing? It's junk garbage. Who the F cares. But now this person turned it into a huge deal and showing what a complete a$$ he really is. I sure wouldn't go there now. Not because of the review, but because of the way he's now acting.
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Why hasn't this case been thrown out?
Or is this yet another case of a small town judge trying to bolster his own reputation by going after "the big guys". Hey, look, our local judge is telling Google what to do! Now we have the power, not Google.
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One Star review?
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Bullshit
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