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With online reviews, it pays to know what you’re doing

What would you do if someone called you “a real tool” on Avvo?

Don’t follow in the footsteps of Dr. David McKee, who responded to his negative review by filing a defamation lawsuit, which the Minnesota Supreme Court recently ruled was inactionable. In addition to losing the case, McKee’s action generated negative publicity about the poor review.

If only he had known about online reputation management.

“The spread of social media has touched everyone and every business owner,” said Joe Preston, of Attorney Reputation Management, a Washington-based marketing and public relations firm. “We’ve had clients who’ve been affected by jealous competitors, disgruntled former employees and sometimes, frankly, clients who are unreasonable.”

There are steps attorneys can and should take to protect their reputations, said Preston and intellectual property attorney Scott Scioli, who are co-authoring a book on the topic, scheduled for publication in June.

They recommend you start by claiming your profiles on the various directories and reviewing websites, primarily for search engine optimization purposes. But be strategic. For example, Scioli said he’s on Avvo, LinkedIn and Martindale-Hubbell, but has avoided Yelp because it’s more consumer-law oriented and he typically seeks business clients.

Then, you’ll need to monitor the reviews or comments on those websites, frequently, along with periodically Googling your name and your firm’s name to see what results come up.

Some advise using Google Alerts and similar services to stay on top of new mentions. But you can’t rely on alerts alone, Preston said, because Google has curtailed how often the alerts are sent.

You can be proactive by encouraging happy clients to write positive, truthful reviews. Many websites use algorithms to determine the credibility of posted reviews, and reviews sent from mobile devices often are seen as more likely to be authentic, Preston said.

When someone posts an unflattering review, don’t expect the website to take action. Still, you should bring blatantly false reviews to their attention, such as when you never represented the reviewer. But website owners’ tend to trust their own software’s indicia of authenticity over your word, Preston warned. Once they deem a review authentic, it’s very hard to convince the company to remove it.

More often, it’s better to respond to negative reviews, tactfully and ethically. Be cautious not to reveal any confidential information about the representation.

“I haven’t seen any bar opinions on this yet,” Scioli said, “but it’s absolutely going to happen.”

Reach out to the reviewer, Preston said. Be positive, and ask him or her to call so you can resolve the matter.

As for taking legal action, Scioli advised against it, noting that when you file a defamation lawsuit, it makes the news and keeps the negative information as a top result on Google. Moreover, there can be significant proof issues: Sometimes people use proxies or hire people outside the U.S. to write negative reviews. Then there’s the issue of whether you even can collect the judgment.

“The perception of being the kind of person who sues someone for criticizing you is very negative, and can lead to additional negative feedback about you and your firm,” Scioli said. “You have to be careful about asserting your rights, even when you’re in the right, because sometimes it’s not a question of who’s right, but rather what’s the better strategy.”

And if you really want to be proactive, consider reserving domain names containing your own name and your law firm’s name. For example, I might snap up janepribek.com, janepribek.biz, janepribek.net — and even janepribeksucks.com — before someone else does and posts something negative about me.

A version of this column originally appeared in Wisconsin Law Journal, sister publication to Idaho Business Review.

 

About Jane Pribek

2 comments

  1. [quote] The Star Tribune said it’s a frustrating end for McKee, 51, who said he’s spent at least $50,000 in legal fees and another $11,000 to clear his name online after the story went viral, resulting in hundreds more negative postings about him — likely from people who never met him. He hasn’t ruled out a second lawsuit stemming from those posts.

    “The financial costs are significant, but money is money and five years from now I won’t notice the money I spent on this,” he said. “It’s been the harm to my reputation through the repeated publicity and the stress.” [end quote]

    Although the Minnesota Supreme Court dismissed David McKee MD vs Dennis Laurion, the entire experience has been distressing to my family. We were initially shocked and blindsided by “jocular” comments made so soon after my father’s stroke by somebody who didn’t know us. We were overwhelmed by my being sued after posting a consumer opinion, and we were shocked by the rapidity with which it happened.

    David McKee MD v Dennis Laurion has been the 800 pound gorilla in the room. My parents would be 88-year-old witnesses. My mother and wife prefer no discussion, because they don’t want to think about it. Conversation with my father only reminds him of his anger over this situation. My siblings and children don’t often bring it up, because they don’t know how to say anything helpful. I have been demoralized by three years of being called “Defendant Laurion” in public documents. While being sued for defamation, I have been called a passive aggressive, an oddball, a liar, a coward, a bully, a malicious person, and a zealot family member. I’ve been said to have run a cottage industry vendetta, posting 108 adverse Internet postings in person or through proxies. That’s not correct. In reality, I posted ratings at three consumer rating sites, deleted them, and never rewrote them again.

    The plaintiff’s first contact with me was a letter that said in part that he had the means and motivation to pursue me. The financial impact of being sued three years to date has been burdensome, a game of financial attrition that I haven’t wanted to play. FIVE YEARS FROM NOW, I WILL NOTICE THE MONEY I SPENT ON THIS! David McKee MD v Dennis Laurion cost me the equivalent of two year’s net income – the same as 48 of my car payments plus 48 of my house payments. My family members had to dip into retirement funds to help me.

    After receipt of a threat letter, I deleted my rate-your-doctor site postings and sent confirmation emails to opposing counsel. Since May of 2010, postings on the Internet by others include newspaper accounts of the lawsuit; readers’ remarks about the newspaper accounts; and blog opinion pieces written by doctors, lawyers, public relations professionals, patient advocates, and information technology experts. Dozens of websites by doctors, lawyers, patient advocates, medical students, law schools, consumer advocates, and free speech monitors posted opinions that a doctor or plumber shouldn’t sue the family of a customer for a bad rating. These authors never said they saw my deleted ratings – only the news coverage. Newspaper stories have caused people to call or write me to relate their own medical experiences. I’ve referred them to my lawyers. I’ve also received encouragement from other persons who have been sued over accusations of libel or slander.

    It was not my intention to use any descriptions or conclusions. It was also not my intention to claim that I had proof. Only my family and the doctor were in the room. My intention was to portray my recollection of what happened in my father’s room. The public could decide what to believe and what – if any – impact it had on them: insensitive doctor or overly-sensitive consumer?

    Medical peer newsletters or magazines that interviewed the plaintiff did not approach me. Websites maintained by doctors for doctors or lawyers for lawyers often caused an inference that I was a zealot family member or somebody who had asked about my dad’s chances and then shot the messenger. Generally, however, those websites echoed other websites in advising public relations responses other than a lawsuit – for fear of creating the “Streisand Effect.” As a retired layman, I brought far less resources to the battle of financial attrition.

    I’ve learned that laws about slander and libel do not conform to one’s expectations. I’ve read that online complaints are safe “if you stick to the facts.” That’s exactly the wrong advice. I did not want to merely post my conclusions. I wanted to stick to my recollection of what I’d heard. I don’t like to read generalities like “I’m upset. He did not treat my father well. He was insensitive. He didn’t spend enough time in my opinion.” However, such generalities are excused as opinion, hyperbole, or angry utterances. If one purports to say what happened, factual recitations can be litigated. The plaintiff must prove the facts are willfully misstated, but the defendant can go broke while waiting through the effort.

    I feel that defamation lawsuits are much too easy for wealthy plaintiffs. If I were to attempt suing a doctor for malpractice, my case would not proceed until I’d obtained an affidavit from another doctor, declaring that the defendant’s actions did not conform to established procedures. In a defamation suit, there’s generally no exit short of a judge’s dismissal order – which can be appealed by the plaintiff. Being called “defendant” is terribly personal, but the civil suit path is totally impersonal. During the three years that I went through depositions, interrogatories, a dismissal hearing, an appellate hearing, and a state Supreme Court hearing; I never once spoke to a judge. At depositions, the plaintiff and I sat opposite each other, while I answered his lawyer’s questions, and he answered my lawyer ‘s questions. We were not to speak to each other.

    Minnesota and two other states allow “hip pocket” lawsuits. The plaintiff can start a suit by sending the summons and complaint to the defendant without filing the documents in court. The plaintiff enjoys complete anonymity from public awareness. The defendant has 20 days to respond, but the court is unaware that the suit exists. The plaintiff can conduct interrogatories and depositions while the court is unaware that the suit exists. The plaintiff can send settlement demands to the defendant ‘s insurance company while the court is unaware that the suit exists. Until the suit is actually filed, the plaintiff’s lawyer orchestrates everything as the officer of the court. If the defendant files his answer, in order to publicly get onto the docket and under the supervision of a judge, the defendant pays the filing fee. In Minnesota, if the plaintiff loses his effort at rule by law, the rule of law generally allows the defendant no remuneration. The plaintiff can lose the suit while winning the battle of financial attrition. 

  2. Doctor David McKee, a neurologist with Northland Neurology and Myology, practicing at St. Luke’s Hospital, told the Duluth News Tribune he was disappointed and frustrated. “We need to change the law so someone with a personal vendetta who is going to use the Internet to make defamatory statements can be held responsible,” he said.

    The Star Tribune said it’s a frustrating end for McKee, 51, who said he’s spent at least $50,000 in legal fees and another $11,000 to clear his name online after the story went viral, resulting in hundreds more negative postings about him — likely from people who never met him. He hasn’t ruled out a second lawsuit stemming from those posts.

    “The financial costs are significant, but money is money and five years from now I won’t notice the money I spent on this,” he said. “It’s been the harm to my reputation through the repeated publicity and the stress.”

    McKee’s lawyer, Marshall Tanick, told the Associated Press that he and McKee plan no further appeals and that they were disappointed with the ruling. “We feel it gives individuals undue license to make disparaging and derogatory statements about these people, particularly doctors and other licensed professionals, on the Internet without much recourse,” Tanick said.

    From the American Health Lawyers Association: In this case, the court found the six allegedly defamatory statements were not actionable because the “substance, the gist, the sting” of plaintiff’s version for each of the statements as provided in deposition and defendant’s version essentially carried the same meaning, satisfied the standard for substantial truth, did not show a tendency to harm the plaintiff’s reputation and lower his estimation in the community, or were incapable of conveying a defamatory meaning (e.g., when a nurse told defendant that plaintiff was “a real tool”) based on “how an ordinary person understands the language used in the light of surrounding circumstances.”

    From the Business Insurance Blog: The Minnesota high court said, for instance, that Dr. McKee’s version of his comment about the intensive care unit was substantially similar to Mr. Laurion’s. “In other words, Dr. McKee’s account of what he said would produce the same effect on the mind of the reader,” the court said. “The minor inaccuracies of expression (in the statement) as compared to Dr. McKee’s version of what he said do not give rise to a genuine issue as to falsity.”

    From the Duane Morris Media Blog: The doctor said in his deposition that with regard to finding out if Mr. Laurion was alive or dead, “I made a jocular comment… to the effect of I had looked for [Kenneth Laurion] up there in the intensive care unit and was glad to find that, when he wasn’t there, that he had been moved to a regular hospital bed, because you only go one of two ways when you leave the intensive care unit; you either have improved to the point where you’re someplace like this or you leave because you’ve died.” The court said the differences between the two versions of the statements about death or transfer by both plaintiff and defendant were so minor that there was no falsity in the website postings. In other words, the court indicated that the allegation about the statement was true.

    In reply to an e-patients.net article “Minnesota Supreme Court sides with patient on social media defamation suit,” Attorney Marilyn Mann said, “I think McKee’s lawyer is incorrect. The case turned on standard principles of defamation law and doesn’t really break new ground.”

    Jane Kirtley, a professor of media ethics and law at the University of Minnesota School of Journalism, told the Star Tribune that the ruling stems from “an elementary principle of libel law.” She said that this isn’t a blank check for people to make false factual statements. She said, rather, that it’s “an endorsement that statements of opinion are protected under the First Amendment.”

    According to the Duluth News Tribune, Minnesota Newspaper Association attorney Mark Anfinson, who watched the oral arguments before the Supreme Court in September, said that the justices made the right decision. Anfinson also told the News Tribune, “What this case really exemplifies is not so much legal precepts in libel law, but the impact of the Internet on the ability to publish unflattering comments about people.”

    The Mankato Free Press said in February 2013: “It’s puzzling why McKee’s defamation lawsuit — filed nearly four years ago — was still in court. It’s long been established that people may spout any opinion they want without fear of being sued . . . It’s unsettling that the Appeals Court earlier ruled to allow the suit to continue.”

    In his Technology & Marketing Law Blog, Eric Goldman said on February 4, 2013, “I’ve been tracking doctor v. patient lawsuits for online reviews. . . doctors usually lose or voluntarily drop these lawsuits. Indeed, with surprising frequency, doctors end the lawsuit by writing a check to the defendant for the defendant’s attorneys’ fees where the state has a robust anti-SLAPP law. Doctors and other healthcare professionals thinking of suing over online reviews, take note: you’re likely to lose in court, so legal proceedings should be an absolute last-resort option–and even then, they might not be worth pursuing.”

    Dan Hinmon, the principal of Hive Strategies, wrote for Health Care Communication, on March 21, 2013, “According to the Star Tribune, McKee is now ticked off at the people who posted hundreds more negative comments about him after the story went viral. Incredulously, the story reports that McKee ‘hasn’t ruled out a second lawsuit stemming from these posts.’ Yes, you read that right. After spending ‘at least $50,000 in legal fees and another $11,000 to clear his name online after the story went viral,’ McKee is considering suing the rest of the people who, exercising their right of protected speech, chimed in. I’m speechless.”