Yes, you can is the quick answer. A few weeks ago, I published a post on the Gazette shooting which involved a newspaper story that sparked the tragic shooting. Fortunately, not all social media reviews of restaurants, doctors, lawyers, and other businesses result in mass shootings. However, there can be consequences to posting a review online.
Here are some examples of the consequences:
• Cleveland physician Bahman Guyuron sued a former patient for defamation for posting negative reviews on Yelp and other sites about her nose job. Guyuron’s attorney Steve Friedman says that although the First Amendment protects patients’ rights to post their opinions, “our position is she did far beyond that (and) deliberately made false factual statements.” A settlement mediation is slated for early August, and a trial is set for late August if no agreement is reached.
• Jazz singer Sherry Petta used her own website and doctor-rating sites to criticize a Scottsdale, Arizona, medical practice over her nasal tip surgery, laser treatment and other procedures. Her doctors, Albert Carlotti and Michelle Cabret-Carlotti, successfully sued for defamation. They won a $12 million jury award that was vacated on appeal. Petta claimed the court judgment forced her to sell a house and file bankruptcy. The parties would not discuss the case and jointly asked for it to be dismissed in 2016 but declined to explain why.
• A Michigan hospital sued an elderly patient’s two daughters and a granddaughter over a Facebook post and for picketing in front of the hospital they said mistreated the late Eleanor Pound. The operator of Kalkaska Memorial Health Center sued Aliza Morse, Carol Pound and Diane Pound for defamation, tortious interference and invasion of privacy.
So, there can be consequences to social media postings in spite of our First Amendment that safeguards free speech. An important factor in these types of cases involves whether what was written in the review was truthful. If it was indeed true, regardless of the negative character of the review, the one who posts is free from civil liability.
However, many social media reviews involve opinion rather than fact. This becomes a bit murkier. Attorney David Goguen, an expert in this practice area and an editor for Nolo writes, “The U.S. Supreme Court has said that a statement is an opinion that merits protection when it is (1) about a matter of public concern, (2) expressed in a way that makes it hard to prove whether it is true or false, and (3) can’t be reasonably interpreted to be a factual statement about someone. (The Supreme Court case is Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990).)
To apply this test, courts usually consider several factors, such as the manner in which the statement was made.
- Did the speaker use figurative or hyperbolic language, making it hard to view the statement as an expression of fact?
- If the statement is in a written piece or article, what was its overall context?
- Would the context make it hard for a reader to think the writer was conveying a fact?
Consider political cartoons. These appear in newspapers all the time and are often highly critical of the subjects they depict. But they are also opinions that are intended to be humorous, and anyone reading a political cartoon is probably going to know that the writer/artist did not mean to express a fact.
Finally, courts will look at whether the statement is factual enough that it can be proven true or false. If it cannot be proven either true or false, it probably will be deemed an opinion and will not be actionable via a defamation claim. However, laws vary from one jurisdiction to another, and there are some jurisdictions that don’t draw a real distinction between fact and opinion in these kinds of cases.”
Before you choose to post a negative review of someone or some business, make sure you are making factual statements that can be proven. Also, multiple reviews concerning the same subject or person lend weight to the notion that such behavior is harassing or defamatory. It’s better to avoid that scenario.