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Aug 17, 2017

Only one star, but several legal issues

My August column for the South Carolina Press Association:

A lawsuit by a Charleston psychiatrist over a single star review on Google raises several legal issues regarding standards for the social media era, including issues that apply equally to traditional media.

The lawsuit, filed in March, alleges that the one-star rating libeled Dr. Mark Beale, damaging his personal reputation and harming his psychiatric practice, even though he says that he hasn’t lost any patients. But while it may be true that Dr. Beale’s reputation has declined since the review was posted—an allegation he would have to prove in court if the case were to go to trial—it is less clear whether such a rating can be the basis of a defamation suit at all.

A well-settled principle of defamation law is that, as the U.S. Supreme Court declared in 1974, “under the First Amendment there is no such thing as a false opinion.” But the Court later added in a 1990 case that a statement of opinion could indeed be libelous if it contains “an assertion of objective fact,” something that is “susceptible of being proved true or false.”

Can a one-star Google review actually be libelous? It seems unlikely, no matter if the rating actually damaged Dr. Beale’s business. That is because the rating—which stands on its own, without any accompanying statement explaining or justifying the evaluation—appears to be a statement of the pseudonymous poster’s opinion of Dr. Beale’s services, not a factual assertion that can be proven either true or false.

According to the suit, the one-star review was posted by a user registered with the name Richard Hill. Beale says that he has never treated a patient with that name. Other reviews posted by the same user are for businesses in the vicinity of Newport News, Va. While not specifically accusing any individual of making the post, Beale’s lawsuit notes that Beale’s mother, a retired criminal court judge, does reside in Newport News, and the review was posted after a disagreement between Beale and his step-father over her care.

Under federal law, Google and other websites and online services cannot be held liable for any libelous statements posted by their users, as long as the online providers play no role in creation of the posts. The original poster can be held liable, but in order to successfully sue and recover damages, the identity of the poster must be determined.

So, as part of his lawsuit Beale requested that Google provide information to identify the identity of the reviewer. But the internet giant is resisting, citing court rulings in California and other states upholding anonymity of speech as a right contained within the First Amendment right of free speech. After all, the tradition of anonymous speech dates back to the origins of the republic, when Alexander Hamilton, James Madison and John Jay published pseudonymous articles arguing for ratification of the United States Constitution.

Accordingly, courts that have considered the issue have held that attempts to unmask anonymous speakers must weigh free speech against the alleged need for unveiling the speaker’s identity.

The South Carolina courts have not yet ruled on this issue, although in 2013 the South Carolina Supreme Court upheld a criminal conviction after the trial court declined to allow discovery of the identity of an anonymous poster to a television station’s web site.

The internet and the new forms of communication that it has fostered can present challenges to the First Amendment’s free speech principles. But the fundamental protections for opinion and for anonymous speech endure, and apply equally online as they do in other media.

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