We've seen lots of folks freak out when a bad Yelp review gets left about their service, but some people take it to extremes. Over at Popehat there's an example of a dentist, William Coppola, in San Antonio, Texas, who had a lawyer, Isabel de la Riva, send an absolutely ridiculous legal threat letter
to a Yelp user named Jen B, who had left the following negative review of Dr. Coppola on Yelp:
I would never recommend this place to anyone. It is nice and clean. But the people are very pushy. I feel like they are doing more dental work than required. I went with a referral from a general dentist and they only spoke down to me about him, my child and came up with about 7 other teeth that had "issues" etc. They are seriously just out there for the money. Funny how when I went to a different dentist for another opinion they sided with MY dentist!!! DO NOT GO HERE.
Definitely harsh. Of course, there are a variety of different ways Dr. Coppola could have responded. He chose perhaps the worst: his lawyer didn't just threaten Jen B with highly questionable civil charges, but flat out ridiculous and bogus criminal
charges as well. de la Riva first made some claims that were quite unbelievable, that she had somehow been able to get Jen B's medical records from another dentist -- which, if true, would violate all sorts of medical privacy rules:
Your willfully false and defamatory comments including that my client is "just out there for the money" are false. Our initial investigation shows that your review was written PRIOR to even seeing another dentist for a second opinion; and that when you did receive that second opinion at a later date, the diagnosis you received was the same or extremely similar to the one you received from Dr. Coppola. Please note that your post to encourage individuals on the internet to "not go here" is actionable. There are numerous lawsuits regarding these types of issues, and the Courts have found that in actions where misinformation is provided, there is serious financial exposure for each and every one of the defamatory comments you have made. If our investigation shows that your actions have resulted in damages to our client and its several locations in Texas, we will pursue legal action against you.
And while it's true that there are some (perhaps "numerous") lawsuits "regarding these types of issues," notice that de la Riva left out how nearly all of them end: with the service provider looking ridiculous after losing the lawsuit and getting a lot more
negative attention for threatening to sue a customer for leaving bad feedback.
But, that wasn't the worst. There was the escalation into suggestion that such a review was a criminal
issue, which is clearly bogus:
You are hereby on notice that if you fail to retract your libelous post on yelp.com that we will recommend to our client that he pursue legal action against you. Dr. Coppola has already consulted with the authorities regarding criminal charges and the Guadalupe District Attorney's Office stated that placing intentional false information on the internet can result in a felony charge of internet business defamation and libel. Although we have encouraged our client to pursue this avenue, he has not done so, mostly in deference to the military service of your husband. Dr. Coppola is a staunch supporter of the military and offers military discounts to his patients, such as yourself. However, he understands that if this matter is not rectified, that he must pursue all options at his disposal to protect his reputation of 33 years of exemplary service to his patients.
As Ken White points out, Texas repealed its criminal libel law in 1974. Also, just recently Texas passed what is probably the strongest anti-SLAPP law in the country, even better than the one in California. While de la Riva's letter initially worked in stifling Jen B's speech -- scaring her into pulling the review -- after White connected her with Leif Olson, a lawyer in Texas who was willing to help her out pro bono, things are looking up. Olson sent de la Riva and Coppola quite the epic reply
. He notes that Jen B's post was clearly not legally actionable, but the threat letter from Coppola and de la Riva in response is legally actionable
under Texas' anti-SLAPP law. Regarding the "investigation," Olson pointed out:
Your "initial investigation" has led you to facts that are wrong. Your letter
stated that the "investigation" led you to the substance and timing of young
Miss B's post-Coppola dental diagnosis and work. Northeast Children's
doesn't need information about services young Miss B received from other
dentists to secure whatever payment it might still be owed, and I assume that
you and he aren't violating HIPAA and its regulations by getting access to
young Miss B's medical records without her consent. This leads me to suspect
that your "investigation" involved (1) conversations with an insurer that called
to ask after possible double-billing after seeing claims from both Dr. Coppola
and the dentist whom Jen B trusted to the dental work and (2) a search on
Yelp, and possibly other review websites, for other reviews of dentists that Jen B
left. This isn't the diligence required before one begins slinging accusations
Regarding the actual suggestion that anything Jen B wrote was defamatory:
A statement isn't defamatory unless it's false, and a statement that is
"substantially true" isn't false. Nor is does "substantial truth" depends on how
many nits Dr. Coppola thinks he can pick from Jen B's statement. A court
evaluating whether Dr. Coppola is "just in in for the money" or the any of Jen
B's other statements in the review will look to the "gist" of the statement in its
complete context and whether a fully truthful statement would have been less
damaging to an average reader than what Jen actually said. See McIlvain v.
Jacobs, 794 S.W.2d 14, 15-16 (Tex. 1990). This is the test whether Dr. Coppola
is a public figure or not. See Garcia V. Allen, 28 S.W.3d 587, 593-94 (Tex. App.
-- Corpus Christi 2000, pet. denied) (applying test to non-public figure). It
applies in business-disparagement cases like the one Dr. Coppola is
threatening. See, e.g., Delta Air Lines, Inc. v. Norris, 949 S.W.2d 422, 426 (Tex.
App. -- Waco 1997, writ denied).
Similarly, "[a]ll assertions of opinion are protected by the first amendment
of the United States Constitution and article I, section 8 of the Texas
Constitution." Carr v. Brasher, 776 S.W.2d 567, 570 (Tex. 1989). Hyperbole
isn't defamation, either; according to the Supreme Court, rhetorical hyperbole
"add[s] much to the discourse of our Nation." Milkovich v. Lorain Journal
Co., 497 U.S. 1, 20 (1990); see also New Times, Inc. v. Isaacks, 146 S.W.3d 144,
167 (Tex. 2004). The San Antonio Court of Appeals, whose rulings bind the
courts in both Bexar and Guadalupe Counties, has bluntly held that
"rhetorical hyperbole and opinion are not actionable under Texas law." ABC,
Inc. v. Gill, 6 S.W.3d 19, 32 (Tex. App. -- San Antonio 1999, pet. denied).
The review isn't defamatory.
Nothing in Jen B's review is defamatory under these standards--certainly
not the two things that Dr. Coppola has identified.
Protected opinion: The review, in its parts and in its whole, is protected
opinion. That is clear from the language Jen B used. She "feel[s]" that Dr.
Coppola is doing too much work. Different people will have different
perceptions of whether they are "speaking down to" someone about another
professional or the person's child. That one dentist "sided" with a family
dentist's recommendations rather than Coppola's recommendations depends
on a person's comparison of the three recommendations.
Jen didn't express "opinions" that would lead a reasonable person to
think that an untrue fact was true--as would have been the case, for instance,
had she posted, feel it's inappropriate for Dr. Coppola to keep all of that
Hungarian erotica in the waiting room." Nor did she post false statements of
fact, as would have been the case had she written something like, "While I was
there, Dr. Coppola waggled his wiggler at the wide women who walked west
weirdly." Her statements are classic expressions of opinion with which Dr.
Coppola may disagree, but which he cannot suppress.
Hungarian erotica? There's also a discussion on why hyperbole and rhetoric are protected. It's much longer, but I have to call out this gem:
Had she written, "If Dr. Coppola's grasp of
dentistry is anything like his grasp of the First Amendment, it's no wonder
that all of his patients need dentures," no reasonable person would think that
every child who goes to Northeast Children's Dentistry needs false teeth.
Exaggerating for effect has a long, protected tradition in the United States;
statements much more offensive than an accusation of greed are, as a matter of
law, not defamatory.
Bravo, Mr. Olson. As for the anti-SLAPP law, Olson explains:
Dr. Coppola has no claim for business disparagement or defamation. Nor,
despite what your artfully crafted language about conversations with the
district attorney begged Jen B to infer, is there any basis to charge her with a
crime. (Indeed, Texas repealed its criminal libel statute 50 years ago. Acts 1973,
63rd Legislature, Chapter 399, Section 3.) But letters from lawyers are scary
things; had she not been able to hire me, Jen B might not have known that she
faces no true consequences from Dr. Coppola's threat other than a waste of
her time. I trust that after you share this letter with Dr. Coppola, he will
realize that, too.
Through his threat, and any possible follow-up he might pursue, however,
Dr. Coppola has created some problems for himself. First, the lawsuit he
threatens would Violate the Texas Citizens Participation Act, our version of an anti-SLAPP
law. Tex. Civ. Prac. & Rem. Code ch. 27. Jen B's review is a
communication; she made it as part of her exercise of her liberty of free
speech; and it is about a matter of public concern, the dental services that Dr.
Coppola and Northeast Children's are furnishing in the marketplace. The
theoretical lawsuit would, unquestionably, be based on Jen B's posting of the
review--her exercise of her freedom to speak. Jen B would get an expedited
hearing and ruling on her request to dismiss Dr. Coppola's theoretical lawsuit.
And once that theoretical case is dismissed, Jen B would be entitled to recover
her legal fees--which are, I assure you, despite the eye-popping effect they
sometimes generate, reasonable.
Too, Dr. Coppola now knows that there is no legal basis for his threats.
Any lawsuit he files could be only for harassment, to impose costs upon Jen B,
or to punish her for exercising her liberties, all of which are improper bases.
He would, that is, be using the lawsuit as a form of extortion--using it to
achieve an ulterior end that a defamation claim isn't meant to achieve. The
same would go for any criminal case that Dr. Coppola might connive the
district attorney into bringing. This would make Dr. Coppola liable for
malicious prosecution, the damages for which would be whatever other legal
fees Jen hadn't recovered in getting Dr. Coppola's claims dismissed. See
James v. Brown, 637 S.W.2d 914, 918 (Tex. 1982) (elements); Digby v. Texas
Bank, 943 S.W.2d 914, 925-26 (Tex. App. -- El Paso 1997, writ denied).
Jen B, however, doesn't have to wait for Dr. Coppola to do anything. Dr.
Coppola's threats have brought into question Jen B's rights and legal relations
between her and Dr. Coppola, and Jen B is entitled to have the question of
those rights and relations settled through a declaratory judgment. Tex. Civ.
Prac. & Rem. Code ch. 37. Because she's entitled to such a declaration, she can
seek it without waiting to see if Dr. Coppola acts on his threat. And because
she's entitled to that declaration on a claim that would entitle her to fees,
she'll also be entitled to recover the fees she incurs seeking that declaration.
Leif Olson is also, obviously, well aware of how Dr. Coppola's bogus threats may generate much more negative attention towards his practice, and suggested in his letter that Coppola take a quick crash course on abusing the law to seek to censor someone:
Perhaps most crippling for Dr. Coppola, who purports to be jealous of his
reputation, is the fact that he hired someone to write that threat letter at all.
Before he did so, someone--perhaps while you were conducting your
"investigation"--should have asked him if he has ever heard of Barbra
Streisand's beach house. Someone even could have told him of the results that
arise when someone runs the names Charles Carreon, Suburban Express,
Bharat Aggarwal, or Thedala Magee through a search engine. Jen B's Yelp
review, needless to say, still exists--as does Jen B's ability to digitize Dr.
Coppola's threat letter. Jen B posted her Yelp review to inform people that she
thought Dr. Coppola pushy and concerned about money; one can only
imagine her growing excitement at being able to bolster that opinion with a
bullying letter that demands money.
Of course, rather than actually file an anti-SLAPP claim, as would be Jen B's clear right as described above, Olson simply asked that Dr. Coppola promise not to pursue any claims against her, along with a handwritten (by Dr. Coppola) apology letter.
There's more in that letter as well, but bravo to Olson for a fantastic letter, and yet another set of kudos to Ken White for successfully making use of the Popehat Signal
to bring Olson and Jen B together to protect free speech yet again.