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.”