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."


Reader Comments

The First Word

Subscribe: RSS

View by: Time | Thread


  • icon
    That One Guy (profile), 11 Dec 2017 @ 11:06am

    They provided the gun, but you were the one to shoot your own foot with it

    Beale claimed this single review, hosted by Google, had irrevocably damaged his livelihood.

    No, pretty sure you did that all on your own, the review just provided you an opportunity to do so, and you took it and ran.

    A single, wordless one-star review isn't likely to garner much attention or cause people to pay much attention to it.

    A psychiatrist flipping their lid over said review enough to go legal on the other hand is the sort of thing people pay attention to, as it demonstrates the kind of person they might have been considering going to to help with their issues, and someone that prone to rash and excessive actions is probably not someone capable of giving good advice to others on how to deal with their own problems.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Dec 2017 @ 11:14am

      Re: They provided the gun, but you were the one to shoot your own foot with it

      bing the fucking O

      I hope this silly twit gets a "full session" of the Streisand Effect!

      reply to this | link to this | view in chronology ]

    • identicon
      Jason, 11 Dec 2017 @ 11:37am

      Re: They provided the gun, but you were the one to shoot your own foot with it

      Add to that the very obvious (except to this particular psychiatrist, perhaps?) possibility that a person could have very legitimate reasons to not personally reveal they visited a psychiatrist, let alone had a bad experience with one.

      For all the vehemence that this psychiatrist claims to have no patients named "Richard Hill" and so therefore the anonymous review has to be fake, it seems like no one has ever suggested to this guy that someone might not be too eager to post a negative review under their real name.

      reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 12 Dec 2017 @ 1:24am

      Re: They provided the gun, but you were the one to shoot your own foot with it

      I'm trying to think of a situation where you would choose a psychiatrist solely on the basis of a single wordless rating, and not more informative reviews, professional reputation, personal referrals, or literally any other factor. I can't think of one, other than there not being any other factor upon which to make the decision.

      By attacking this review, he's basically saying he has no professional reputation, nobody who will refer him and nobody wishing to give him a positive detailed review. Even ignoring the silliness of bringing it to a lawsuit to begin with, if he's lost money because of the review it's because he has no other way of attracting patients.

      That has to be far more damaging than a wordless review could ever possibly be, and I welcome the continued reign of the Streisand Effect.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 Dec 2017 @ 9:14am

      Re: They provided the gun, but you were the one to shoot your own foot with it

      I like reading low review scores and the reason for them, which is generally pretty dumb. Like I was reading a review for a bare HDD on Amazon, and the person gave it 2 stars because it didn't come with screws. It didn't say it would come with screws. In fact, no bare HDD's I've ever gotten in years have ever come with screws. Sometimes in Retail packaging, it may come with screws. But a bare drive online, No. So it was just a dumb review.

      1 star with nothing? It's junk garbage. Who the F cares. But now this person turned it into a huge deal and showing what a complete a$$ he really is. I sure wouldn't go there now. Not because of the review, but because of the way he's now acting.

      reply to this | link to this | view in chronology ]

  • icon
    firebird2110 (profile), 11 Dec 2017 @ 11:07am

    Mark Beale has done far more to damage his reputation by bringing this action than a worldless one star review could ever manage. He comes across as petty and more than a little bit paranoid and unhinged, not attributes you'd want in a psychiatrist!

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 11 Dec 2017 @ 11:23am

      Who could possibly have seen THAT coming?

      32 of which are wordless, 1-star reviews.

      Beale, meet Streisand. Streisand, Beale.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Dec 2017 @ 12:12pm

      Re:

      I wonder if the law office next door has anything to do with this...

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Dec 2017 @ 12:52pm

      Re:

      Forcing people to give a star even for bad service skews the numbers higher than they should be. A useless doctor should get no stars; one that actively harms people, say by suing them, should get a negative number. Few rating systems other than Michelin's get this remotely right.

      reply to this | link to this | view in chronology ]

  • icon
    Roger Strong (profile), 11 Dec 2017 @ 11:20am

    Given that one can create a largely anonymous Google account, and given that this review was created with a name Beale declares "obviously a pseudonym", will Google have *any* reliable information?

    Anything more than an IP address, the unreliability of which is often demonstrated by everyone from researchers to copyright trolls?

    reply to this | link to this | view in chronology ]

    • icon
      R.H. (profile), 11 Dec 2017 @ 2:46pm

      Re:

      The article (tangentially) covers this, a couple of ISP's are also being subpoenaed. I'm guessing that they expect to get an IP address from Google and an address from the ISP. Then they'll run into the classic MPAA/RIAA issues.

      reply to this | link to this | view in chronology ]

  • icon
    Chris ODonnell (profile), 11 Dec 2017 @ 11:26am

    The most surprising thing about this is that Tim didn't use the word Streisand anywhere in his post.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Dec 2017 @ 11:46am

    If the person had actually went to this (in my opinion) douchebag, now we are talking HIPPA. Google isn't a covered entity, but if the doctor publicizes the fact that this person actually did visit him in a professional capacity, that would violate HIPPA laws.

    reply to this | link to this | view in chronology ]

    • icon
      sigalrm (profile), 11 Dec 2017 @ 4:22pm

      Re:

      Google isn't a covered entity, but if the doctor publicizes the fact that this person actually did visit him in a professional capacity, that would violate HIPPA laws.

      1/ HIPAA, Not HIPPA

      2/ HIPAA would probably be a factor, but it's not a given. There are a few cases where HIPAA wouldn't be in play, legally speaking.

      3/ Google does sign Business Associate Agreements with HIPAA Covered Entities, which means there are instances where HIPAA is a factor for Google.

      4/ Even if HIPAA isn't in play, there should be a at least one and possibly several licensing/accrediting bodies that are.

      5/ HIPAA and 1-star reviews notwithstanding, this guy is going to put himself out of business with his own actions. And deservedly so.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Dec 2017 @ 8:45pm

      Re:

      There's another aspect as well, that I think is widely ignored. Defamation is a crime, which is why it's actionable. So if "Mr. Hill" has actually defamed Dr. Beale, that's perhaps one thing.

      But if Mr. Hill did not actually defame Dr. Beal then it seems to me that Dr. Beale's false accusation would be defamation, allowing Mr. Hill to sue Dr. Beale for defamation. Countersuit?

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 11 Dec 2017 @ 10:01pm

        Re: Re:

        Litigation privilege applies. You can't file a defamation suit because someone filed a false lawsuit against you. If there are false facts (as opposed to just bad legal arguments) in the lawsuit, perjury could also come into play.

        A lawsuit that claims defamation on a wordless one-star review *should* result in sanctions, but if the judge isn't willing to throw it out at this stage, that won't happen.

        reply to this | link to this | view in chronology ]

  • icon
    Roger Strong (profile), 11 Dec 2017 @ 11:47am

    Court Says Google Must Unmask Depressed Night Owl With PTSD

    Psychiatrist claims defamation over one-star review, says he never had a patient named "Batman."

    reply to this | link to this | view in chronology ]

  • icon
    PlagueSD (profile), 11 Dec 2017 @ 11:48am

    Not sure about the rest of you, but when I look at company/product reviews, I always throw out 5-star(paid reviews) and 1-star(most likely disgruntled customers) when looking up businesses.

    reply to this | link to this | view in chronology ]

    • identicon
      Machin Shin, 11 Dec 2017 @ 12:20pm

      Re:

      I actually tend to read the 5-star reviews and then the 1-star reviews and use that to make the decision. Lots of times that gives you the good and the bad.

      I also tend to get really really really suspicious of anything that doesn't have a 1-star review. I don't care how amazing and wonderful your product is. No ones quality assurance is 100% and even if it was someone would still find something to complain about. (Seen plenty of reviews where it was obvious the moron didn't know how to use product so they gave it 1-star)

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 11 Dec 2017 @ 1:29pm

        Re: Re:

        That is exactly how I research it as well. Don't see a point reading the average reviews. It is the extremes that I am interested in. Mainly those that had to deal with the company's support line or something in that nature. To many people that rate it 1 star just don't know how to use it or used it wrong and can't send it back because they broke it. I don't read the short 5 star reviews as I suspect those are junk but I do read the ones that people have put thought into.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Dec 2017 @ 12:49pm

      Re:

      I read the 1 star reviews for trends. If there's a bunch of 1 star reviews all with unique problems that no one else seems to be having, I figure it's probably just them being dumb or very unlucky. But if there are a dozen 1-stars all with the same problem, it's probably something to be concerned about.

      The 2 and 3 star reviews are also sometimes useful for this purpose, but there are usually very few 2 stars, and the negative parts about 3 and 4 star reviews are often misunderstandings or personal opinions.

      But yeah, 5 star reviews are almost always worthless except sometimes in aggregate count when most of them don't look like they've been written by the company themselves (or some one they paid). I'm really suspicious of any review that contains "would recommend to my friends" or "Great service!".

      reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 12 Dec 2017 @ 1:29am

      Re:

      I'll take them into account if they're accompanied with reasonable-sounding explanations for the rating. I'll never take that much notice of those without a reasoning, not least because my experience with places like Amazon suggests some people just don't know how star ratings work (I've seen glowing reviews with a one star rating and vice versa)

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Dec 2017 @ 12:53pm

    If a one star review can be considered defamatory, then some part of it must be a demonstrably false statement of fact.

    So, if I was a lawyer for the defense, I would want to put the plaintiff on the stand, hold up a big poster board with just a big single star on it, and ask, "Which part of this false?".

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Dec 2017 @ 12:54pm

    I tend to not even bother with yelp reviews, based upon their well established reputation in this area.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Dec 2017 @ 1:08pm

    I always forget the distinction. Can a Psychologist call this lawsuit crazy or should it be referred to a Psychiatrist?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Dec 2017 @ 2:42pm

    Privacy be gone. The requirement to remove a persons anonymity is:

    well... apparently nothing.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Dec 2017 @ 2:43pm

    "Marc D.BEALE" - in my (non-commercial) opinion that name says everything you need to know.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Dec 2017 @ 3:21pm

    Physician, Heal Thyself

    The kinds of arguments Beale and his attorney make suggest that both need the services of a good psychiatrist. The judge in the case could also benefit with some professional psychiatric care. Can't really recommend Dr. Beale - he's gotten some very poor online reviews.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Dec 2017 @ 10:26pm

    wordless review = a VOTE, the basic element for expression of opinion in a democracy

    that a company wants/gets to decide that a VOTE is defamatory and that a court even remotely buys into their argument means that it really has gone bonkers and threw under the bus the very principles of the democracy and constitution.

    allowing this as precedent will open the gates to sue or prosecute anyone just for voting.

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 11 Dec 2017 @ 10:57pm

    Perhaps if he put in as much effort treating his patients as he did policing his internet reputation, he wouldn't have gotten a 1 star review.

    Physician HEAL THY SELF.
    Lay down here on the couch Mr. Beale.
    Do you feel your mother forcing you into toilet training at 6 months might have lead you to this sort of anal retentive behavior?
    Have you retreated into a fantasy land in your mind, where you think uncovering the person behind a 1 star review will make your business skyrocket?
    Had you considered that people might look at a professional becoming this unhinged over this review might harm your business more?
    Do you understand that even if you get victory it's going to be hollow?
    While you might get the single star review scrubbed & terrorize the poor soul to made it... the results for your name online are going to highlight you freaked the fuck out over a single single star review.
    I guess you committed deeply to the fantasy of this single star review destroying your business, and now are working to fulfill that fantasy.

    Since you've just destroyed working as a doctor, what's your fall back job?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Dec 2017 @ 11:12pm

    Doesn't a psychiatrist have a duty to maintain patient confidentiality? As well as a duty to work for the well being of his patients? Maybe not in South Carolina?

    Taking legal action against a patient who expresses dissatisfaction with the psychiatrist's treatment and trying to expose the patient's identity would seem to be a pretty serious violation of both these duties. Shouldn't the court have referred the case to the medical licensing authorities?

    reply to this | link to this | view in chronology ]

  • identicon
    ryuugami, 12 Dec 2017 @ 12:45am

    Shouldn't a court be neutral?

    But a review of a business isn't commercial speech. It's an expression of opinion, based on a person's subjective experience.

    I'd say paid reviews could be classified as commercial speech. Both those paid by the reviewee, as well as those paid by others. This would cover paid shills, competitor's employees whose job it is to post negative reviews, those who received products for free in exchange for a review, maybe those working as reviewers for magazines, etc.

    So, from what I see, the court is asserting that Mr. Hill was paid for his (empty) review. Unless Beale asserted that Mr. Hill was paid for that review, this would mean that the court has taken a side and is introducing new theories, unsupported by evidence, on the side of the plaintiff.

    TL;DR: If they have proof that Mr. Hill was paid for his speech, maybe it's "commercial speech". If they don't, fuck off.

    reply to this | link to this | view in chronology ]

  • identicon
    Digitari, 12 Dec 2017 @ 5:03am

    one star

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Dec 2017 @ 10:19am

    It just looks like my rating of Dunkirk (2017) movie.

    reply to this | link to this | view in chronology ]

  • icon
    John85851 (profile), 12 Dec 2017 @ 10:22am

    Why hasn't this case been thrown out?

    Changing the subject slightly: just why hasn't this case been thrown out? Have Beale's lawyers really convinced the judge that this anonymous review has caused harm?

    Or is this yet another case of a small town judge trying to bolster his own reputation by going after "the big guys". Hey, look, our local judge is telling Google what to do! Now we have the power, not Google.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Dec 2017 @ 2:46pm

    One Star review?

    Maybe "Richard Hill" lives in Texas.

    reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Use markdown for basic formatting. HTML is no longer supported.
  Save me a cookie
Follow Techdirt
Special Affiliate Offer

Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

This feature is only available to registered users. Register or sign in to use it.