Lawsuit Against Online Reviewer Deemed Anti-SLAPP Suit

The patient of a plastic surgeon posted negative reviews on multiple review sites. The doctor filed suit, alleging a number of claims. The poster moved to dismiss and sought damages under what is commonly called New York’s anti-SLAPP law. Before agreeing, the First Department provided some background to this law:

SLAPP suits—strategic lawsuits against public participation—[ ] are characterized as having little legal merit but are filed nonetheless to burden opponents with legal defense costs and the threat of liability and to discourage those who might wish to speak out in the future (600 W. 115th St. Corp. v Von Gutfeld, 80 NY2d 130, 137 n 1 [1992], cert denied 508 US 910 [1993]). In 1992, as a response to rising concern about the use of civil litigation, primarily defamation suits, to intimidate or silence those who speak out at public meetings against proposed land use development and other activities requiring approval of public boards, New York enacted legislation aimed at broadening the protection of citizens facing litigation arising from their public petition and participation. The New York anti-SLAPP statute initially limited its application to instances where speech was aimed toward “a public applicant or permittee,” i.e. an individual who applied for a permit, zoning change, lease, license, or other similar document from a government body (L 1992, ch 767, § 3). As applied, the statute was “strictly limited to cases initiated by persons or business entities [ ] embroiled in controversies over a public application or permit, usually in a real estate development situation” (Sponsor’s Mem, Bill Jacket, L 2020, ch 250).

In 2020, the legislature amended New York’s anti-SLAPP statute to “broaden the scope of the law and afford greater protections to citizens” beyond suits arising from applications to the government (Mable Assets, LLC v Rachmanov, 192 AD3d 998, 1000 [2d Dept 2021], citing L 2020, ch 250). Among other changes, Civil Rights Law § 76-a was amended to expand the definition of an “action involving public petition and participation” to include claims based upon “any communication in a place open to the public or a public forum in connection with an issue of public interest” (Civil Rights Law § 76-a[1][a][1]). The amended law further provides that “public interest” “shall be construed broadly, and shall mean any subject other than a purely private matter” (Civil Rights Law § 76-a[1][d]). Additionally, Civil Rights Law § 70-a was amended to mandate, rather than merely permit, the recovery of costs and attorneys’ fees upon demonstration “that the action involving public petition and participation was commenced or continued without a substantial basis in fact and law and could not be supported by a substantial argument for extension, modification or reversal of existing law” (Civil Rights Law § 70-a[1][a]).

The poster argued that her posts were protected speech, which the doctor was trying to bully her into removing, while the doctor argued that his lawsuit was a private matter and not a matter of public interest.

Finding that the “dispositive” issue was whether the reviews were made in connection with a public or private natter, the First Department looked to define “public concerns” or “public interests” as applied to anti-SLAPP suits, finding that even concerns that do not reach the “general population” can be matters of public concern. The court undertook an extensive discussion of how to address the reviews, looking at law in New York and other States. The court concluded with

In the present case, defendant posted her reviews on two public internet forums, one of which has a stated purpose of being a key advisor for people considering plastic surgery, and the purpose of defendant’s reviews was to provide information to potential patients, including reasons not to book an appointment with Dr. Tehrani. Defendant’s posts concerning the plastic surgery performed upon her by Dr. Tehrani qualify as an exercise of her constitutional right of free speech and a comment on a matter of legitimate public concern and public interest – namely, medical treatment rendered by a physician’s professional corporation and the physician performing surgery under its auspices (see e.g. Coleman, 523 F.Supp.3d at 259; Mirza, 513 F.Supp.3d at 300). We therefore find that defendant’s negative website reviews of plaintiffs’ services constitute a matter of “public interest” as set forth in Civil Rights Law § 76-a(1)(d).

In addition to suing a poster and bringing more attention to that post, that plaintiff may now be liable for attorneys’ fees and costs.

Aristocrat Plastic Surgery, P.C. v. Silva