Be Careful of the SLAPP-back

By Laura Spring, Esq.
Thursday, August 18, 2022
Category: 

Pursuing a defamation claim for a negative social media review is a hard road at best.

Laura Spring, Esq.

Laura Spring, Esq.

Social media is ubiquitous. Nearly every organization or business — including medical practices — is being reviewed by customers and patients who can easily and publicly disseminate their point of view across the internet. Sometimes those reviews seem unduly harsh or unjustified, but there are good reasons for medical practices to not launch a legal response.

Different standards govern defamation. Whether the plaintiff is a public or private figure, or the matter is one of public interest, there is generally a high bar to winning a defamation suit in the United States. Courts tend to construe ambiguous or unclear language in favor of the defendant.

There must also be an objectively false statement that can be judged as such for the plaintiff to prevail in a defamation case. A mere statement of opinion is almost certainly not enough. Subjective opinions are almost always going to be considered protected speech, which makes a review on social media difficult to prove as defamation.

Anti-SLAPP Laws Raise the Bar Even Higher

Beyond the robust First Amendment’s protection of speech, which makes winning a defamation suit difficult, many states, including New York, now have anti-SLAPP statutes that further protect speech related to public matters.

SLAPP is an acronym for “strategic lawsuits against public participation,” meaning lawsuits that have little to no legal merit, but are filed anyway in order to intimidate the defendant or inundate them with costs related to legal proceedings. SLAPP suits are a weapon in the arsenal of those with deep pockets who aim to silence opposition.

Initial New York anti-SLAPP statutes focused on speech during public meetings about land use development. In 2020, the anti-SLAPP statute was expanded to include “any communication in a place open to a public or a public forum in connection with an issue of public interest.” The statute tells the courts to interpret “public interest” as broadly as possible.

The Public Forum Expands

Social media is interpreted as a public forum, and court cases have shown that reviews of businesses on social media sites will fall into the category of “public interest.”

One recent case, Aristocrat Plastic Surgery v. Silva, determined the reviews of medical treatment performed by doctors were a matter of public interest and therefore, the negative online reviews were protected speech. Since the court determined the negative review fell under New York’s anti-SLAPP statute, the defendant was subsequently entitled to obtain damages and attorneys’ fees from the doctor who initiated the defamation claim.

The bottom line: Legal responses to negative reviews of businesses are unlikely to succeed. Perhaps more importantly, due to New York’s anti-SLAPP statute, any business owner — including a medical practice — could be on the hook for damages and legal fees if it brings a lawsuit covered by the statute. It is wise to tread carefully when considering a response to a negative review and it is almost certainly not worth bringing a lawsuit against the negative reviewer.


Spring is a partner at ccblaw in Syracuse, New York. She can be reached at lspring@ccblaw.com.