The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
UPDATE: The ostensible plaintiff now says case was filed (and the $185 filing fee paid) without his knowledge or permission; see this post for more.
Paul Alan Levy (Public Citizen) has a post about a business trying to suppress consumer criticism in an unusual way:
Matthew Chan, a resident of Columbus, Georgia, posted a series of reviews (for example, on Yelp) complaining that Mitul Patel, a dentist in Suwannee, Georgia, had induced Chan to visit his office by advertising an inexpensive dental cleaning deal. However, Chan reported that he was confronted with a hard pitch for additional, more expensive services, and Patel allegedly lost interest in providing the cleaning when Chan was not agreeable to buying additional services. I am in no position to say whether Chan's criticisms of Patel are fair or accurate, but Patel's sneaky response to the criticism, instead of just suing his detractor in the Georgia courts, tends to suggest that Chan might well have reason to complain….
[I]nstead of suing Chan in Georgia, Patel filed in the circuit court for the city of Baltimore, Maryland, a court that would ordinarily have no personal jurisdiction over a Georgia consumer sued for criticizing a Georgia dentist. Patel justified suing there by identifying "Mathew Chan" as the defendant—note that the spelling of the given name is slightly different—and alleging that this Mathew Chan "maintains a primary residence located in Baltimore, Maryland."
Patel accompanied his complaint with a document asserting that he and Mathew Chan both settled the case, and agreed to a proposed consent order removing the documents, and Baltimore Judge Philip Senan Jackson signed the order.
Levy goes on:
I tried to reach Patel to ask for his explanation of what and where he filed. I wanted to find out why he believed (if he really believed) that someone supposedly living in Baltimore, with a slightly different first name, was his former patient from Georgia? … Patel never responded to my inquiries.
The judgment declares that reviews posted on five separate web sites are false and defamatory, and orders the "Defendant" to remove them. But at the same time, the judgment anticipates that the defendant might not remove the reviews; it directs Patel to submit the order to the five hosting web sites as well as to "any other Internet search engine" so that the comment can be removed "from their web page pursuant to their existing policies concerning the delisting of defamatory material." …
It was only at this point that the real Matthew Chan—the actual author of the negative reviews—learned of the proceedings, when Yelp notified him of the receipt of the court order and indicated that it would take his review down absent a persuasive response.
And it turned out that Matthew Chan had some experience with attempts to restrict speech online—he was the successful defendant in the Chan v. Ellis Georgia Supreme Court case, which I blogged about (and which I co-argued as counsel for amici). Chan wasn't going to take this lying down, so he tracked down the Baltimore court documents, and explained to Yelp that, though the posts were his, the court order wasn't issued against him.
To Yelp's credit, Yelp listened to Chan's explanation of what had happened, and left the review posted. Indeed, Patel's Yelp page has a prominent note on it from Yelp saying,
Consumer Alert: Questionable Legal Threats
This business may be trying to abuse the legal system in an effort to stifle free speech, including issuing questionable legal threats against reviewers. As a reminder, reviewers who share their experiences have a First Amendment right to express their opinions on Yelp.
Levy notes that HealthGrades.com and Kudzu.com apparently took down the review without even letting the real Chan know about it, and opines (paragraph breaks added):
Under [the federal statute 47 U.S.C. § 230], the hosts of consumer comment have every right to make their own policies about how to respond when there are judicial proceedings over their users reviews. If suit against the user is successful, they are entitled to leave the reviews posted; they can empower the users to decide whether the reviews remain online; or they can effect the removal unilaterally.
But you would think that the responsible host would, at the very least, notify a user when it is considering whether to remove that user's review, and give the user a chance to respond. That neither HealthGrades nor Kudzu gave notice to Chan before taking down his review does not speak well of them. We can still hope that they reverse their knee-jerk removal decisions now they have have been told about how that they were victimized by this sort of maneuvering, thus showing their commitment to the consumers whose reviews they solicit and to presenting a fair balance of reviews to all consumers.
UPDATE: Michael Smith, who has helped me on many cases, writes:
As a free-speech enthusiast, I'm appalled.
As a Mike Smith however, I see potential for nearly unlimited business offering my services as a collusive Maryland defendant…. 😉