Indirectly Inciting "Followers to Flood" Business "with False Reviews, Calls, and Emails" May Be Tortious

From Couture v. Noshirvan, decided Tuesday by Judge Kyle Dudek (M.D. Fla.):

[T]he story begins with a viral video of a parking-lot argument. Convinced that one of the women [Couture] had broken the law, Noshirvan set out to uncover her identity. He deployed a "sock puppet" social media account, posing as a concerned bystander to gain her trust. The ruse worked, and Couture unwittingly confirmed her involvement. Armed with that info, Noshirvan published a TikTok video broadcasting both Couture's name and her employer—Garramone Plastic Surgery.

Noshirvan's followers quickly took to the comments with ideas for how to retaliate. One suggested to "schedule appointments and not show up[.]" Another pitched calling Garramone Plastic Surgery to ask about Couture. And two users went so far as to agree that "we are now working on reviews for his business[.]" Just as the comments suggested, Garramone Plastic Surgery received emails, voicemails, and fictitious reviews….

Apparently having endured enough of this negative publicity, patients cancelled their scheduled procedures, a physician left the practice, and Garramone Plastic Surgery hired security personnel and installed an enhanced security system. Garramone Plastic Surgery now seeks to recover those damages….

The court held that Garramone's tortious interference claim against Noshirvan could go forward:

To succeed on a claim for tortious interference under Florida law, the plaintiff must prove: "(1) the existence of a business relationship, not necessarily evidence[d] by an enforceable contract; (2) knowledge of the relationship on the part of the defendant; (3) an intentional and unjustified interference with the relationship by the defendant; and (4) damage[s.]" …

There is no shortage of evidence showing both protected business relationships and Noshirvan's knowledge of them. Garramone Plastic Surgery's testimony highlights interference with its existing patients and with Dr. Allison Yee, an associate physician who left the practice amid the fallout. Florida law does not require Noshirvan to know these individuals by name. He merely had to know the business relationships existed. The targeted nature of the online attack—especially the bogus reviews planted on the Yelp and Google pages—is more than enough for a jury to infer that Noshirvan knew he was interfering with the practice's clientele.

Further, there is evidence of competent damages. Garramone Plastic Surgery testified that it lost about $900,000 in non-surgical procedures and $130,000 in surgical procedures. Then there are the costs Garramone Plastic Surgery incurred for security personnel and a security surveillance system. …

What is not clear though, is whether there was intentional, unjustified interference…. But Noshirvan's intent in making his posts is best left for the jury. A reasonable jury could conclude Noshirvan's intent was to harass and target Garramone Plastic Surgery. [Plaintiff's theory is that] {Noshirvan incited his followers to flood Garramone Plastic Surgery with false reviews, calls, and emails.} … A reasonable jury could also conclude, however, that Noshirvan's intent was just to harass and target Couture.

The court also concluded that Noshirvan couldn't use 47 U.S.C. § 230 to avoid liability:

Section 230 protects a "provider or user of an interactive computer service" from being treated as the "publisher or speaker" of information provided by another. While there is admittedly little case law regarding users of interactive computer services, a user or provider is still responsible for their own encouragement of, or material contribution to, unlawful content. See, e.g., Elliott v. Donegan (E.D.N.Y. 2022); Doe #1 v. MG Freesites, LTD (N.D. Ala. 2022). Noshirvan published multiple videos on his social media accounts specifically identifying Garramone Plastic Surgery. The videos can be interpreted as a call to action for his followers—especially given Noshirvan's comments that he had done this to numerous people before. Noshirvan cannot escape liability by focusing on the reviews, calls, and emails. After all, it is his own publication that a reasonable jury could conclude sparked them….

But the court concluded that, though Garramone's incitement theory might support a tortious interference claim, it couldn't support a civil conspiracy claim, which requires enough evidence of an "agreement" to do something unlawful:

An agreement can be express or implied. But where a party lacks direct evidence of a conspiracy, circumstantial evidence only establishes an agreement where it "outweighs all reasonable inferences to the contrary."

Garramone Plastic Surgery cannot show an agreement exists…. Garramone Plastic Surgery … claims direct incitement, but the evidence falls short. Noshirvan certainly gave his audience the practice's name, but he did not issue the marching orders to attack its reviews. That call to action came from someone else—a user named @motherofrockets. Garramone Plastic Surgery does provide a post where Noshirvan suggested calling businesses around the practice. But that post is a far cry from launching a targeted harassment campaign against Garramone Plastic Surgery, which is the conduct at issue. There is simply not enough evidence for a jury to conclude Noshirvan directed his followers' actions.

Garramone Plastic Surgery separately leans on indirect incitement, claiming that alone is enough to prove a conspiracy. But that argument expands Florida civil conspiracy liability beyond its breaking point…. When courts find an actionable agreement, there is often at least some direct communication between the conspirators. That crucial link is missing here….

The record here certainly shows that Noshirvan's followers committed wrongful acts. It may even show that he knew his followers were bound to respond with this sort of misconduct. But the Court declines to endorse a rule that anticipating bad behavior creates a conspiracy, at least not without some Florida law in support.

In conducting its own research, the Court could find only one case involving social media. See Conradis v. Buonocore (M.D. Fla. 2021). It offers no meaningful support to Garramone Plastic Surgery because the defendant directly encouraged and recruited third parties to engage in a specific act. At bottom, Garramone Plastic Surgery has failed to prove an actionable agreement between Noshirvan and his followers….