Legal Update

June 2020

Kenneth Alan Totz, DO, JD, FACEP

Sticks and Stones May Break Your Bones, But Words Can Now Hurt Your Pocketbook!

Is It Time To Fight Back On Defamatory Online Reviews?

In this new era of social media, countless articles and opinions regarding our quality of care are published under the auspices of First Amendment “free speech” protections. While Constitutional safeguards cover most of these publications, some bloggers and online reviewers are finding out the hard way that “free speech” doesn’t entitle you to say or publish anything on your mind.

Before we move forward, let’s first elaborate on what we mean when speaking of defamation. Defamation refers to the umbrella category of civil torts that harm a person’s relational interests with other persons in society. A tort is NOT a tasty French pastry! It is a civil wrongdoing, as opposed to a criminal wrongdoing. Torts (i.e. medical negligence, assault, defamation, etc.) are litigated by individuals and are usually resolved with monetary consequences, while criminal acts are prosecuted by the government and are usually resolved with incarceration and/or monetary penalties, if convicted. Defamation is commonly defined as a statement of fact, of or concerning the plaintiff (the allegedly wronged party), published by the defendant (the alleged wrongdoer) to a third person, which damages the reputation of the plaintiff. There are all sorts of intricate nuances to this particular tort, but we will keep the legal gobbledygook to a minimum here for our purposes. There are two general types of defamation: libel and slander. Libel is a defamatory statement recorded in writing or some other permanent form such as video, while slander is spoken defamation. Libelous damages are generally more actionable (easier to prove) due to the permanent nature of the statements, but certain slanderous statements such as those adversely reflecting on a plaintiff’s abilities in his business, trade, or profession are similarly actionable without proving special damages as in libel.

Hopefully these definitions give you some framework of where one can get in trouble by opening up their mouth or social media account. In a nutshell, statements of opinion and statements of truth will generally receive broad Constitutional protections. Be careful though of the statements of fact framed as an opinion, as we will soon see… Now, let’s take a look at a recent 2019 case decision from Australia that involved a plastic surgeon and his patient. The case is Kourosh Tavakoli v. Cynthia Imisides. Because the laws of England and their former colonies (i.e. Australia and The U.S.) all look very similar, precedential cases from these jurisdictions tend to form the basis of common law (judge made law) in all of the former colonial territories. In other words, court decisions from “down under” will influence the court’s decisions “over yonder.”

Dr. Kourosh Tavakoli, a well-known and respected Australian plastic surgeon, marketed himself extensively on various social media outlets such as Instagram and then utilized his stellar Google reviews to attract ongoing clientele. Dr. Tavakoli performed a “nose-job” on Mrs. Cynthia Imisides, who subsequently failed to attend the majority of her post-surgical appointments. She thereafter left a Google review stating that she was “extremely unhappy” with her surgical result and that Dr. Tavakoli had “no morals.” Shortly after her posting, traffic to Dr. Tavakoli’s website dropped 25%. Mrs. Imisides refused to remove her initial posting or answer court documents served upon her requesting she remove the posting. In defiance of a court order, she posted a second untrue Google review. When told by Dr. Tavakoli’s lawyers that she must remove the reviews, she told them to “piss off.” Needless to say, this did not sit well with the lawyers or the court. The presiding judge in the case ruled that the allegations made by Mrs. Imisides were “plainly untrue” , “extremely serious”, and damaged Dr. Tavakoli’s exemplary reputation. Mrs. Imisides was ordered to pay Dr. Tavakoli $530,000 in damages for the defamatory publication plus 4% interest on the amount from the time of the initial posting (almost two years…ouch!). Mrs. Imisides was also precluded from any future publishing or re-publishing of any reviews of or concerning Dr. Tavakoli. As you should now infer, re-publishing/re-tweeting/etc. defamatory material carries the same weight of the law as the initial publisher of the defamatory material, so don’t do it!

Courts have long protected the Constitutionality of satires and opinion-based publications produced by the mainstream media. The extensive oversight of media editors likely precluded an enormity of defamation cases. Today though, anyone with a smart phone or a computer (basically everyone) can publish a libelous tirade day or night, just after they receive their balance bill… Unfortunately, the patients we generally see are not the plastic surgery crowd that would make pursuing a claim economically advantageous. Nevertheless, a claim can still be pursued to enjoin (ordering someone to perform or refrain from performing a task) the blogger from keeping any defamatory material posted online.

Kenneth Alan Totz, DO, JD, FACEP

No information within this publication should be construed as medical or legal advice. Independent medical and/or legal advice should be sought based on each individual’s particular circumstances.