Review Law: New York Defamation Applied to Online Consumer Reviews

St. John's Law Review St. John's Law Review

Volume 93, 2019, Number 4 Article 10

Review Law: New York Defamation Applied to Online Consumer Review Law: New York Defamation Applied to Online Consumer

Reviews Reviews

Ian Lewis-Slammon

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1267

REVIEW LAW:

NEW YORK DEFAMATION APPLIED TO

ONLINE CONSUMER REVIEWS

IAN LEWIS-SLAMMON

†

INTRODUCTION

In early July 2017, Michelle Levine booked her first and only

appointment with gynecologist Dr. Joon Song for an annual exam.

Ms. Levine had a dissatisfying experience with the office. She

claims that Dr. Song’s office did not follow up with her for almost

a month,

and that when she called to ask about the results of a

blood test, Dr. Song’s staff falsely informed her that she tested

positive for herpes.

To top it off, Ms. Levine alleges that the office

overcharged her.

Following this experience, Ms. Levine did what

many others do when dissatisfied with a product or service—she

took to the internet to complain.

On July 10, August 10, and August 11, 2017, Ms. Levine

authored several negative reviews about Dr. Song and his

business.

She posted reviews on Yelp, a popular consumer review

website, and on ZocDoc, HealthGrades, and RateMDs, platforms

where patients can rate and review medical professionals.

In her

one-star Yelp review, Ms. Levine described Dr. Song’s office as a

“[v]ery poor and crooked business practice” that “caused [her] to go

†

Articles Editor, St. John’s Law Review; J.D. Candidate, 2020, St. John’s

University School of Law; B.A., 2014, Hampshire College. I want to thank my Note

advisor, Professor Jeremy Sheff, for his insight and guidance. Additionally, I thank

my fellow St. John’s Law Review staff and editors for their hard work preparing my

Note for publication.

Answer & Counterclaims at 15, Great Wall Med. P.C. v. Levine, No.

157517/2017 (N.Y. Sup. Ct. N.Y. Cnty. filed July 27, 2018), NYSCEF Doc. No. 89.

Id. at 16.

Id.

Id. at 16–17.

Id. at 18.

Verified Complaint at 6–12, Levine, No. 157517/2017 (filed Aug. 22, 2017),

NYSCEF Doc. No. 1.

Id.

1268 ST. JOHN’S LAW REVIEW [Vol. 93:1267

into a panic” after giving her false information over the phone.

She accused the office of trying to scam her and stated that Dr.

Song “needs to lose his medical license.”

Less than two weeks after Ms. Levine’s August 11 review, Dr.

Song’s attorneys filed a complaint against her alleging defamation

and trade libel, tortious interference with contracts, and

intentional infliction of emotional distress.

The complaint sought

a permanent injunction against her to bar her from disparaging

Dr. Song or from “otherwise posting defamatory comments about”

him and his business.

Additionally, Dr. Song sought “exemplary

or punitive damages in an amount appropriate to punish [Ms.

Levine] and to make an example of [her] to the community,” as

well as actual damages “in no event less than $1,000,000.”

Dr.

Song has since described that amount as “a symbolic sum.”

Meanwhile, Ms. Levine has set up a page on GoFundMe, a

crowdfunding platform, to cover the legal fees she claims are

required for her defense.

Arguably, this litigation has made matters worse for both

parties. Since this litigation commenced, Ms. Levine has given

interviews with news outlets, explaining that she has struggled

with the financial burden of defending herself.

Initially facing

only four negative reviews of his business, Dr. Song now must

contend with news articles about this litigation, which, perhaps

deservedly, paint him in a litigious light.

But he too has gone to

the press

and both parties seem to have done so in violation of a

Plaintiff’s Exhibit A at 1, Levine, No. 157517/2017 (filed Aug. 22, 2017),

NYSCEF Doc. No. 2.

Id. at 1–2.

Verified Complaint, supra note 6, at 13–15.

Id. at 16.

Id.

Defendant’s Exhibit C, Levine, No. 157517/2017 (filed July 23, 2018), NYSCEF

Doc. No. 84.

Plaintiff’s Exhibit 6, Levine, No. 157517/2017 (filed May 30, 2018), NYSCEF

Doc. No. 74.

See Plaintiff’s Exhibit 1, Levine, No. 157517/2017 (filed May 30, 2018), NYSCEF

Doc. No. 69; Plaintiff’s Exhibit 2, Levine, No. 157517/2017 (filed May 30, 2018),

NYSCEF Doc. No. 70; Plaintiff’s Exhibit 3, Levine, No. 157517/2017 (filed May 30,

2018), NYSCEF Doc. No. 71; Plaintiff’s Exhibit 4, Levine, No. 157517/2017 (filed May

30, 2018), NYSCEF Doc. No. 72; Plaintiff’s Exhibit 7, Levine, No. 157517/2017 (filed

May 30, 2018), NYSCEF Doc. No. 75.

See First Amended Complaint at 22–23, Levine, No. 157517/2017 (filed June

29, 2018), NYSCEF Doc. No. 79.

See Defendant’s Exhibit C, supra note 13.

2019] REVIEW LAW 1269

stipulation made between them.

Further, Ms. Levine allegedly

posted even more negative reviews after the litigation commenced,

targeting both Song and his attorneys.

From the perspective of

an outside observer, what started as a dissatisfied patient airing

her perceived grievances online seems to have escalated into a

public feud. Rather than serve as a means of resolving the

differences between the parties, this litigation has only acted as

an accelerant, fanning the flames of their conflict and inspiring

further animosity.

Yet, this Note does not seek to comment on the specific merits

of Dr. Song’s claim against Ms. Levine. Instead, this Note seeks

to address significant issues raised in this litigation. In a state

with an opinionated populace such as New York, should

consumers, like Ms. Levine, be free to post negative reviews online

without fear of legal reprisal? To what degree should service

providers, like Dr. Song, be able to silence those negative

reviewers with litigation?

To begin answering these questions, Part I of this Note will

discuss the New York State anti-SLAPP law and its very limited

applicability in the online consumer review context. Next, Part II

will examine free speech under the New York Constitution,

compare it to the protection offered by the Federal Constitution,

and illustrate that the former provides broader protection for

statements of opinion than the latter. Finally, Part III will argue

that, under the relevant New York case law, online reviews should

most often constitute nonactionable opinion. Part III will go on to

argue that the special consideration given to letters to the editor,

and similar journalistic opinion pieces, should extend to the online

review context. Such an extension by the New York Court

of Appeals would send a message discouraging defamation

suits against online reviewers and encouraging their dismissal. It

would solidify the free speech rights of speakers in the consumer

review context with a measure of protection currently unavailable

under New York’s weak anti-SLAPP law.

See Stipulation & Consent Order for Preliminary Injunction at 2, Levine, No.

157517/2017 (filed Feb. 13, 2018), NYSCEF Doc. No. 63.

First Amended Complaint, supra note 16, at 16–21.

1270 ST. JOHN’S LAW REVIEW [Vol. 93:1267

I. ANTI-SLAPP PROTECTION IS ELUSIVE IN NEW YORK

Many states have recognized the chilling effect on an

individual’s freedom of speech imposed by the threat of litigation.

In the worst cases, parties seeking to silence their critics can file a

frivolous lawsuit against them, known as a “strategic lawsuit[]

against public participation,” or a SLAPP.

Even though many

such lawsuits do not succeed, the burden of litigation itself is often

sufficient to silence those who would otherwise speak out.

response, and in an effort to protect freedom of speech, more than

half of states have enacted “anti-SLAPP” legislation.

Not all

anti-SLAPP statutes are made equal, however, as some “provide

substantial protection while others offer significantly more limited

safeguards.”

California, for example, has enacted a strong

anti-SLAPP statute,

which, despite its critics, seems to be

successfully protecting speakers from meritless lawsuits.

New York is also among the states that have enacted

anti-SLAPP legislation.

But New York’s statute applies in

limited contexts—only where the targeted speech deals with a

public application or permit.

The Public Participation Project,

which advocates for anti-SLAPP legislation,

gives New York’s

anti-SLAPP statute a grade of “D” and describes it as “weak.”

Conversely, California provides an example of an anti-SLAPP

law that applies more broadly, including in the online consumer

review context. In Wong v. Jing, a California appellate court

modified the denial of an anti-SLAPP motion made by online

Jeremy Rosen & Felix Shafir, Helping Americans to Speak Freely, 18

FEDERALIST SOC’Y REV. 62, 63 (2017).

Penelope Canan & George W. Pring, Studying Strategic Lawsuits Against

Public Participation: Mixing Quantitative and Qualitative Approaches, 22 L. & SOC’Y

REV. 385, 386 (1988).

See Rosen & Shafir, supra note 20, at 62–63.

Id. at 63.

Id.

See CAL. CIV. PROC. CODE § 425.16 (West, Westlaw through Ch. 291 of the 2019

Reg. Sess.); California, PUB. PARTICIPATION PROJECT, https://anti-slapp.org/california

(last visited Jan. 11, 2020).

See Rosen & Shafir, supra note 20, at 64–65.

N.Y. CIV. RIGHTS LAW § 70-a (McKinney, Westlaw through L. 2019, ch. 256).

See 59 CHRISTINE M. G. DAVIS ET AL., NEW YORK JURISPRUDENCE § 63 (2d ed.

Supp. 2019).

Our Work: Federal & State Legislation, PUB. PARTICIPATION PROJECT,

https://anti-slapp.org/federal-state-legislation (last visited Jan. 11, 2020).

New York, PUB. PARTICIPATION PROJECT, https://anti-slapp.org/new-york. (last

visited Jan. 11, 2020).

2019] REVIEW LAW 1271

consumer reviewers.

There, a dentist brought an action against

the parents of a former patient, alleging that they posted a

defamatory and injurious Yelp review.

The court established

that

although “not every Web site post involves a public issue,”

consumer information that goes beyond a particular interaction

between the parties and implicates matters of public concern that

can affect many people is generally deemed to involve an issue of

public interest for purposes of the anti-SLAPP statute.

Therefore, in that instance, California’s anti-SLAPP statute

applied to the consumer review context.

Accordingly, Californian

consumers who post online reviews that implicate matters of

public concern are entitled to a swifter dismissal of meritless

charges brought in response, and they are entitled “to recover

[their] attorney’s fees and costs.”

Meanwhile, New York reviewers are not entitled to such

statutory protection. New York’s anti-SLAPP statute is available

to a defendant only “in an action involving public petition and

participation,”

which is defined by statute as “an action, claim,

cross claim or counterclaim for damages that is brought by a public

applicant or permittee, and is materially related to any efforts of

the defendant to report on, comment on, rule on, challenge or

oppose such application or permission.”

Therefore, New York’s

anti-SLAPP statute only provides protection in very limited

contexts—where a lawsuit targets speech directly relating to a

public application.

Such an application only includes “a permit,

zoning change, lease, license, certificate or other entitlement for

use or permission to act from any government body.”

Thus,

except for the odd review that critiques a party seeking such an

application or permit, New York’s anti-SLAPP statute does not

protect the speech of online consumer reviewers.

117 Cal. Rptr. 3d 747, 753–54 (Cal. Ct. App. 2010).

Id.

Id. at 759 (citations omitted).

Id. at 761.

CAL. CIV. PROC. CODE § 425.16(c)(1) (West, Westlaw through Ch. 291 of the

2019 Reg. Sess.).

N.Y. CIV. RIGHTS LAW § 70-a(1) (McKinney, Westlaw through L. 2019, ch. 256).

Id. § 76-a(1)(a) (emphasis added).

Guerrero v. Carva, 10 A.D.3d 105, 117 (1st Dep’t 2004) (“A narrow construction

of the anti-SLAPP law requires that a SLAPP-suit defendant must directly challenge

an application or permission in order to establish a cause of action under the Civil

Rights Law.” (citation omitted)).

N.Y. CIV. RIGHTS LAW § 76-a(1)(b).

1272 ST. JOHN’S LAW REVIEW [Vol. 93:1267

Therefore, in the online consumer review context, California’s

anti-SLAPP statute offers a measure of protection against

meritless litigation that New York’s does not. Yet, it seems

incongruous that New York—with its opinionated populace and

preeminence as a publishing capital

—would lag behind when it

comes to protecting its speakers. Nonetheless, New York’s

anti-SLAPP law does not offer much protection for defendants in

Ms. Levine’s position unless they fall within the statute’s

narrow boundaries. Thus, such defendants will most likely have

to look elsewhere.

II. NEW YORKERS’ RIGHT TO THEIR OPINIONS

A. An Overview of Freedom of Speech in New York

New York has a long history of being a cultural center for the

nation.

In particular, the American publishing industry has

flourished in the state, as New York City “long ago became the

pre-eminent publishing city in the world.”

Reflecting its

prominence as a publishing and cultural hub, New York “has long

provided one of the most hospitable climates for the free exchange

of ideas.”

Indeed, the state’s tradition of heightened protection

for freedom of speech dates back to colonial times.

New Yorkers,

at least those in the City, have developed a reputation for being

opinionated, and many are more than willing to live up to it.

Yet, New York’s anti-SLAPP statute is weak. Where can New

Yorkers look for protection when their opinions rub someone the

wrong way? Well, as it happens, a fair amount of protection

is built into the New York Constitution itself. The New York

Constitution provides broader protection for free press and speech

See infra Section II.A.

Beach v. Shanley, 62 N.Y.2d 241, 256 (1984) (Wachtler, J., concurring) (“In the

19th century a large portion of the publishing industry was established in New York

and the State began to serve as a cultural center for the Nation. It still enjoys

that status.”).

Edwin McDowell, For Publishing, the City, Remains ‘the Mecca,’ N.Y.

TIMES (Mar. 15, 1983), https://www.nytimes.com/1983/03/15/nyregion/for-publishing-

the-city-remains-the-mecca.html.

Beach, 62 N.Y.2d at 255 (Wachtler, J., concurring).

Id.

See N. R. Kleinfield, New Yorkers, Self-Assured and Opinionated, Defend Their

Values, N.Y. TIMES (Jan. 15, 2016), https://www.nytimes.com/2016/01/16/nyregion/

new-yorkers-self-assured-and-opinionated-defend-their-values.html.

2019] REVIEW LAW 1273

than the First Amendment to the United States Constitution.

The Federal Constitution merely provides the minimum floor for

individual rights, whereas state courts are free to supplement

“those standards to meet local needs and expectations.”

The

drafters of the New York Constitution’s free speech guarantee

made the deliberate choice not to follow the language of the First

Amendment, “but instead to set forth our basic democratic ideal of

liberty of the press in strong affirmative terms.”

The New York

Court of Appeals recognized this in O’Neill v. Oakgrove

Construction, Inc., stating:

The protection afforded by the guarantees of free press and

speech in the New York Constitution is often broader than the

minimum required by the First Amendment. Article I, § 8 of the

[New York] Constitution assures, in affirmative terms, the right

of our citizens to “freely speak, write and publish” and prohibits

the use of official authority which acts to “restrain or abridge the

liberty of speech or of the press.”

Since O’Neill, the Court of Appeals has continued to define that

broader protection.

Of particular importance to the inquiry here,

the New York high court has identified that statements of opinion

receive greater protection under the New York Constitution than

under the First Amendment.

B. The First Amendment Standard for Nonactionable Opinion

The Supreme Court of the United States clarified the extent

of the First Amendment’s protection for statements of opinion in

Milkovich v. Lorain Journal Co. in 1990.

There, a high school

wrestling coach sued a newspaper and one of its writers for libel

based on an article in the sports pages.

According to the Court,

the article implied that the coach lied under oath at an official

proceeding.

The Ohio Court of Appeals had affirmed summary

O’Neill v. Oakgrove Constr., Inc., 71 N.Y.2d 521, 529 n.3 (1988) (citations

omitted); Eileen R. Kaufman & Leon Friedman, Freedom of Speech – How Does the

New York Constitution Compare to the U.S. Constitution?, 14 TOURO L. REV. 583,

588 (1998).

Immuno AG. v. Moor-Jankowski, 77 N.Y.2d 235, 248 (1991) (citation omitted).

Id.

71 N.Y.2d at 529 n.3 (citations omitted).

See Davis v. Boeheim, 24 N.Y.3d 262, 269-70 (2014); Gross v. N.Y. Times Co.,

82 N.Y.2d 146, 156 (1993); Immuno, 77 N.Y.2d at 249, 251–52.

Immuno, 77 N.Y.2d at 249, 252.

See generally Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990).

Id. at 3.

Id.

1274 ST. JOHN’S LAW REVIEW [Vol. 93:1267

judgment against the coach, “based in part on the grounds that the

article constituted an ‘opinion’ protected from the reach of

state defamation law by the First Amendment to the United

States Constitution.”

In Milkovich, Ohio courts interpreted the Supreme Court’s

decision in Gertz v. Robert Welch, Inc. as extending greater First

Amendment protection to statements of opinion.

The Ohio

Supreme Court, reviewing a parallel lawsuit arising from the

same article, also applied an analysis set forth in a decision by the

United States Court of Appeals for the District of Columbia.

This

analysis considered four factors to determine whether a statement

was of fact or nonactionable opinion.

Under the first two factors,

which required the court to examine “the specific language used”

and ask “whether the statement is verifiable,” the Ohio court

found that the article’s passages contained assertions of fact.

Yet

under the latter two factors, which looked to “the general context

of the statement” and “the broader context in which the statement

appeared,” the court found that the article was a constitutionally

protected opinion.

Upon its review of the wrestling coach’s case, the Supreme

Court rejected the Ohio court’s approach, describing it as “a

wholesale defamation exemption” under the First Amendment “for

anything that might be labeled ‘opinion.’ ”

The Court clarified

that Gertz merely reiterated Justice Holmes’s “marketplace of

ideas” concept, and did not establish a special opinion exemption.

Id.

Milkovich, 497 U.S. at 8–10; Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).

The following was the relevant language in Gertz that the Ohio Supreme Court

recognized as leading to this conclusion:

Under the First Amendment there is no such thing as a false idea. However

pernicious an opinion may seem, we depend for its correction not on the

conscience of judges and juries but on the competition of other ideas. But

there is no constitutional value in false statements of fact.

Id. at 339–40 (footnote omitted).

Milkovich, 497 U.S. at 8–9. The decision that the Ohio Supreme Court relied on

was Ollman v. Evans, 750 F.2d 970 (D.C. Cir. 1984).

Milkovich, 497 U.S. at 9.

Id. (quoting Scott v. News-Herald, 496 N.E.2d 699, 706–07 (Ohio 1986)). The

Supreme Court essentially retained these first two factors in its First Amendment

opinion analysis. Id. at 19–20.

Id. at 9 (quoting Scott, 496 N.E.2d at 706–07). The Ohio Court of Appeals, bound

by the Ohio Supreme Court’s decision, affirmed summary judgment for the newspaper

and writer in the wrestling coach’s case. Id. at 10. The Supreme Court of Ohio

dismissed the coach’s appeal, and the Supreme Court granted certiorari. Id.

Id. at 18 (citation omitted).

Id. (citation omitted).

2019] REVIEW LAW 1275

Rather, under the First Amendment, a statement of opinion is only

protected if it cannot be reasonably interpreted as an assertion of

a provably false fact.

The Court rejected an analysis that would

require what it called “the creation of an artificial dichotomy

between ‘opinion’ and fact”

because “expressions of ‘opinion’ may

often imply an assertion of objective fact.”

Therefore, the Court

did not adopt a First Amendment analysis that considers the

general context of a statement or the context in which a statement

appears.

Instead, the Court held that freedom of expression was

“adequately secured by existing constitutional doctrine.”

Thus,

the Court established a more limited doctrine for determining

whether speech constitutes nonactionable opinion under the First

Amendment and reversed the Ohio Court of Appeals, finding that

a reasonable fact-finder could find factual assertions in the article

at issue.

C. The Standard for Nonactionable Opinion Under the New

York Constitution

The next year, in 1991, the Milkovich decision led the New

York Court of Appeals to revisit one of its own decisions.

The

court followed the Milkovich holding in its First Amendment

analysis,

however, it distinguished Milkovich with regard to its

analysis under the New York Constitution.

In Immuno AG. v.

Moor-Jankowski, a manufacturer of biologic products had brought

a defamation action based on a letter to the editor published in a

medical journal.

The letter was prefaced by an editorial note that

set out its background, the identity of its author, and the

manufacturer’s objections to the letter.

The letter was critical of

Id. at 19–20.

Id. at 19.

Id. at 18.

Id. at 18–23.

Id. at 19.

Id. at 21.

Immuno AG. v. Moor-Jankowski, 77 N.Y.2d 235, 239–40 (1991).

Id. at 242–48.

Id. at 249–50.

Id. at 240.

Id. 240–41.

1276 ST. JOHN’S LAW REVIEW [Vol. 93:1267

the manufacturer’s plan to open a new facility for conducting

medical research on chimpanzees in Sierra Leone, and it laid out

a number of concerns.

Previously, the Court of Appeals had affirmed the dismissal of

the manufacturer’s action, finding that “the letter writer’s

statements of opinion were entitled to the absolute protection of

the State and Federal constitutional free speech guarantees.”

this review, the court again affirmed dismissal under the First

Amendment, even in light of the Milkovich holding.

independent, state constitutional grounds, however, the court

adhered to the analysis it had previously applied and rejected the

doctrine set out in Milkovich.

The court “found that the Milkovich approach provided

insufficient protection to the central values protected by Article I,

section 8 of the New York State Constitution.”

The Immuno

court held that, unlike the First Amendment, the state

constitution required a distinction between statements of

actionable fact and statements of protected opinion.

This holding

required an analysis beyond simply parsing the language at issue

to determine if it “assert[ed] or impl[ied] a provably false

fact.”

Instead, the New York Constitution requires courts “to

read published articles in context to test their effect on the

average reader . . . [and] to consider the publication as a

whole.”

Based on that requirement, the court “adopted a highly

contextual approach.”

Id. at 240. Those concerns were:

(1) that the motivation for the plan was presumably to avoid international

policies or legal restrictions on the importation of chimpanzees, an

endangered species; (2) that it could decimate the wild chimpanzee

population, as capture of chimpanzees generally involved killing their

mothers, and it was questionable whether experimental animals could be

returned to the wild, as plaintiff proposed; and (3) that returning the animals

to the wild could well spread hepatitis to the rest of the chimpanzee

population. [The author] stated that the current population of captive

chimpanzees should be adequate to supply any legitimate requirements.

Id.

Id. at 239.

Id. at 246–48. The court nonetheless reached the same result under the First

Amendment because the manufacturer had not met its burden by proving falsity. Id.

at 245–48.

Id. at 251–52.

Kaufman & Friedman, supra note 46, at 589.

Immuno, 77 N.Y.2d at 252.

Kaufman & Friedman, supra note 46, at 589.

Immuno, 77 N.Y.2d at 250 (citations omitted).

Kaufman & Friedman, supra note 46, at 589.

2019] REVIEW LAW 1277

Therefore, the Immuno court’s analysis emphasized the

context in which the allegedly defamatory statements appeared.

First, because the statements appeared in a letter to the editor,

the court examined the broader social context of that medium.

reasoned that the average reader would view a letter to the editor

not as a “rigorous and comprehensive presentation of factual

matter” but instead as a vehicle “principally for the expression of

individual opinion.”

This “common expectation”

was bolstered

by the presence of the editorial note, which signaled readers that

they were only to give the letter’s statements the weight they chose

to accord the writer’s views.

In that context, the reputational

harm such a letter could inflict would be limited to the “inherent

persuasiveness” and “credibility of the writer,” since it does not

have the same authority as the overall publication.

In addition to presenting a lower risk of serious reputational

harm, the court also reasoned that opinionated speech in the letter

to the editor context carries high social value.

The court

emphasized the important role of a letter to the editor in giving a

platform to ordinary persons who might not otherwise have a way

to share their views with a large audience.

“[F]or many members

of the public, a letter to the editor may be the only available

opportunity to air concerns about issues affecting them.”

The

court reasoned that a troubled citizen should feel “free” to take

advantage of that opportunity and that a newspaper should

similarly feel “free” to publish that citizen’s views.

Indeed, “[i]t

is often the only way to get things put right.”

Beyond just serving as a valuable outlet for those who write

and submit letters, the court noted that “[t]he availability of such

a forum is important . . . because it allows the readership to learn

about grievances, both from the original writers and from those

who respond, that perhaps had previously circulated only as

Id. at 590.

Immuno, 77 N.Y.2d at 253.

Id. (quoting Immuno AG. v. Moor-Jankowski, 145 A.D.2d 114, 129 (1st

Dep’t 1989)).

Id. (quoting Immuno, 145 A.D.2d at 129).

Id. at 252.

Id. at 252–53.

Id. at 253.

Id.

Id. (citation omitted).

1278 ST. JOHN’S LAW REVIEW [Vol. 93:1267

rumor.”

The court added that “such a forum can advance an issue

beyond invective.”

Yet, it conceded that “at the least, the public

may learn something, for better or worse, about the person or

group that wrote such a letter.”

Following its exploration of the broader social context, the

Immuno court considered the “immediate context of the letter.”

The court looked to the medical journal’s audience and reasoned

that, on the whole, its readership was likely sophisticated and

educated about the issues the letter raised.

Further, the court

gave weight to the editorial note preceding the letter because it

informed the reader that the statements in the letter reflected the

writer’s point of view and that the manufacturer disapproved of

that view.

Additionally, the court considered that the writer was

a known animal rights activist and a member of an avowedly

activist organization.

100

“The letter made clear that its purpose

was to voice the conservationist concerns of this partisan

group . . . .”

101

Thus, even though the language used in the letter

was “serious and restrained,” the court held that the immediate

context of the letter, along with its broader social setting, “would

induce the average reader of this Journal to look upon the

communication as an expression of opinion rather than a

statement of fact.”

102

Therefore, the Court of Appeals held that the letter to the

editor constituted nonactionable opinion and reaffirmed the grant

of summary judgment for the defendant.

103

Defending its rejection

of the Milkovich approach for the state constitutional standard,

the court wrote that

an analysis that begins by looking at the content of the whole

communication, its tone and apparent purpose better balances

the values at stake than an analysis that first examines the

Id.

Id. (quoting Immuno AG. v. Moor-Jankowski, 145 A.D.2d 114, 129 (1st

Dep’t 1989)).

Id. at 252.

100

Id. at 254.

101

Id.

102

Id.

103

Id. at 255–57.

2019] REVIEW LAW 1279

challenged statements for express and implied factual assertions,

and finds them actionable unless couched in loose, figurative or

hyperbolic language in charged circumstances.

104

For the court, the values at stake were the core justifications for

freedom of expression under the New York Constitution, including

the “ ‘marketplace of ideas’ and oversight and informational

values,” which compel protection for “fair comment, fair report,

and . . . expression of opinion.”

105

The court held that “[t]hese

values are best effectuated by according defendant some latitude

to publish a letter to the editor on a matter of legitimate public

concern—the letter’s author, affiliation, bias and premises fully

disclosed, rebuttal openly invited—free of defamation litigation.”

106

In the years since Immuno, the Court of Appeals has

upheld this privilege for nonactionable opinion.

107

The court has

embraced a three-factor analysis, based on the same analysis

rejected by the Supreme Court in Milkovich, for analyzing whether

statements are entitled to this protection.

108

First, an evaluating

court must ask “whether the specific language in issue has a

precise meaning which is readily understood.”

109

Second, the court

must ask “whether the statements are capable of being proven

true or false.”

110

Finally, the evaluating court must ask “whether

either the full context of the communication in which the

statement appears or the broader social context and surrounding

circumstances are such as to signal . . . readers or listeners that

what is being read or heard is likely to be opinion, not fact.”

111

With that final prong, the New York high court has maintained its

highly contextual approach to identifying nonactionable opinion,

and has allowed a broader range of speech to fall within that

protected category.

104

Id. at 254 (citation omitted).

105

Id. at 255.

106

Id. (emphasis added).

107

See Davis v. Boeheim, 24 N.Y.3d 262, 269–70 (2014) (applying nonactionable

opinion analysis); Kaufman & Friedman, supra note 46, at 590–93.

108

Davis, 24 N.Y.3d at 270 (citation omitted). Although the Immuno court did not

explicitly apply a four- or three-factor analysis, it affirmed the approach adopted by

the Court of Appeals in Steinhilber v. Alphonse, 68 N.Y.2d 283 (1986). Immuno, 77

N.Y.2d at 252. Steinhilber had adopted its four-factor test directly from Ollman v.

Evans, 750 F.2d 970 (D.C. Cir. 1984), the same case that the Ohio Supreme Court had

relied on, before it was rejected in Milkovich. Steinhilber, 68 N.Y.2d at 292. Following

Immuno, the Court of Appeals consolidated the third and fourth factors of the Ollman

analysis into a single factor. See Gross v. N.Y. Times Co., 82 N.Y.2d 146, 153 (1993).

109

Davis, 24 N.Y.3d at 270 (quoting Mann v. Abel, 10 N.Y.3d 271, 276 (2008)).

110

Id. (quoting Mann, 10 N.Y.3d at 276).

111

Id. (ellipsis in original) (quoting Mann, 10 N.Y.3d at 276).

1280 ST. JOHN’S LAW REVIEW [Vol. 93:1267

III. A JUDICIAL OPPORTUNITY TO PROTECT NEW YORKERS’

ONLINE OPINIONS

A. Under New York Nonactionable Opinion Analysis, the

Special Consideration for Letters to the Editor Properly

Extends to the Online Consumer Review Context

Although online reviewers will not find any protection under

New York’s anti-SLAPP law, the New York Constitution protects

statements of opinion more broadly than the First Amendment.

112

To what degree does that broader protection shield online

consumer reviewers against the burden of speech-chilling

litigation? The Court of Appeals is yet to speak directly on this

issue. But parallels between the letter to the editor context and

the online consumer review context suggest that the two should be

treated similarly, especially given the emphasis on context in New

York’s opinion analysis.

113

Additionally, the recent jurisprudence

of New York’s appellate courts further support the conclusion that

statements contained in an online consumer review should often

constitute nonactionable opinion as a matter of law.

Recently, the Court of Appeals applied nonactionable opinion

analysis in Davis v. Boeheim.

114

There, the court reviewed a

defamation claim against a Syracuse University coach who had

accused two alleged sexual abuse survivors of lying for financial

gain.

115

The court reviewed the pre-answer dismissal of the

defamation action and held that the plaintiffs had sufficiently

stated a claim.

116

In reaching this decision, the Davis court

followed the standard set in Immuno and relied heavily on the

context in which the defendant made his statements—officially,

including on the school’s website, with the authority of the head

coach, and from a position of someone with access to facts

unavailable to the public.

117

Thus, the context was such that a

reasonable reader or listener was likely to conclude that the

defendant had stated or implied facts.

118

112

See supra Part II.

113

See supra Section II.C.

114

24 N.Y.3d 262.

115

Id. at 265–67. The plaintiffs alleged that a colleague of the defendant, an

assistant coach at Syracuse, had sexually abused them as children. Id. at 265.

116

Id. at 274.

117

Id. at 266–67, 272.

118

Id. at 273 (citation omitted).

2019] REVIEW LAW 1281

Importantly, the Davis court acknowledged the continuing

existence of special consideration for letters to the editor and

opinion pieces in newspapers and other publications.

119

But the

allegedly defamatory statements at issue did not qualify for

such consideration.

120

Instead, the defendant’s statements were

published on the university website and were made to reporters

during a serious media investigation.

121

Therefore, “the common

expectations that apply to those more opinionated journalistic

endeavors were inapplicable.”

122

Overall, the context in which the

coach made his statements “encourag[ed] the reasonable reader to

be less skeptical and more willing to conclude that [he] stat[ed] or

impl[ied] facts.”

123

Thus, although the Court of Appeals did not

find nonactionable opinion in Davis, the court nonetheless

adhered to the contextual approach of Immuno for differentiating

between statements of protected opinion and statements of

actionable fact.

124

Though the Davis decision bears on the online consumer

review context in several ways, foremost is the court’s continued

reliance on a highly contextual approach, with context “often

[being] the key consideration” in nonactionable opinion analysis.

125

Under the Milkovich approach, a court would merely parse the

language of any particular online consumer review and pick

out statements that could “reasonably [be] interpreted as stating

[or implying] actual facts.”

126

At that point, under the First

Amendment, the analysis would be complete. But under Davis

and the New York Constitution, the context of the statements is

critical to the final determination and, therefore, must still

be examined.

127

Much like a letter to the editor, an online consumer review

indicates to the average reader that any statements contained

therein constitute the opinions of the writer. At the time of

Immuno, a letter to the editor was potentially the only available

119

Id. (citation omitted).

120

Id. (citations omitted).

121

Id.

122

Id. (quoting Gross v. N.Y. Times Co., 82 N.Y.2d 146, 156 (1993)).

123

Id. (quoting Gross, 82 N.Y.2d at 156) (second alteration added).

124

Id. at 270 (citations omitted).

125

Id. at 272 (quoting Thomas H. v. Paul B., 18 N.Y.3d 580, 585 (2012)).

126

Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990) (first alteration in

original) (citation omitted).

127

Davis, 24 N.Y.3d at 270.

1282 ST. JOHN’S LAW REVIEW [Vol. 93:1267

option for many people to voice their concerns.

128

Today, however,

many Americans voice their concerns online.

129

Meanwhile, many

Americans often have to deal with large companies, including the

likes of Amazon, Google, and Apple, which lack public

transparency.

130

In the face of this landscape, many Americans

feel that online reviews help to hold companies accountable to

their customers.

131

So, just like a letter to the editor, an online

review, in some instances, may be “the only way to get things

put right.”

132

Moreover, beyond just serving as a platform for writers to

persuade the broader community, the Immuno court found that

letters to the editor “allow[] the readership to learn about

grievances, both from the original writers and from those who

respond.”

133

Similarly, online reviews are a forum for readers to

learn about the grievances of reviewers. Many websites that host

online consumer reviews accommodate public responses to those

reviews through an indication of whether users found the review

helpful,

134

through an option to comment directly on the review,

135

or both.

136

Indeed, negative reviews give the reviewed party an

opportunity to learn about and rectify the circumstances that led

the consumer to write the review in the first place.

137

128

Immuno AG. v. Moor-Jankowski, 77 N.Y.2d 235, 253 (1991).

129

See MONICA ANDERSON ET AL., PEW RESEARCH CTR., ACTIVISM IN THE

SOCIAL MEDIA AGE 5 (2018), https://www.pewresearch.org/internet/2018/07/11/public-

attitudes-toward-political-engagement-on-social-media/.

130

Shining a Light on the World’s Biggest Companies, TRANSPARENCY INT’L (July

10, 2012), https://www.transparency.org/news/feature/shining-a-light-on-the-worlds-

biggest-companies (rating companies based on transparency on a scale of zero to ten).

131

AARON SMITH & MONICA ANDERSON, PEW RESEARCH CTR., ONLINE SHOPPING

AND E-COMMERCE 15 (2016), http://www.pewinternet.org/2016/12/19/online-reviews/

(“45% of the public says that consumer reviews help ‘a lot’ to make companies

accountable to their consumers, 15 percentage points higher than the share who feels

that government regulations are equally helpful (30%).”).

132

Immuno, 77 N.Y.2d at 253 (citation omitted).

133

Id.

134

See, e.g., YELP, https://www.yelp.com/ (last visited Jan. 13, 2020).

135

See, e.g., FACEBOOK, https://www.facebook.com (last visited Jan. 13, 2020).

136

See, e.g., AMAZON, https://www.amazon.com/ref=ap_frn_logo (last visited Jan.

13, 2020); Get Reviews on Google, GOOGLE MY BUS. HELP, https://support.google.com/

business/answer/3474122?hl=en (last visited Jan. 13, 2020).

137

See Brian Greenberg, What Is the Best Way To Deal with Negative Business

Reviews Online?, FORBES (June 19, 2018), https://www.forbes.com/sites/quora/2018/

06/19/what-is-the-best-way-to-deal-with-negative-business-reviews-online/#64169adc

971e.

2019] REVIEW LAW 1283

Additionally, with a letter to the editor, “at the least, the

public may learn something, for better or worse, about the person

or group that wrote such a letter.”

138

The same can certainly be

said with regard to those who post online reviews. For example,

in the online shopping context, it can often be helpful for shoppers

to look to reviews posted by those with similar needs, interests, or

preferences to inform their decisions.

139

Conversely, reviews may

contain indicia that lead readers to disregard the viewpoint of the

writer.

140

And it is possible that a tempered response to a negative

review from the reviewed party will shed more positive light on

that party than on the disgruntled reviewer.

141

Thus, speech in

the online review context functions in a way similar to speech in

the letter to the editor context.

There are, of course, also differences between the two

contexts. For one thing, an online review may not be subject to the

same sort of editorial oversight and selective publication that a

letter to the editor, like the one in Immuno, is subject to.

142

For

example, Yelp encourages its users to post reviews about nearly

anything,

143

and rather than take an editorial viewpoint, Yelp

“[does not] typically take sides in factual disputes and generally

allow[s] Yelpers to stand behind their reviews.”

144

Still, a lack of editorial selectivity in the online review

context is not decisive in nonactionable opinion analysis. What

the Immuno court emphasized regarding the editorial hand was

the presence of an editorial note that appeared above the letter at

138

Immuno, 77 N.Y.2d at 253.

139

See Caroline Beaton, Why You Can’t Really Trust Negative Online

Reviews, N.Y. TIMES (June 13, 2018), https://www.nytimes.com/2018/06/13/smarter-

living/trust-negative-product-reviews.html.

140

See Dena Cox et al., To Err Is Human? How Typographical and Orthographical

Errors Affect Perceptions of Online Reviewers, 75 COMPUTERS IN HUM. BEHAV. 245,

251 (2017).

141

See Greenberg, supra note 137.

142

Immuno, 77 N.Y.2d at 240–41.

143

Getting Started with Your First Review, YELP, https://www.yelp-support.com/

article/Getting-started-with-your-first-review?l=en_US (last visited Jan. 13, 2020).

144

Will Yelp Remove a False or Defamatory Review?, YELP, https://www.yelp-

support.com/article/Will-Yelp-remove-a-false-or-defamatory-review?l=en_US (last

visited Jan. 13, 2020). While it does not rise to the level of selective publication, Yelp

does have a system of recommending reviews, thereby increasing the visibility of

some reviews and not others. What Is Yelp’s Recommendation Software?, YELP,

https://www.yelp-support.com/article/What-is-Yelp-s-recommendation-

software?l=en_US (last visited Jan. 13, 2020). According to Yelp, these determinations

are made by a software program and are based on quality, reliability, and the

reviewer’s level of activity. Id.

1284 ST. JOHN’S LAW REVIEW [Vol. 93:1267

issue.

145

The editorial note described the background of the letter

and its author,

146

and indicated “that the letter was to be given

only the weight its readers chose to accord [the writer’s] views.”

147

Although, it may not serve as quite as much of a disclaimer, a

review on Yelp is presented alongside the profile picture and

username of the individual who posted it.

148

Even though the

profile picture and username are not as obvious as the editorial

note, Yelp’s support pages make clear that the views of their users

are not the views of the website.

149

Thus, in both contexts, the

views expressed are attributed to the individual, and there is no

suggestion that the weight of the publisher’s or platform’s

authority is behind them. Therefore, despite a lack of editorial

oversight and selectivity in the online review context, the

similarities between online reviews and letters to the editor are

still such that comparable treatment of both contexts is justified

in nonactionable opinion analysis.

Nonetheless, context is not the sole factor in nonactionable

opinion analysis. Though a statement’s context is perhaps most

important,

150

“whether the specific language in issue has a precise

meaning which is readily understood” and “whether the

statements are capable of being proven true or false” are still

determinative factors.

151

Thus, even though an online reviewer’s

statements may not be considered in isolation,

152

it is still possible

that an online review will contain actionable statements of fact.

To complicate matters, the Davis court found that many of the

statements at issue there, though arguably statements of opinion,

were premised on implied facts unavailable to the public at

large that the defendant had the opportunity to know.

153

Such

statements constitute “mixed opinion,” which the court held to be

actionable.

154

In the online review context, it is not difficult to

imagine a situation in which a review states an opinion but implies

facts that are unavailable to the public at large, such as the details

145

Immuno, 77 N.Y.2d at 252–53.

146

Id. at 240–41.

147

Id. at 252.

148

See YELP, https://www.yelp.com (last visited Jan. 13, 2020).

149

Can I Sue Yelp for a Bad Review?, YELP, https://www.yelp-support.com/article/

Can-I-sue-Yelp-for-a-bad-review (last visited Jan. 13, 2020); Will Yelp Remove a False

or Defamatory Review?, supra note 144.

150

Davis v. Boeheim, 24 N.Y.3d 262, 272 (2014) (citation omitted).

151

Id. at 270 (quoting Mann v. Abel, 10 N.Y.3d 271, 276 (2008)).

152

See Immuno, 77 N.Y.2d at 254.

153

See Davis, 24 N.Y.3d at 273.

154

Id. at 269 (citation omitted).

2019] REVIEW LAW 1285

of a particular transaction between a reviewer and a reviewee.

Such a review may find no protection, even under the New

York Constitution.

Still, even for such a review, nonactionable opinion analysis

must be conducted from the standpoint of a reasonable reader.

155

It is unlikely that a reasonable reader will approach a typical

online review without skepticism or believe that statements found

therein convey trustworthy facts about the subject of the review.

156

After all, as New York courts have recognized, “[r]eaders give less

credence to allegedly defamatory remarks published on the

Internet than to similar remarks made in other contexts.”

157

This

sentiment seemed to be confirmed by a 2016 Pew Research

Center study, which found that roughly half of Americans find

online reviews difficult to trust.

158

Therefore, the “common

expectation”

159

regarding online reviews seems to be that they

should be taken with a healthy dose of skepticism. Thus, many

reviews will still constitute nonactionable opinion even where

similar statements in other contexts would constitute actionable

mixed-opinion.

Moreover, two recent Appellate Division decisions lend

support to the conclusion that, under New York constitutional law,

online reviews are more likely to constitute nonactionable opinion

than speech in other contexts.

160

Both of these cases dealt with

defamation actions arising from allegedly defamatory Yelp

reviews, and both held those reviews to be nonactionable

opinion.

161

In Torati v. Hodak, the New York Appellate Division,

First Department, modified the denial of a motion to dismiss,

granting the motion as to negative comments that the defendant

anonymously posted to consumer review websites, including

155

See Immuno, 77 N.Y.2d at 254; see also Davis, 24 N.Y.3d at 269–70 (holding

that courts should approach opinion analysis from the perspective of an “average

person” (citation omitted)).

156

See SMITH & ANDERSON, supra note 131, at 13.

157

Torati v. Hodak, 147 A.D.3d 502, 503 (1st Dep’t 2017) (quoting Sandals Resorts

Int’l Ltd. v. Google, Inc., 86 A.D.3d 32, 44 (1st Dep’t 2011)).

158

SMITH & ANDERSON, supra note 131, at 13.

159

Immuno, 77 N.Y.2d at 253.

160

See Crescendo Designs, Ltd. v. Reses, 151 A.D.3d 1015, 1016 (2d Dep’t 2017);

Torati, 147 A.D.3d at 503.

161

See Crescendo Designs, 151 A.D.3d at 1016; Torati, 147 A.D.3d at 502–04

(finding a Yelp review nonactionable but a corresponding Facebook review actionable

because it contained “statements that [were] largely factual in nature”).

1286 ST. JOHN’S LAW REVIEW [Vol. 93:1267

Yelp.

162

The court acknowledged that “the Internet reviews

contain[ed] elements of both fact and opinion” but nonetheless

reasoned that “when viewed in context, they suggest to a

reasonable reader that the author was merely expressing his

opinion based on a negative business interaction with plaintiffs.”

163

Although the posts contained statements based on implied,

undisclosed facts,

164

the sort that the Court of Appeals held to

constitute “mixed opinion” in a different context in Davis,

165

the

Appellate Division nonetheless found them nonactionable in light

of their context.

166

Specifically, “ ‘the disgruntled tone, anonymous

posting, and predominant use of statements that cannot

be definitively proven true or false’ made [the posts] ‘only

susceptible of a nondefamatory meaning, grounded in opinion.’ ”

167

Thus, the immediate context of the review was held to be such

that the otherwise mixed-opinion statements constituted

nonactionable opinion.

168

Similarly, in Crescendo Designs, Ltd. v. Reses, the Appellate

Division, Second Department, affirmed a grant of summary

judgment, dismissing the libel claim of a home theater system

installer.

169

There, the installer brought an action against one of

his previous clients, who had posted a negative review of his

service on Yelp.

170

In line with Immuno, the Appellate Division

refused to “sift[] through” the review to pick out possible assertions

of fact.

171

Instead, like the Torati court, the Crescendo court

analyzed the whole context of the review from the perspective of a

reasonable reader.

172

In doing so, the court concluded that “a

162

147 A.D.3d at 503 (second alteration in original) (“The

communications . . . referr[ed] to plaintiff as a ‘bad apple,’ ‘incompetent and

dishonest,’ and a ‘disastrous businessman,’ from whom consumers should ‘[s]tay

far away.’ ”).

163

Id. (citations omitted).

164

Id.

165

Davis v. Boeheim, 24 N.Y.3d 262, 269 (2014) (citation omitted).

166

Torati, 147 A.D.3d at 503.

167

Id. (emphasis added) (quoting In re Woodbridge Structured Funding, LLC v.

Pissed Consumer, 125 A.D.3d 508, 509 (1st Dep’t 2015)).

168

See id.

169

151 A.D.3d 1015, 1016 (2d Dep’t 2017).

170

Id.

171

Id. (citation omitted).

172

Id. (citation omitted).

2019] REVIEW LAW 1287

reasonable reader would have believed that the writer of the

review was a dissatisfied customer who utilized the Yelp website

to express an opinion.”

173

Thus, the review was nonactionable.

174

Both of these cases support the conclusion that statements in

the online review context are likely to constitute nonactionable

opinion under New York law, and that the rationale of Immuno

still controls. Therefore, in light of these recent decisions, and the

significant parallels between letters to the editor and online

reviews, there is substantial support for the proposition that

the opinion rationale that Immuno applied to letters to the

editor should extend to the online review context. Thus, like

letters to the editor, online reviews will be actionable less

often than statements in other contexts and are entitled to

special consideration.

B. Special Consideration for Online Reviews in New York

Opinion Analysis Would Encourage Early Dismissal,

Discourage Frivolous Lawsuits, and Protect Free Expression

Legal rationales aside, there are significant policy

considerations that further justify heightened protection against

defamation lawsuits for online reviewers. Extending special

consideration to online consumer reviews would bring the

defamation jurisprudence of the New York Court of Appeals into

the twenty-first century. It would provide an added measure of

protection for modern, online speakers. The Immuno court itself

pointed out “the particular value of summary judgment, where

appropriate, in libel cases.”

175

The court relied upon that value as

a further justification for declining to apply the Milkovich

approach and maintaining a separate, more protective state law

analysis.

176

The court implied that the state constitutional

standard it upheld would make summary dispositions more

likely.

177

Judicial extension of special consideration to the online

review context, as already enjoyed by letters to the editor, would

bolster that likelihood for cases arising out of an increasingly

utilized forum.

173

Id. (citations omitted).

174

See id.

175

Immuno AG. v. Moor-Jankowski, 77 N.Y.2d 235, 256 (1991) (citation omitted).

176

See id.

177

See id. (citations omitted).

1288 ST. JOHN’S LAW REVIEW [Vol. 93:1267

Websites that allow users to post consumer reviews may not

be the most glamourous forums for speech, but online reviews

nonetheless have value in today’s society and courts should protect

speakers in this context. Indeed, many Americans find consumer

reviews to be more helpful than government oversight when it

comes to making consumers confident about their purchases,

holding companies accountable, and ensuring product safety.

178

Above all, despite their potential for virulence, online reviewers

tend to be most motivated by a desire to help others

make decisions.

179

Yet, while protecting the free speech rights of consumers is

important, the impact that negative reviews can have should not

be minimized. According to the Pew Research Center, eighty-two

percent of American adults at least sometimes read online reviews

before they make purchasing decisions.

180

That figure includes

forty percent of American adults who always or almost always rely

on online reviews.

181

Therefore, negative reviews certainly can

damage a business. Indeed, many people may depend on negative

reviews more than positive ones.

182

Although encouraging dismissal of defamation claims based

on online reviews may increase the likelihood that service

providers will be discouraged from bringing meritorious

defamation claims, most consumer reviews are not worth going to

court over. The risk an otherwise damaging review may pose to

reviewees is mitigated by several factors. Foremost, as mentioned

above, any factual assertions that may be found in an online

review will not necessarily be believed.

183

Further, a review with

typing and spelling errors, such as Ms. Levine’s Yelp review,

184

may be considered less credible, even by a reader that generally

finds well-written reviews trustworthy.

185

Regardless, it seems

that many reviews found online are demonstrably unreliable to

begin with.

186

Recently, that unreliability has become increasingly

178

SMITH & ANDERSON, supra note 131, at 15–16.

179

Beaton, supra note 139.

180

SMITH & ANDERSON, supra note 131, at 12.

181

Id.

182

Beaton, supra note 139.

183

SMITH & ANDERSON, supra note 131, at 13.

184

See Plaintiff’s Exhibit A, supra note 8, at 1–2.

185

Cox et al., supra note 140, at 250.

186

See Beaton, supra note 139. Reviews may be unreliable because they do not

reflect objective quality. Id. Alternatively, they may be unreliable because they were

2019] REVIEW LAW 1289

visible.

187

Perhaps, with that increasing visibility, members of the

public will begin to develop a greater skepticism in the way they

read online reviews.

As with a letter to the editor, “any damage to reputation done

by” an online review “generally depends on its inherent

persuasiveness and the credibility of the writer.”

188

Moreover,

those being reviewed often have the opportunity to respond, and

sometimes publicly on the same webpage where the review was

posted.

189

Thereby, the target of a review that may be false or

defamatory may have an opportunity to demonstrate its falsity, or,

at least, to present a conflicting narrative. Further, a reviewed

party may even reach out to the reviewer and attempt to publicly

address the grievance, which, if done earnestly, could counteract

the negative impact of the review.

190

Thus, where this option is

available, as it is on several popular review sites,

191

the negative

impact of a review may be mitigated without reliance on litigation.

Therefore, victims of alleged defamation in the online review

context are often less vulnerable than those who are defamed in

contexts where such a response is neither as easy nor as effective.

Regardless, online consumer review sites serve as a platform

for New Yorkers, like Ms. Levine, to exercise their free speech

rights. Although the critical views expressed in that forum may

be harmful to some, the New York Constitution gives reviewers

the right to express their opinions without the fear of

speech-chilling litigation.

192

Following the decisions in Immuno

and Davis, and with support from Torati and Crescendo, New York

courts are well positioned to protect that right by extending special

consideration to the online consumer review context. This would

make findings that such reviews are nonactionable opinion more

likely at the summary disposition stage.

bought and paid for. Id.; Lauren Dragan, Let’s Talk About Amazon Reviews: How We

Spot the Fakes, WIRECUTTER (May 13, 2016), https://thewirecutter.com/blog/lets-talk-

about-amazon-reviews/.

187

See Beaton, supra note 139; Nicole Nguyen, Inside Amazon’s Fake Review

Economy, BUZZFEED NEWS (May 7, 2018), https://www.buzzfeednews.com/article/

nicolenguyen/amazon-fake-review-problem#.fjMKL3yND; Reply All: #124 the Magic

Store, GIMLET MEDIA (July 12, 2018), https://www.gimletmedia.com/reply-all/124.

188

Immuno AG. v. Moor-Jankowski, 77 N.Y.2d 235, 252–53 (1991).

189

See supra notes 134–141 and accompanying text.

190

Greenberg, supra note 137.

191

See supra notes 134–141 and accompanying text.

192

See supra Section III.A.

1290 ST. JOHN’S LAW REVIEW [Vol. 93:1267

CONCLUSION

Although the litigation between Dr. Song and Ms. Levine may

not be the online consumer review case to reach the New York

Court of Appeals, New York courts should be on the lookout for the

opportunity that such a case provides. The case raises issues that

are relevant to many New Yorkers and many Americans. Indeed,

a majority of Americans at least sometimes post reviews online

about products or services.

193

When those reviews are unflattering

or critical, do they really justify the dramatic response of

defamation litigation?

If the Court of Appeals were to extend its opinion

jurisprudence regarding the letter to the editor context to online

consumer reviews, it would do a great deal to protect online

consumers’ free speech rights. Although some victims of critical

or even false online reviews may be less likely to bring meritorious

claims, resorting to litigation is not necessarily the most

productive way to deal with this kind of harmful speech. In some

ways, it has not worked out so well for Dr. Song. As his First

Amended Complaint states, news of his action against Ms. Levine

has led to even more negative reviews.

194

“On numerous review

sites, Plaintiffs’ total rating has suffered sharp declines, as users

who have never been Plaintiffs’ patients react to Ms. Levine’s false

narrative of a litigious and greedy business trying to silence an

individual for merely expressing her opinion on Yelp.”

195

Therefore, it seems that initiating defamation litigation over an

online review may risk damaging the reviewed party’s reputation

as much as, or more than, the negative review itself.

Therefore, a final argument for protecting online reviewers

from defamation litigation is that doing so would not only

discourage litigation but also encourage alternatives that may

foster less animosity, lead to more productive consumer

relationships, and keep more reputations intact. Many review

websites give the targets of reviews an opportunity to respond or

reach out to their reviewers.

196

Because doing so can negate the

damage done by a negative review,

197

it seems that this context is

193

SMITH & ANDERSON, supra note 131, at 14.

194

First Amended Complaint, supra note 16, at 23.

195

Id. at 25. In fairness, Ms. Levine has faced unwanted attention herself, most

notably in the form of anti-Semitic comments left on the webpage of a Korea Daily

article, which interviewed Dr. Song. See Defendant’s Exhibit C, supra note 13.

196

See supra notes 134–140 and accompanying text.

197

Greenberg, supra note 137.

2019] REVIEW LAW 1291

ideal for using counter-speech to cure potentially damaging

speech. Indeed, responding to negative reviews with customer

outreach, rather than with costly and time-consuming litigation,

may lead to better outcomes for all involved. Thus, New York

courts are justified in finding that statements in the online review

context, like statements in letters to the editor, will most likely

constitute nonactionable opinion, and should often be protected

as such.