Your professional reputation can be just as fragile as a socialites honor in the 10th century salons of Paris. Protect yourself.
John Singer Sargent's portrait of “Madame X” after he repaired the faulty strap. What's the best legal response to negative or defamatory online postings to sites like Yelp or Facebook? As it happens, a few clues may lie in the 19th century scandal of Madame X and the Paris Salon, the official art exhibition of the Académie des Beaux-Arts in Paris.
The Royal Ballet of London dramatized the story of Madame X in a new production called “Strapless.” Ironically, the story line of “Strapless” amounts to a 19th century version of the topic veterinarians can relate to: the importance of protecting your reputation.
In a nutshell, Virginie Amélie Avegno Gautreau was the American socialite wife of a well-known French banker in 1884. “Madame X,” as she came to be known in Parisian high society, was a ravishing beauty, and artists competed for the honor of painting her portrait.
A closer look at the portrait that launched "Strapgate." John Singer Sargent was the portraitist who won the competition and he produced an elegant but provocative painting of the beautiful Gautreau, which went on display at the high-brow Paris Salon. The portrait showed Madame X with one strap of her gown dangling off her shoulder. Parisian society was aghast at the salaciousness of the image. Although the artist repainted the piece in short order, fair Virginie was immediately and forever after deemed a pariah by the European upper class.
Fast-forward to today's world where the effective equivalent of the Paris Salon is the Internet. And whereas the reputation of Gautreau was ruined through the artistic interpretation of an American painter whose work inaccurately implied that his subject was promiscuous, a 21st century false comment about a veterinarian can damage or destroy a reputation, a practice and a livelihood.
Today's reputation damage is more problematic
Artist Sargent was known to the public, and the identity of each person who viewed the painting at the Paris Salon was well-known by all. Sargent graciously repainted the errant strap forthwith. He never intended to impugn the reputation of his subject but, alas, the damage to Madame X's reputation was done. Gautreau was finished within the halls of French society: a pure and simple victim of unintended consequences.
With that said, remember that victims of online disparagement don't enjoy the benefit of any of the potentially mitigating circumstances surrounding the “Strapless” debacle. Online postings that injure a veterinarian's reputation are often entirely anonymous. They often are also mean-spirited or downright vindictive. Further, the identity of persons viewing online derogatory content is unavailable to its victim. Speaking plainly, false online postings about a professional person or practice are carried out by “cyber-snipers” who target unsuspecting individuals and their reputations. This nameless, faceless sniping kills hard-earned public trust, using words instead of bullets.
Dueling is out. So what can you legally do?
The Internet is in its infancy, and the laws and regulations designed to control its improper use are even younger. Technology is expanding faster and further than government and private efforts to control its use. This is a reality not only with respect to libel and slander but for online predatory activity and hate speech as well as a panoply of other distasteful content.
When veterinarians or their practices become the subject of false online disparagement, it's important to take the problem under due consideration. Consider legal action with an eye toward the difficulty and potential reward of undertaking it. The potential victims and litigants should also carefully weigh the possibility of cyber-retaliation by friends and family of the target of any lawsuit.
And one more thing. Remember that prosecuting a claim for libel or slander-slander being verbal (think YouTube) and libel being written (think Yelp)-is difficult even when you know the perpetrator's identity. The considerable anonymity of the web makes a difficult claim even more difficult to pursue.
The elements of a claim for Internet disparagement
OK, let's assume that you know who posted a derogatory review or statement about you or your practice. There are several elements to meeting the initial threshold for a libel or slander claim.
To be actionable, the statement must be published (seen or heard by a third party), it must be false and it must be damaging to the reputation or financial well-being of the subject. That may sound simple enough, but consider the hurdles that exist in attempting to prove these elements.
Publication. This is probably the least difficult to prove. The veterinarian will likely get word of the derogatory posting from a client or an employee who saw it. But knowing who received the allegedly illegal message is one thing: compelling their testimony in a case against the writer is another. That may require a subpoena or other method to compel a witness to prove the publication requirement. And if Suzy saw Jessica's post on Facebook, there's a fair chance that compelling Suzy to testify against her “Facebook friend” may result in its own “mini-scandal” and additional damage to the plaintiff-doctor's local reputation.
Falsity. At first blush it might not seem difficult to demonstrate in court that a posting contained false accusations. But it's actually much more complicated than merely demonstrating that a published Internet comment is hurtful, inappropriate or even damaging. Remember, the standard that must be met in a veterinarian's legal complaint is that the negative statement was false.
So which of these statements is false?
• Dr. Jones euthanized my cat without my permission. (The husband was co-owner and had authority to have the cat euthanized.)
• Dr. Jones didn't give me the most effective antibiotic for my pet. (The writer had a budget and couldn't afford the proprietary medication originally suggested by Jones.)
• Dr. Jones killed my dog. (The surgery had a high likelihood that the patient wouldn't survive the procedure and the owner signed off on the surgery.)
• Dr. Jones committed malpractice with respect to my pet. (This can be pleaded and proven to be false.)
• Dr. Jones should have given my cat much better treatment. (This is an opinion, not a fact, true or false. Consequently, it is protected by the First Amendment.)
Damages. There's no doubt that false, derogatory statements can hurt a veterinarian's reputation and income. But how does the veterinarian demonstrate a correlation between the alleged Internet lie and a loss of patients or potential patients? It's tough.
The number of visitors to a “local veterinarian's” page within a website such as Yelp, even visits originating in a specific community, may be relatively easy to uncover from the company that hosts the site. Chances are a plaintiff would need a court order to obtain that information, but it's possible to obtain.
But how do you go about establishing that a customer left Dr. Jones because of something she read about him on a website or because her visit to that site revealed that a competitor had particularly glowing reviews?
The biggest hurdle: Anonymity
You can sue when a false and derogatory statement is made on social media. But the biggest hurdle can be the first hurdle: How do you figure out who to sue?
Let's assume that Dr. Jones has just plain had enough of a certain client who he suspects is firstname.lastname@example.org. Well, suspicion isn't proof, and determining the identity of that client may require a court action brought against the website where the disparaging statements were posted.
Websites themselves are protected by law against liability for much of the content posted by subscribers. But it's possible to successfully obtain the identity of an anonymous contributor to a page. That said, social media websites are notoriously protective of their customers' rights both to legally protected speech and privacy. So if you elect to pursue legal action against someone for posting defamatory language online, you may have to prepare for some significant up-front expenses.
Christopher J. Allen, DVM, JD, is president of the Associates in Veterinary Law PC, which provides legal and consulting services exclusively to veterinarians. He can be reached via e-mail at email@example.com.