Upset by the "horrific breasts" a plastic surgeon had allegedly given her, a woman took to Yelp. Now she and other dissatisfied customers are facing a defamation lawsuit.
According to ABC, former patients of Dr. Jay Pensler wrote criticisms on Yelp and Citysearch like, "MY BREASTS LOOK LIKE SOMETHING OUT OF FREDDY CRUGER'S MOVIE!!!!!!!" and "I had surgery done by him and my breasts are ugly and uneven. I will need additional surgery to fix them." Another poster said Pensler had given her "Frankenstein breasts." Pensler's lawyer subpoenaed records from the website and traced some of the comments back to three women: Elaina Bender, Lisa Cuevas, and an unnamed plaintiff. Pensler's lawyer says, "It's one thing for people to express their opinions in a responsible way and they're entitled to be critical if they choose to be critical. But people are not permitted to make up stories or make up false statements that attack people and are defamatory."
It's not clear where the line between responsible criticism and defamation lies, though. Expressions of opinion are sometimes protected from defamation lawsuits, but law professor Danielle Citron explains to ABC that "while it's disputed that calling someone is 'dangerous' is fact or opinion, it could be argued that 'dangerous' is also defamatory." One watertight defense against defamation is to prove your statements are actually true, and that seems to be the tack at least one of Pensler's disgruntled patients is taking. Says Carol Oshana, Elaina Bender's lawyer, "She was humiliated by the results of her breasts. Her breasts are just horrific."
Whether or not Pensler's suit requires a court to evaluate the "horrificness" of a plaintiff's breasts, the case has disturbing implications for all users of services like Yelp and Citysearch. It's not the first time Yelp has been involved in a defamation lawsuit — last year, CNET reported that chiropractor Steven Biegel sued Christopher Norberg for posting a negative about him. The case ended up settling, and after the settlement, Norberg replaced his earlier Yelp review with this somewhat creepy statement:
A misunderstanding between both parties led us to act out of hand. I chose to ignore Dr. Biegel's initial request to discuss my posting. In hindsight, I should have remained open to his concerns. Both Dr. Biegel and I strongly believe in a person's right to express their opinions in a public forum. We both encourage the Internet community to act responsibly.
Describing the Pensler case, Citron points out that, "potentially, the people writing are trying to protect other women but, at the same time, there are huge stakes for folks whose professions are about trust and professionalism and expertise." Indeed, Yelp is a double-edged sword — it makes sense that businesses would want to protect themselves from online lies about them, but at the same time, the idea that you can be sued just for posting a negative review on a website is a little chilling. If they go unchecked, defamation lawsuits like Pensler's could make Yelp users afraid to post negative reviews at all. However, there may be some natural checks already in place against such suits. Aaron Larson of ExpertLaw points out,
The publicity that results from a defamation lawsuit can create a greater audience for the false statements than they previously enjoyed. For example, if a newspaper or news show picks up the story of the lawsuit, false accusations that were previously known to only a small number of people may suddenly become known to the entire community, nation, or even to the world. As the media is much more apt to cover a lawsuit than to cover its ultimate resolution, the net effect may be that large numbers of people hear the false allegations, but never learn how the litigation was resolved.
Before the lawsuit, only people who visited Pensler's Yelp page knew someone had accused him of giving a patient "Frankenstein breasts." Now ABC's national audience may associate him with that none-too-flattering term — and they may not hear about it if he wins his suit. Presumably Pensler has decided that it's worth it — but just as his case may give Yelpers pause, it might also cause other angry business owners to think before they sue.
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