QUESTION: Can I be sued for what I post on Yelp?

A Reader asks via email:

Dear Ask a Cyber Lawyer:

I recently had a routine checkup by a local dentist whom I will not name.  During the cleaning, the dentist cut up the gum on a molar causing pain and an exposed nerve.  I want to tell everyone about my experience on Yelp.com, and give a negative review.  If I give a negative review I be sued by the dentist?

Amazingly enough, if you post a negative review on Yelp, you can get sued.  It is pretty easy to construct a lawsuit for defamation or for interference with business.  However, a better question is “Will I get sued?”, and the answer to that is almost clearly a resounding “No”.  Why?  Because the person suing you is likely to lose, and in most states, they are likely to lose even before it is heard by a judge.  In those states, the Plaintiff will then have to pay the defendant’s legal fees.

I actually wrote a blog post about this very subject a few months ago, and in that post, the plaintiff was a dentist.

Here is the situation.  The type of suit the Dentists office would attempt to file is called a Strategic Limitation Against Public Participation or SLAPP suit.  These are usually in the form a a claim of defamation, invasion of privacy, or unfair business practices.  What happens is the defendant will legitimately criticize the plaintiff in the public forum.  The plaintiff will then sue the defendant, knowing full well they will probably lose in the long run.  If they are going to lose, why sue?  They sue to shut up the defendant.  Lawsuits are expensive to defend, so they know that the mere filing of a lawsuit will induce a settlement by which the defendant will sign a non-disclosure or non-disparagement settlement just to avoid the cost of defending the lawsuit.

To combat this, a majority of states have enacted an Anti-SLAPP legislation which are designed to make SLAPP suits, easy and cheap to defend, and costly to pursue.    The way this is done is the defendant files a motion stating that the speech was constitutionally protected.  If the judge accepts the motion, the burden shifts to the plaintiff to prove that the speech was somehow NOT constitutionally protected.  If the plaintiff cannot do this, then the case is dismissed immediately and the plaintiff has to pay the defendants legal fees.

So far 30 states have enacted anti-SLAPP legislation, and a majority of the remainder have some sort of proposed anti-SLAPP legislation.