A little SF personal injury case threatens 'most important law' on the Internet(latimes.com)
latimes.com
A little SF personal injury case threatens 'most important law' on the Internet
http://www.latimes.com/business/hiltzik/la-fi-hiltzik-online-publishers-20160909-snap-story.html
13 comments
It may depend on your jurisdiction, but I don't think in most jurisdictions it is any harder to collect a judgment from small clams court than it is any other judgment... but I know from personal experience how hard it can be to collect a judgment! (Though in my case, after a lot of perseverance, time and money, I was able to finally collect- and even if it wasn't worth the time, I would probably do it over again, for the experience and for the fact that I believe it will help keep the same person from ripping off someone else in the future- someone else that may not be able to fight back.
Since sites like facebook seem to be taking more of an active role in censoring/curating comments and content, it seems like this exemption would no longer apply to them at some point.
As the law currently stands, no. You can take an active role in curating comments and still be protected. You can even build a business model around charging people to remove defamatory information about them from your site, and Section 230 not only protects you from liability, it protects your business model by preventing the courts from forcing you to remove that content. A number of companies such as RipoffReport.com have built up very successful businesses around this model, and it's that which is endangered by this lawsuit.
> it protects your business model by preventing the courts from forcing you to remove that content.
Well, than Section 230 is simply wrong. It's important not to hold Yelp responsible for what a user wrote on his forum, but I fail to see how it can be damaging for a site to delete some unlawful-ruled content (which it didn't create), apart from the immoral case you named.
Well, than Section 230 is simply wrong. It's important not to hold Yelp responsible for what a user wrote on his forum, but I fail to see how it can be damaging for a site to delete some unlawful-ruled content (which it didn't create), apart from the immoral case you named.
> Well, than Section 230 is simply wrong.
Wrong as drafted, wrong as interpreted or wrong conceptually?
Laws are what they are - there's really no right or wrong about them.
> I fail to see how it can be damaging for a site to delete some unlawful-ruled content
It's not damaging to remove it. It's damaging to be compelled to remove it. Handing the judiciary this tool to make such orders opens the door to all sorts of down-court mischief.
If the goal is simply the effect in this one case, then order the poster to take it down and Section 230 stands unmolested. But that's not the goal, or it would be done that way already. The goal (for some parties) is handing the tool-to-compel to the judiciary.
Wrong as drafted, wrong as interpreted or wrong conceptually?
Laws are what they are - there's really no right or wrong about them.
> I fail to see how it can be damaging for a site to delete some unlawful-ruled content
It's not damaging to remove it. It's damaging to be compelled to remove it. Handing the judiciary this tool to make such orders opens the door to all sorts of down-court mischief.
If the goal is simply the effect in this one case, then order the poster to take it down and Section 230 stands unmolested. But that's not the goal, or it would be done that way already. The goal (for some parties) is handing the tool-to-compel to the judiciary.
The problem with that is that's putting Yelp into the position of censoring content.
If the court thinks that a review is defamatory, they should just order the reviewer to take it down. No need to involve Yelp at all.
If the court thinks that a review is defamatory, they should just order the reviewer to take it down. No need to involve Yelp at all.
> they should just order the reviewer to take it down
What if the reviewer refuses? No matter the fine, no matter the years in jail they may spend, this will not fulfil the plaintiff's right to have that comment removed.
What if the reviewer refuses? No matter the fine, no matter the years in jail they may spend, this will not fulfil the plaintiff's right to have that comment removed.
Sometimes remedies are imperfect. If someone is willing to spend the rest of their life in jail for contempt of court, that's not a reason to start looking for other methods of enforcement, that's a reason to be glad they're out of your life.
No, it's not Yelp censoring, it's the judge. Yelp has not been asked/permitted to choose for this ore other posts.
You say that like Yelp doesn't already self-censor to suit it's business needs.
That's completely orthogonal.
Yelp is not required to run a neutral public forum—they can institute whatever policies they want. The problem is when the government forces censorship, not when private companies have their own policies on what they'll host.
Removing content from your own site is not censorship.
Yelp is not required to run a neutral public forum—they can institute whatever policies they want. The problem is when the government forces censorship, not when private companies have their own policies on what they'll host.
Removing content from your own site is not censorship.
They are only able to publish libelous user content and NOT be sued due to government extended protections. To then turn around and cry foul when a legal ruling of libel (against one of their users) includes a provision that they remove the libelous content is ridiculous.
> when the government forces censorship
Actually, in this case, it's the justice, not the government. At it makes a huge difference!
Actually, in this case, it's the justice, not the government. At it makes a huge difference!
there are three branches of US government and the judiciary is one of them.
Sorry, I had read "government" as meaning "executive power". Anyway, I don't see any problem in having justice-sanctioned removal orders for unlawful posts.
I don't understand the reasoning there. (Nor did the appeals court, it seems.)
Being immune from liability for what users post is not the same being able to ignore a court order.
Being immune from liability for what users post is not the same being able to ignore a court order.
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B.S.
this is orders of magnitude less significant than big studios removing random youtube videos from the air, accusing them of copyright infringement, even ones that have no background music, just because it says bad things about something the studio worked on.
this is orders of magnitude less significant than big studios removing random youtube videos from the air, accusing them of copyright infringement, even ones that have no background music, just because it says bad things about something the studio worked on.
Actually, this is far more significant than YouTube videos being taken down. If Yelp loses, this case could make it possible for pretty much any site that accepts user comments, including YouTube, social networks like Facebook, review sites, advertising sites like Craiglist, and even personal blogs with comment sections, to be held accountable for what users post.
That could lead to a significant amount of prior restraint which would have the effect of restricting online speech in places where it is most useful. That would be much further-reaching than anything YouTube does.
That could lead to a significant amount of prior restraint which would have the effect of restricting online speech in places where it is most useful. That would be much further-reaching than anything YouTube does.
Where did you get that from?
The article says that Yelp has been ordered by a judge to remove a few posts that have been found libelous. Yelp is refusing.
Nowhere does it say that Yelp was "held accountable" for anything.
It's also not a case of prior restraint since it happened after a trial and a verdict.
The sky is not falling.
The article says that Yelp has been ordered by a judge to remove a few posts that have been found libelous. Yelp is refusing.
Nowhere does it say that Yelp was "held accountable" for anything.
It's also not a case of prior restraint since it happened after a trial and a verdict.
The sky is not falling.
> The article says that Yelp has been ordered by a judge to remove a few posts that have been found libelous. Yelp is refusing.
Yelp was not a party to the case.
> It's also not a case of prior restraint since it happened after a trial and a verdict.
Yelp was ordered to do something, but Yelp did not receive any opportunity for a trial.
Yelp was not a party to the case.
> It's also not a case of prior restraint since it happened after a trial and a verdict.
Yelp was ordered to do something, but Yelp did not receive any opportunity for a trial.
Yelp benefits from the safe harbour provisions by not being the originator of the comments. Being legally ordered to remove a comment in no way threatens that provision.
A trial to which they're not a named party still shouldn't be able to issue them such a court order.
You seem to have thought more about these issues than I have. I don't see why it should matter if Yelp is a named party. Is it because this is civil and not criminal? Let me try a few parallels, and perhaps you can point out the flaws.
Someone posts my original work to Youtube. I sue the individual, and the court agrees that posting was illegal and orders the plaintiff to remove it. The plaintiff says that they no longer have the password. The court sends an order to Youtube saying that the should take it down. Now, there's a special procedure for this under the DMCA if the claim is copyright infringement, but are you saying that Youtube should be able to ignore the court order?
An identity thief applies for credit cards in my name. They are convicted, and the court orders the bank to cancel the credit card account that was fraudulently obtained. The bank is not a named party. Would you say that the bank should keep account until I sue them separately?
A children's toy is badly constructed and dangerous. The manufacturer is sued by an aggrieved parent. A court makes an award to the parent, and orders that sales of the toy be halted. All resellers receive a court order telling them to stop selling the product. Should they comply?
I'm not seeing the hazard in having companies obey court orders even if they are not named parties. Presumably there is a process where they can refuse and get a court hearing about the validity of the order? Or is the issue that there is no such process?
Edit:
I'm reading Volokh's amicus now (https://assets.documentcloud.org/documents/3038335/Hassell-v...), which makes it clearer that the distinction is something like "because speech is different". I don't really understand his argument, though, or why he keeps using "allegedly libelous" to describe something a court has found to be libelous.
I think it's because he's arguing that the collection of comments (or reviews) published by Yelp is contextually different than the individual comment, and that one may be libelous and the other not. While there is some truth to this, I think there is a difference between a conscious compilation, and a "bulletin board" type system where posters can add whatever they wish without review.
Someone posts my original work to Youtube. I sue the individual, and the court agrees that posting was illegal and orders the plaintiff to remove it. The plaintiff says that they no longer have the password. The court sends an order to Youtube saying that the should take it down. Now, there's a special procedure for this under the DMCA if the claim is copyright infringement, but are you saying that Youtube should be able to ignore the court order?
An identity thief applies for credit cards in my name. They are convicted, and the court orders the bank to cancel the credit card account that was fraudulently obtained. The bank is not a named party. Would you say that the bank should keep account until I sue them separately?
A children's toy is badly constructed and dangerous. The manufacturer is sued by an aggrieved parent. A court makes an award to the parent, and orders that sales of the toy be halted. All resellers receive a court order telling them to stop selling the product. Should they comply?
I'm not seeing the hazard in having companies obey court orders even if they are not named parties. Presumably there is a process where they can refuse and get a court hearing about the validity of the order? Or is the issue that there is no such process?
Edit:
I'm reading Volokh's amicus now (https://assets.documentcloud.org/documents/3038335/Hassell-v...), which makes it clearer that the distinction is something like "because speech is different". I don't really understand his argument, though, or why he keeps using "allegedly libelous" to describe something a court has found to be libelous.
I think it's because he's arguing that the collection of comments (or reviews) published by Yelp is contextually different than the individual comment, and that one may be libelous and the other not. While there is some truth to this, I think there is a difference between a conscious compilation, and a "bulletin board" type system where posters can add whatever they wish without review.
First of all, I don't think it's reasonable to distinguish here between a "company" and any other third party; the third party could just as easily be an individual. Consider, for instance, a forum or site run by an individual.
A party to a trial (such as a named defendant) is afforded a variety of rights. Among many others, they receive legal notice of the case with sufficient time to prepare, can face their accuser in court, can defend themselves, provide testimony, file legal documents and motions, and many other things an interested party might wish to do. A third party doesn't automatically get those rights.
> Presumably there is a process where they can refuse and get a court hearing about the validity of the order? Or is the issue that there is no such process?
The issue is the default assumption that they must comply, rather than the usual innocent-until-proven-guilt process (or, in a civil case, preponderance-of-the-evidence). Consider a third party who received no legal notice of the existence of the case, has no opportunity to prepare or offer any defense, who effectively has the case decided in absentia, and who first hears about the case when they get a court order requiring them to do something. That doesn't seem reasonable.
(As with any generalization like this, some exceptions might apply. But that's the kind of thing court procedures like preliminary injunctions exist for: "something irreparable will happen if they don't stop now, before the case concludes". So even then, I think it makes sense for the third party to be a party to the case and for them to have the opportunity to challenge the preliminary injunction just as any other defendant could.)
If they want to overturn that court order, they can potentially do so, but the default assumption is that they must immediately comply with it or face legal penalties themselves. And depending on the nature of the court order, often they must comply while pursuing their own legal action, rather than having the opportunity to make a case in advance.
All that said, a third party may wish to voluntarily cooperate, in a case where they agree with the matter (or don't disagree and don't want the fight). And in some cases, they may have individual liability if they don't; for instance, a reseller of a recalled toy may themselves face liability if they don't cooperate with the recall, while they may have some legal protection or defense if they do cooperate.
A party to a trial (such as a named defendant) is afforded a variety of rights. Among many others, they receive legal notice of the case with sufficient time to prepare, can face their accuser in court, can defend themselves, provide testimony, file legal documents and motions, and many other things an interested party might wish to do. A third party doesn't automatically get those rights.
> Presumably there is a process where they can refuse and get a court hearing about the validity of the order? Or is the issue that there is no such process?
The issue is the default assumption that they must comply, rather than the usual innocent-until-proven-guilt process (or, in a civil case, preponderance-of-the-evidence). Consider a third party who received no legal notice of the existence of the case, has no opportunity to prepare or offer any defense, who effectively has the case decided in absentia, and who first hears about the case when they get a court order requiring them to do something. That doesn't seem reasonable.
(As with any generalization like this, some exceptions might apply. But that's the kind of thing court procedures like preliminary injunctions exist for: "something irreparable will happen if they don't stop now, before the case concludes". So even then, I think it makes sense for the third party to be a party to the case and for them to have the opportunity to challenge the preliminary injunction just as any other defendant could.)
If they want to overturn that court order, they can potentially do so, but the default assumption is that they must immediately comply with it or face legal penalties themselves. And depending on the nature of the court order, often they must comply while pursuing their own legal action, rather than having the opportunity to make a case in advance.
All that said, a third party may wish to voluntarily cooperate, in a case where they agree with the matter (or don't disagree and don't want the fight). And in some cases, they may have individual liability if they don't; for instance, a reseller of a recalled toy may themselves face liability if they don't cooperate with the recall, while they may have some legal protection or defense if they do cooperate.
Would you feel the same way if two of your neighbors were having a dispute in court about one neighbor's kid trespassing on the other neighbor's property, and the judge decided to order you to pay $2000 because the kid is running through your yard to do it?
No, but I think that's an irrelevant strawman. Unless maybe you were issued a fine for a violation that was brought to light in the other trial, but I still struggle to see the relevance. Maybe you could flesh out your example a bit with reference to Volokh's amicus (which I think is better reading than the LA Times article) or some of the precedents it cites?
I don't have a strong opinion here. I presumed I was missing some of the backstory, and was asking Josh because I respect his opinion on technical matters and wondered what made him seem so certain that this was an important principle to preserve.
As I look deeper, I think the key the "must uphold" side is the belief that choosing to quote another is an independent speech act, and needs independent consideration. Unlike copyright or dangerous products, libel is considered a purely civil affair, and thus does not have the same remedies that those do. My doubt is whether an "aggregator" site without independent editorial voice should be entitled to this protection.
I don't have a strong opinion here. I presumed I was missing some of the backstory, and was asking Josh because I respect his opinion on technical matters and wondered what made him seem so certain that this was an important principle to preserve.
As I look deeper, I think the key the "must uphold" side is the belief that choosing to quote another is an independent speech act, and needs independent consideration. Unlike copyright or dangerous products, libel is considered a purely civil affair, and thus does not have the same remedies that those do. My doubt is whether an "aggregator" site without independent editorial voice should be entitled to this protection.
I didn't say this was prior restraint. I said it could lead to prior restraint. So does the article, and so does common sense -- if companies can be hauled into court whenever someone posts libel on their sites, they will take steps to prevent such libel from being posted in the first place, e.g. by proactively moderating and filtering negative reviews. The article explicitly addresses this possibility.
Perhaps you should read the article to the end before commenting:
"Glassdoor.com, which posts anonymous employee comments about companies to inform job-seekers about working conditions, says the ruling began to show up in letters demanding the removal of comments and disclosure of users’ identities almost immediately after it was handed down."
"Glassdoor.com, which posts anonymous employee comments about companies to inform job-seekers about working conditions, says the ruling began to show up in letters demanding the removal of comments and disclosure of users’ identities almost immediately after it was handed down."
This supports my point that sites can be held accountable for users' posts. It certainly does not undermine my point in any way. And I did read the entire article, and I understood it, thank you very much. You should apologize for suggesting that I did not.
EDIT: nevermind, the response was in the wrong part of the thread.
EDIT: nevermind, the response was in the wrong part of the thread.
No problem you can just sue and get the judge compel HN to publish the apology.
I'm pretty confident that Glassdoor received these sorts of letter both before and after this case was publicized. In all cases, they need not take any action unless it happens to be a court order. I don't think being compelled to remove a post that has been judged unlawful in court effects Yelp's "immunity"; no one is holding Yelp accountable for the unlawful posts.
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Yelp was not hauled into court. The poster was the one hauled into court.
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the court was not holding yelp accountable, they asked yelp to remove a post that a jury found to be criminal.
YouTube silences you without a court order or anything.
YouTube silences you without a court order or anything.
What you are describing is a problem that exists only in the domain of Googles DMCA handling policies. The Yelp issue is in the domain of US law.
I don't know why most of the comments on here, so far, are so nonchalant about this.
> Hassell sued Bird for libel and won a judgment for more than $550,000 in damages and costs, as well as an injunction ordering Bird to remove the ostensibly defamatory material from Yelp
This is fucking nuts. How can someone be sued for $550K for writing a bad yelp review.
Can someone please explain why the law allows for ridiculous damages like this.
If this is allowed, I would wipe my online identity and live in Tor permanently.
> Hassell sued Bird for libel and won a judgment for more than $550,000 in damages and costs, as well as an injunction ordering Bird to remove the ostensibly defamatory material from Yelp
This is fucking nuts. How can someone be sued for $550K for writing a bad yelp review.
Can someone please explain why the law allows for ridiculous damages like this.
If this is allowed, I would wipe my online identity and live in Tor permanently.
I think this probably happens much more frequently than people may realize.
I once gave a doctor a bad Yelp review and was very careful to avoid stating anything that could be claimed as libel - I only stated very specific and accurate facts and my opinions of them. They still seemed to try to come after me for libel (but quickly gave up).
Interestingly, I had even used a throwaway email address and Yelp account. But, they still tracked me down. I'm guessing that maybe they had Yelp pull the server logs, but I don't really know.
My Yelp review was then hidden. And, the Doctor responded directly to my review, calling me out by name and essentially calling me a liar (I wasn't). I certainly didn't want to get messed up with a legal case, so I ignored it. However, it was a very startling experience.
I once gave a doctor a bad Yelp review and was very careful to avoid stating anything that could be claimed as libel - I only stated very specific and accurate facts and my opinions of them. They still seemed to try to come after me for libel (but quickly gave up).
Interestingly, I had even used a throwaway email address and Yelp account. But, they still tracked me down. I'm guessing that maybe they had Yelp pull the server logs, but I don't really know.
My Yelp review was then hidden. And, the Doctor responded directly to my review, calling me out by name and essentially calling me a liar (I wasn't). I certainly didn't want to get messed up with a legal case, so I ignored it. However, it was a very startling experience.
> the Doctor responded directly to my review, calling me out by name and essentially calling me a liar (I wasn't)
That seems likely it would violate HIPAA in some way...
That seems likely it would violate HIPAA in some way...
We have a plastic surgeon, in in my county, that pissed off a lot of patients. She must have over 50 negative reviews. Well she sued most of them. I think the lawyer sued 45 of them. The judge ruled against all the lawsuits. All thrown out of court.
Now, the physician resorts to describing what was physically wrong with the patient online in a rebuttal. For instance, "Susan--you seemed happy when we removed those ugly brown spots I removed?"
I've been suprised she hasen't been accused of voilating HIPPA either.
I don't use Yelp. I honestly try to stay away from most doctors--just don't like most of them. Out of all the professions, MD's seem to dislike Yelp the most. Gone are the days where they can treat patients like dirt, and the patient has no recourse--other than dying. It's too bad that physicians are so arrogant. I don't get it. The last twenty years have exposed the profession to be so much of an art?
(I do try to recognize the Doctor who is taking on hard cases, and give that Doctor a large benefit of the doubt. For instance, the medi-cal Doctor gets a get out of jail free card, but most of the negative reviews are for the doctors who are charging $350.00 hr, in good areas of the county?)
Now, the physician resorts to describing what was physically wrong with the patient online in a rebuttal. For instance, "Susan--you seemed happy when we removed those ugly brown spots I removed?"
I've been suprised she hasen't been accused of voilating HIPPA either.
I don't use Yelp. I honestly try to stay away from most doctors--just don't like most of them. Out of all the professions, MD's seem to dislike Yelp the most. Gone are the days where they can treat patients like dirt, and the patient has no recourse--other than dying. It's too bad that physicians are so arrogant. I don't get it. The last twenty years have exposed the profession to be so much of an art?
(I do try to recognize the Doctor who is taking on hard cases, and give that Doctor a large benefit of the doubt. For instance, the medi-cal Doctor gets a get out of jail free card, but most of the negative reviews are for the doctors who are charging $350.00 hr, in good areas of the county?)
I'm sorry you have had such bad experiences with doctors.
Doctors dislike review sites in general. The reason is that, in the age of the Internet, patients think they know everything. A lot of them go to the doctor and demand a prescription for a certain drug because they read on the Internet that it would cure their condition. When the doctor refuses (for obvious reasons) the patient gives them a 1-star review.
That's just one example of how patients can be real assholes and why doctors don't like review sites.
Doctors dislike review sites in general. The reason is that, in the age of the Internet, patients think they know everything. A lot of them go to the doctor and demand a prescription for a certain drug because they read on the Internet that it would cure their condition. When the doctor refuses (for obvious reasons) the patient gives them a 1-star review.
That's just one example of how patients can be real assholes and why doctors don't like review sites.
Of course there are bad doctors but anonymous review sites are manna from heaven for assholes.
Patients who complain the loudest, for example, about being kept waiting are commonly the ones who demand an appointment at the drop of a hat. The same patients will fail to attend appointments or cancel after the event. If they are fitted in because of an 'emergency' they are unhappy when people already waiting are seen before them.
And, of course, they prefer to be sent a bill rather than pay on the day.
Doctors' receptionists have a reputation for being a bit hard-faced but they don't start out that way.
A small percentage of heart-sink patients do their best to ruin it for everyone else.
The practice of medicine has always been an art, notwithstanding availability of advanced diagnostic and treatment technologies. Of course it's an art based in science. However, in truth, the science is not fully developed in many if not most disorders, leaving providers to try to help with the limited tools at their disposal.
Providing care is finding the delicate balance among sciences and arts, inevitably there are ambiguous tests, marginally effective treatments, rare/impossible to predict side-effects and frequent backtracking to try yet another option. Some patients will misconstrue this less than ideal algorithm as mistreatment even when informed it represents the imperfect state of the art.
Certain perfectionistic individuals make unrealistic demands of care providers and may complain bitterly about less than optimum outcomes. Most patients aren't like that, but a few are. The notion that patients are "treated like dirt" these days is an unreasonably broad assertion that shouldn't be accepted without substantial evidence.
No doubt there are occasional providers who are less than competent, notably unempathetic, mean-spirited, etc. There are ways to complain if it's warranted, medical societies and licensing bodies take these complaints very seriously. But by all means such instances deserve fair and dispassionate investigation.
It may be hard to tell which Yelp "reviews" are authentic, and which may be authored by family members or friends just to rack up bad opinion about the doctor, or against any other service for that matter.
OTOH it is unethical for a doctor to reveal anything about the patient without specific permission. I suppose write a review of the doctor's work is a tacit permission to respond, but it is always the patient's right to reveal info, but the doctor is limited in what can be said.
That may be a reason health care providers are skittish about Yelp and the like. Because of confidentiality rules, ethical practitioners can't defend themselves against exaggerated, erroneous or even false claims made in a public listing. Anyone taking Yelp "reviews" seriously is probably accepting bad advice especially when it comes to seeking services as complex and nuanced as medical care.
The arena of "reviews" by disgruntled customers seems like it's just starting to be explored by the courts. Physicians' organizations and licensing boards haven't yet addressed the questions about responding to unfair or inaccurate statements about physician or health care services. I imagine those discussions will indeed be lively.
Providing care is finding the delicate balance among sciences and arts, inevitably there are ambiguous tests, marginally effective treatments, rare/impossible to predict side-effects and frequent backtracking to try yet another option. Some patients will misconstrue this less than ideal algorithm as mistreatment even when informed it represents the imperfect state of the art.
Certain perfectionistic individuals make unrealistic demands of care providers and may complain bitterly about less than optimum outcomes. Most patients aren't like that, but a few are. The notion that patients are "treated like dirt" these days is an unreasonably broad assertion that shouldn't be accepted without substantial evidence.
No doubt there are occasional providers who are less than competent, notably unempathetic, mean-spirited, etc. There are ways to complain if it's warranted, medical societies and licensing bodies take these complaints very seriously. But by all means such instances deserve fair and dispassionate investigation.
It may be hard to tell which Yelp "reviews" are authentic, and which may be authored by family members or friends just to rack up bad opinion about the doctor, or against any other service for that matter.
OTOH it is unethical for a doctor to reveal anything about the patient without specific permission. I suppose write a review of the doctor's work is a tacit permission to respond, but it is always the patient's right to reveal info, but the doctor is limited in what can be said.
That may be a reason health care providers are skittish about Yelp and the like. Because of confidentiality rules, ethical practitioners can't defend themselves against exaggerated, erroneous or even false claims made in a public listing. Anyone taking Yelp "reviews" seriously is probably accepting bad advice especially when it comes to seeking services as complex and nuanced as medical care.
The arena of "reviews" by disgruntled customers seems like it's just starting to be explored by the courts. Physicians' organizations and licensing boards haven't yet addressed the questions about responding to unfair or inaccurate statements about physician or health care services. I imagine those discussions will indeed be lively.
When a doctor approaches their practice as a for-profit transactional business I believe they should be treated as any other similar business. If I go to a bakery and it is poorly run, or I am overcharged or mislead, or the product is of poor quality, I feel some duty to tell other potential customers. And, I feel even more strongly about for-profit doctors as well given what is at stake.
In my particular case, the doctor was one of the 'top N in large metro area' doctors. After the visit, I realized that their placement in those rankings probably had more to do with how they spent money toward advertising and marketing than providing the best possible health care.
Without public reviews, how else could a patient be able to anticipate the quality of care? Rely on boards of medicine? You have to understand that to many, the standards of those boards seems to have fallen into irrelevancy. Plus, they're not exactly impartial or unbiased anyway.
In my particular case, the doctor was one of the 'top N in large metro area' doctors. After the visit, I realized that their placement in those rankings probably had more to do with how they spent money toward advertising and marketing than providing the best possible health care.
Without public reviews, how else could a patient be able to anticipate the quality of care? Rely on boards of medicine? You have to understand that to many, the standards of those boards seems to have fallen into irrelevancy. Plus, they're not exactly impartial or unbiased anyway.
> When a doctor approaches their practice as a for-profit transactional business I believe they should be treated as any other similar business.
What is a "for-profit" business in this domain? In the classic fee-for-service model, a patient asks for a service from a physician and pays for it. The physician needs the money to keep the practice running and to buy food and shelter. You could call it a "for-profit" business like a plumber and other craftsmen, that's fair enough, but for doctors money isn't the primary motive, they are only earning a living.
One difference though, physicians practice under far stricter codes of ethics, and duty-bound to hold the relationship confidential. Furthermore, the physicians are sworn to place the interests of patients above financial gain when crucial to patients' life and limb. Most physicians strive to adhere to ethical standards.
Of course not every physician lives up to the commitments made, some are greedy, and do look at practicing medicine as a means to accumulate wealth. Fraudulent billing is one path, exaggerated claims, huge marketing efforts and so on are also ways to get there. But these actions aren't common.
And there is incompetence, which differs from the normal ambiguities of diagnosis or dead-ends of treatments that don't work. No disagreement, there can be reasons to complain, but not all complaints reflect physician error or misconduct, or actual adversity to the patient.
However, health care is a team effort. There are poor patients as well as poor doctors. Asymmetrically, patients can openly write anything about a doctor justified or not. But unlike services like AirBnB or EBay, doctors can't respond in an open forum to set the record straight.
Remember, patients can also grossly misbehave. What constraints are in place to prevent it, or from shifting blame for poor outcomes to the practitioner who was consulted?
Having been involved in "quality assurance" of patient care including financial misbehavior, I can positively assert complaints are taken seriously. If patients submit complaints to medical societies, hospitals, licensing boards, there's a very high probability the complaint will be investigated. Believe me, such investigations are despised by physicians much more that Yelp reviews.
BTW in the state in which I practice, proceeds of the medical board are public documents. You can find out about actions taken against physicians and physician assistants quite easily. Much more interesting and informative than Yelp reviews.
What is a "for-profit" business in this domain? In the classic fee-for-service model, a patient asks for a service from a physician and pays for it. The physician needs the money to keep the practice running and to buy food and shelter. You could call it a "for-profit" business like a plumber and other craftsmen, that's fair enough, but for doctors money isn't the primary motive, they are only earning a living.
One difference though, physicians practice under far stricter codes of ethics, and duty-bound to hold the relationship confidential. Furthermore, the physicians are sworn to place the interests of patients above financial gain when crucial to patients' life and limb. Most physicians strive to adhere to ethical standards.
Of course not every physician lives up to the commitments made, some are greedy, and do look at practicing medicine as a means to accumulate wealth. Fraudulent billing is one path, exaggerated claims, huge marketing efforts and so on are also ways to get there. But these actions aren't common.
And there is incompetence, which differs from the normal ambiguities of diagnosis or dead-ends of treatments that don't work. No disagreement, there can be reasons to complain, but not all complaints reflect physician error or misconduct, or actual adversity to the patient.
However, health care is a team effort. There are poor patients as well as poor doctors. Asymmetrically, patients can openly write anything about a doctor justified or not. But unlike services like AirBnB or EBay, doctors can't respond in an open forum to set the record straight.
Remember, patients can also grossly misbehave. What constraints are in place to prevent it, or from shifting blame for poor outcomes to the practitioner who was consulted?
Having been involved in "quality assurance" of patient care including financial misbehavior, I can positively assert complaints are taken seriously. If patients submit complaints to medical societies, hospitals, licensing boards, there's a very high probability the complaint will be investigated. Believe me, such investigations are despised by physicians much more that Yelp reviews.
BTW in the state in which I practice, proceeds of the medical board are public documents. You can find out about actions taken against physicians and physician assistants quite easily. Much more interesting and informative than Yelp reviews.
That's a great point! I wish I would have thought of it at the time.
It's called libel. Look it up. Let's say I went around telling everyone, "Wow, vinhboy just fucked my kid!". Anyone who Googles your name can see it. Your are up for a job with a $132,000 salary, but they don't hire you because they go "aren't you that guy that fucked someones kid?" or they just deny you the job silently. You can sue me and if the judge finds that there is no evidence that you actually fucked my kid, I could be sued for libel and potentially liable for the money you lost due to my actions. This is a pretty old thing, but in the internet age publishing has just been made a lot easier by many more people. The law should probably be adjusted to reflect the fact that it can be easy to get carried away and post an angry comment on the internet.
> they just deny you the job silently.
This.
I've first hand witnessed several people being rejected/blocked by HR from manager positions in Fortune 100 corporations due to various internet findings.
Examples: - pictures on facebook showing the applicant vomiting due to drinking too much, noone wants to risk hiring an alcoholic - search result connecting the applicant to a cult, - search result showing applicant posting negative opinions about immigration - search result showing applicant being open with bdsm sex related activities
The applicants were not given the chance to discuss these issues with HR, they were just silently rejected. I think this is very common as it exposes the company to risk if there is a discussion and the candidate is later rejected. If there is no discussion, there is no proof. When hiring for any position which is customer facing, corporate HR is incredibly sensitive how the applicant is displayed on the internet.
Posting anything on the internet about anyone is extremely powerful today and it doesn't matter if it is true or not since you will not have any way to defend yourself.
This.
I've first hand witnessed several people being rejected/blocked by HR from manager positions in Fortune 100 corporations due to various internet findings.
Examples: - pictures on facebook showing the applicant vomiting due to drinking too much, noone wants to risk hiring an alcoholic - search result connecting the applicant to a cult, - search result showing applicant posting negative opinions about immigration - search result showing applicant being open with bdsm sex related activities
The applicants were not given the chance to discuss these issues with HR, they were just silently rejected. I think this is very common as it exposes the company to risk if there is a discussion and the candidate is later rejected. If there is no discussion, there is no proof. When hiring for any position which is customer facing, corporate HR is incredibly sensitive how the applicant is displayed on the internet.
Posting anything on the internet about anyone is extremely powerful today and it doesn't matter if it is true or not since you will not have any way to defend yourself.
Yep. I know a guy who was falsely accused of sexual impropriety by a female student who made it up when her parents discovered evidence of her promiscuity (which, it was discovered, was with her boyfriend).
She goes unnamed and unscathed. Thanks to Google, he will never work in education again.
If it happened to him it could happen to you.
She goes unnamed and unscathed. Thanks to Google, he will never work in education again.
If it happened to him it could happen to you.
It happens because the US, unlike pretty much any other civilized country, does not have the so called "English Rule".
https://en.wikipedia.org/wiki/English_rule_%28attorney%27s_f...
This is unlikely to change as the trial lawyers have enormous power and sway over at least one of the 2 major political parties. Pretty much any politician who has attempted to change this has been destroyed.
https://en.wikipedia.org/wiki/English_rule_%28attorney%27s_f...
This is unlikely to change as the trial lawyers have enormous power and sway over at least one of the 2 major political parties. Pretty much any politician who has attempted to change this has been destroyed.
How is this relevant?
It seems the parent comment was primarily shocked by the size of the damages, which are not affected by the rule (or would if anything be larger with the English rule, if you want to include legal fees under damages).
It seems the parent comment was primarily shocked by the size of the damages, which are not affected by the rule (or would if anything be larger with the English rule, if you want to include legal fees under damages).
It appears they won by default. The defendant never showed up to court, and may have never been served papers.
How can you win when the defendant hasn't been served?
You can't just some random house or even a former residence. The papers actually have to be given to the defendant, right?
You can't just some random house or even a former residence. The papers actually have to be given to the defendant, right?
(Disclaimer: not an attorney; someone with more knowledge feel free to correct me)
At least for civil cases in some states, the plaintiff only needs to make a "good faith" attempt at serving the defendant (specific requirements for this may be enumerated). After a certain amount of time has passed without a reply, a trial date can be set and the case can proceed.
At least for civil cases in some states, the plaintiff only needs to make a "good faith" attempt at serving the defendant (specific requirements for this may be enumerated). After a certain amount of time has passed without a reply, a trial date can be set and the case can proceed.
Sure, they should be awarded damages and maybe fees. Is a Yelp review worth $550k in damages? Ever? Is the court system so broken to think that $550k is a reasonable amount of attorneys fees? For a case won by default?
This isn't an assault on liberty, rather, it's a silent knife in the kidney. This is the kind of ruling that allows liberty to die with a whimper, drowned in a sea of procedure and 'sure, but maybe if's, with no regard for long-term consequence (or any of the theory of, well, law.)
This isn't an assault on liberty, rather, it's a silent knife in the kidney. This is the kind of ruling that allows liberty to die with a whimper, drowned in a sea of procedure and 'sure, but maybe if's, with no regard for long-term consequence (or any of the theory of, well, law.)
That's how default judgements have always been. The person ignored their chance to plead their side of the case, and thus they don't get a say in what the damages are ordered, and the only figures the court has are what the plaintiff asked for. If you don't want to have the exhorbitant amounts usually asked for in an initial suit, show up to court.
> If you don't want to have the exhorbitant amounts usually asked for in an initial suit, show up to court.
That's not reasonable. If the person for whatever reason doesn't show up, but it is a company vs a person lawsuit, then granting everything doesn't make any sense. There could be various reasons why the person didn't show up.
That's not reasonable. If the person for whatever reason doesn't show up, but it is a company vs a person lawsuit, then granting everything doesn't make any sense. There could be various reasons why the person didn't show up.
Court dates are scheduled months in advance usually. If there's an emergency, then one usually files a motion for a continuance.
Or Im living 6 months outside the country. From what I know, there is no need to let the government know where I am. Is it now my fault that the legal system cant find me?
Is this because civil court dont have a police force that investigates and arrests you?
Is this because civil court dont have a police force that investigates and arrests you?
In some jurisdictions, a court can dismiss a default judgement, if you show that was a good reason for missing the hearing. That still takes you back to square one though, with an outstanding court case (and missing the next hearing would look pretty negative).
If you manage to stay under the radar, you may eventually escape liability by exceeding the time-limits under a Statute of Limitations, but it's usually a risky and lengthy endeavor.
If you manage to stay under the radar, you may eventually escape liability by exceeding the time-limits under a Statute of Limitations, but it's usually a risky and lengthy endeavor.
So how does your system work? Tortfeasors can just get out of damages by not showing up?
The court is responsible for notifying each side of the court case, and the case doesn’t proceed until each side has at least been given an actual chance to appear at the court?
It sounds like the court is giving both sides "an actual chance".
But what do you know?
But what do you know?
Giving both sides an actual chance also means that if the person has moved across the country, or is on vacation for a month or two, or so on, that they don’t just get fucked.
Giving them a chance means notifying them in multiple ways, or delaying the process until it can be verified that they have been notified.
Giving them a chance means notifying them in multiple ways, or delaying the process until it can be verified that they have been notified.
One wonders if Ava Bird is actually OK. Do people often drop off the grid like that and fail to respond to court papers &c?
UK: I suspect the legal situation is a bit more complex here (it usually is), so perhaps the title should be 'most important law in the US'?
UK: I suspect the legal situation is a bit more complex here (it usually is), so perhaps the title should be 'most important law in the US'?
> UK: I suspect the legal situation is a bit more complex here (it usually is), so perhaps the title should be 'most important law in the US'?
reply
It's simpler in the UK and EU at the moment.
You want to look at the EU e-commerce directive, paragraph 43 and the definition of "mere conduit" in the appendix: http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELE...
In essence, (and directly from the law):
It's simpler in the UK and EU at the moment.
You want to look at the EU e-commerce directive, paragraph 43 and the definition of "mere conduit" in the appendix: http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELE...
In essence, (and directly from the law):
"Mere conduit"
1. Where an information society service is provided that consists of the transmission
in a communication network of information provided by a recipient of the service, or the
provision of access to a communication network, Member States shall ensure that the
service provider is not liable
for the information transmitted, on condition that the provider:
(a) does not initiate the transmission;
(b) does not select the receiver of the transmission; and
(c) does not select or modify the information contained in the transmission.Excellent! Thanks for the specific reference
So, algorithmic curation completely changes classification. (Seems like a sensible law.)
> Do people often drop off the grid like that and fail to respond to court papers &c?
Yes, all the time.
Yes, all the time.
> "Because of the immunity it grants to publishers who act as intermediaries for this flow of information and commentary, “Section 230 is the backbone of the Internet,” says Thomas Burke"
If Yelp was a pure intermediary, perhaps they would have a case, but they are not and neither are any of the other companies mentioned. All these companies decide what they want to keep on their sites and what they want to remove. All of them can and do delete information and block accounts of people that break their rules.
They should not be able to hide behind Section 230 by keeping information on their site that they know to be libellous or illegal and they should be prosecuted for doing so.
If Yelp was a pure intermediary, perhaps they would have a case, but they are not and neither are any of the other companies mentioned. All these companies decide what they want to keep on their sites and what they want to remove. All of them can and do delete information and block accounts of people that break their rules.
They should not be able to hide behind Section 230 by keeping information on their site that they know to be libellous or illegal and they should be prosecuted for doing so.
I'm not quite sure what you mean by "pure intermediary". Section 230 does not say that you have to publish all user-generated content indiscriminately in order for its safe-harbor to apply.
IANAL, but that's not how I understand that Section 230 works. If it did work that way, I think the law would be horribly broken. No site hosting UGC can be completely un-moderated, and therefore by your reasoning, no site with UGC content could benefit from Section 230.
Luckily, sites can exercise some measure of editorial control of their UGC while at the same time still benefiting from Section 230 protections. As the OP states, the law is often regarded as the legal backbone of the internet, and its protections for publishers should not be easily dismissed.
What Yelp is demanding here is to be a named defendant if they are to be bound by the court decision, which is already the standard for newspapers. I think it's fair to expect to have a seat at the table if the courts are going to be ordering you to modify your site. Particularly because in this case there appear to be questions-of-fact regarding which reviews were even written by the defendant.
IANAL, but that's not how I understand that Section 230 works. If it did work that way, I think the law would be horribly broken. No site hosting UGC can be completely un-moderated, and therefore by your reasoning, no site with UGC content could benefit from Section 230.
Luckily, sites can exercise some measure of editorial control of their UGC while at the same time still benefiting from Section 230 protections. As the OP states, the law is often regarded as the legal backbone of the internet, and its protections for publishers should not be easily dismissed.
What Yelp is demanding here is to be a named defendant if they are to be bound by the court decision, which is already the standard for newspapers. I think it's fair to expect to have a seat at the table if the courts are going to be ordering you to modify your site. Particularly because in this case there appear to be questions-of-fact regarding which reviews were even written by the defendant.
Can Yelp have it both ways? It seems Bird was ordered to remove the comment, but Hassel couldn't prove she made them.
Yelp would either have to say that Bird made the comments, and absolve themselves of responsibility, or instead become responsible. Otherwise it would seem that any anonymous comment could be used to skip libel penalties. Surely there has to be precedent for this in the past few years.
Yelp would either have to say that Bird made the comments, and absolve themselves of responsibility, or instead become responsible. Otherwise it would seem that any anonymous comment could be used to skip libel penalties. Surely there has to be precedent for this in the past few years.
So, what if sites only have to remove the content if it's been ruled as defamatory? If it's some dumb little thing like an immature comment on a Youtube video, no big deal. If it's something injurious like a bad review on something that matters, then yeah, should be taken down.
Am I missing something here?
Am I missing something here?
The courts might make an exception for defamatory or libelous content, or they might undermine section 230 to the extent that it no longer works well, or they might reject it entirely. If section 230 is struck down, the consequences will not be limited to defamatory or libelous content.
> If section 230 is struck down
to be clear here: a federal law cannot be struck down by a state court.
to be clear here: a federal law cannot be struck down by a state court.
Couldn't Yelp just leave the comment up but add a message to note that it has ruled as defamation by the court? Maybe the court should structure its order like that, so that no content has to be removed but the plaintiff can get some relief.
We don't have section 230 in Europe yet the sky isn't falling.
Yea, all the giant European social media companies are doing fine. Oh wait, they don't exist. I wonder why.
US companies like Facebook are doing business in Europe and have users in Europe, so they're subject to EU law.
That could change. At some point, the cost of complying with EU regulation might be greater than the cost of shutting down the EU subsidiaries, and Facebook could do that, host all content in the US, and be subject to US law only.
Would the EU block Facebook as a response? I doubt that will be a popular move.
Would the EU block Facebook as a response? I doubt that will be a popular move.
That's not how things work. Under german law, if you provide a service that is targeted at german customers you're bound by german (hence EU) rules for that transaction, no matter where your company is located [1]. Enforcement may still be a problem, but since Facebook obviously needs to display ads that are locally relevant they need to have business interactions with EU company and it would be possible to make that at least harder, if not impossible. The EU doesn't need to block Facebook to punish it. Facebook may withdraw from the EU market as a result, but that's voluntary from facebooks side.
[1] having a german localization is a strong indicator in that case.
[1] having a german localization is a strong indicator in that case.
Won't happen, and law doesn't quite work that way. Here's a case where an EU-based court chased a US company in Europe and won:
https://en.m.wikipedia.org/wiki/LICRA_v._Yahoo!
https://en.m.wikipedia.org/wiki/LICRA_v._Yahoo!
#facexit
Hosting the content only in the US isn't a solution. When a corporation faces a state actor, there is rarely a way for the corporation to come out on top. Didn't Brazil recently require WhatsApp to cease service in the country for a short bit of time?
>Didn't Brazil recently require WhatsApp to cease service in the country for a short bit of time?
No, a judge had whatsapp blocked in Brazil and it resulted in a backlash from citizens.
No, a judge had whatsapp blocked in Brazil and it resulted in a backlash from citizens.
And then you have e.g. Uber using that backlash effect as the core part of their business strategy, turning people against their governments to ensure a market for themselves.
And then you have tobacco companies suing countries for anti-smoking laws, because fuck it, why not.
And then you have corporations playing states and countries off each other by getting them to compete over jobs with tax breaks.
So no, nation states do not really have the upper hand over corporations. It's the other way around these days.
And then you have tobacco companies suing countries for anti-smoking laws, because fuck it, why not.
And then you have corporations playing states and countries off each other by getting them to compete over jobs with tax breaks.
So no, nation states do not really have the upper hand over corporations. It's the other way around these days.
> And then you have e.g. Uber using that backlash effect as the core part of their business strategy, turning people against their governments to ensure a market for themselves.
Which only works in certain parts of the world - it's not like Uber is legal in Germany or that they made a lot of friends in Sweden lately.
Which only works in certain parts of the world - it's not like Uber is legal in Germany or that they made a lot of friends in Sweden lately.
Sure, but certain == most of the West here, and each place where it works makes it only easier for them.
It's not like companies need to get from zero to world domination in a single step.
It's not like companies need to get from zero to world domination in a single step.
>turning people against their governments to ensure a market for themselves.
If the government is no longer representing the will of the people in a democracy, isn't change the point?
If the government is no longer representing the will of the people in a democracy, isn't change the point?
Not when you change the will of the people to go against their own interest so that you can make a profit.
So who should decide when the people are too dumb to know what are their own interests and their own will?
It's the job of the government - to protect the common interest of the society that gives it the power. "People [being] too dumb to know what are their own interests" is pretty much a definition of the term "coordination problems", and humans form governments precisely in order to solve those.
>It's the job of the government
In a democracy the government's job is to do what the people want. Claiming it's the job of the government to prevent people from making decisions is antithetical to that.
In a democracy the government's job is to do what the people want. Claiming it's the job of the government to prevent people from making decisions is antithetical to that.
And AFAIK another increase in Telegram users, so Whatsapp bled as well.
Neither of these are going to happen. Closing the EU subsidiary would be a PR disaster, especially after the recent lawsuit (Max Schrems vs. Facebook).
While the EU obviously wouldn't block access to Facebook, I doubt that the cost of complying with regulation would be larger than shutting down their subsidiary. Think ad revenue, declining user base due to bad PR, and I don't think this move would go over well with their investors.
While the EU obviously wouldn't block access to Facebook, I doubt that the cost of complying with regulation would be larger than shutting down their subsidiary. Think ad revenue, declining user base due to bad PR, and I don't think this move would go over well with their investors.
That would be a net positive, so the sky is really not falling.
Badoo is doing fine, thank you. Also, if you wonder why, consider that the US kind of has a (decreasing, but still present) advantage on the Internet business market...
Clickbait title.
Please add "US" in the title.
The world has more than one legal system.
The world has more than one legal system.
I'd say it's pretty well established that SF means San Francisco, which is most definitely in the US.
I'm in the US, and I always read it as one of Science Fiction, Sugar Free, Semper Fi, Source Forge or even Stupidity Factor before I have to stop and think about what else it might mean. Not everyone on planet Earth uses California as the zero point in their mental coordinate system.
(Hint: it's really hard to collect after you get a favorable judgement in small claims court. Small claims court is a waste of time unless you're making a claim against a deep-pocketed multinational corporation.)
This experience taught me that Yelp is useless for anything except five-star reviews. The personal risk of using Yelp to tell the truth about bad service is simply too high.