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AN UNFAVORABLE ANONYMOUS GOOGLE REVIEW OF PLAINTIFF ORTHODONTIST, ALTHOUGH IT INCLUDED BOTH FACT AND OPINION, WOULD BE UNDERSTOOD BY A READER TO BE PURE OPINION; THE REVIEW IS NOT ACTIONABLE DEFAMATION (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined that an unfavorable Google review of plaintiff orthodontist by a former minor patient did not constitute actionable defamation:

Plaintiffs, an orthodontist and his professional corporation, allege that defendants — a former minor patient and that patient’s parents — defamed them in an unfavorable review posted on Google. Contrary to Supreme Court’s holding, we find that, although defendants’ Google review contains elements of both fact and opinion, it nevertheless is not actionable … , and it was not the motion court’s province to “sift[] through [the] communication for the purpose of isolating and identifying assertions of fact” … . Rather, the court should have considered the overall context in which the communication was made, an anonymous online review of plaintiff’s services … .

Here, a reasonable reader of defendants’ Google review would understand it to be pure opinion based on the context in which it was posted and its arguably “[l]oose, figurative, or hyperbolic” tone … . Furthermore, defendants’ Google review was posted anonymously online and, as we have recognized, “‘[R]eaders give less credence to allegedly defamatory remarks published on the Internet than to similar remarks made in other contexts'” … . DeRicco v Maidman, 2022 NY Slip Op 05921, First Dept 10-20-22

Practice Point: An unfavorable, anonymous Google review of plaintiff orthodontist, although it included both fact and opinion, would be understood by readers to be pure opinion. The review therefore did not constitute actionable defamation.

 

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