Unfortunately, if this case stands, it will cause widespread harm to innocent business owners throughout the country.
Can a business create fake names to leave a competing business one-star online reviews?
On March 18, 2021, the Michigan Court of Appeals answered this very question.
Yes, they can.
That’s what a two-judge majority on the Michigan Court of Appeals decided in a defamation case I brought. The Court concluded that a harmful one-star online review from a suspected business competitor who is neither a client nor a customer is still “an expression of opinion that is protected by the First Amendment.”
In reaching its decision, the Court disregarded Google’s own strict guidelines about who can properly post an online review, stating “regardless of Doe 2’s true identity, this does not alter our conclusion that a one-star wordless review on Google review is an opinion, even if it violates Google’s policy.” (Gursten v. Doe, majority opinion, Page 5, footnote 2).
From there, the Court opened the door to further abuse. A competing business using a pretend account name can post wordless, one-star reviews about a competitor because that review might be an opinion about that competitor’s appearance or website.
The Court in Gursten v. Doe chose to ignore that dishonest businesses are increasingly abusing online reviews to deliberately harm competitor’s online reputations and livelihoods. It happened to me in this case and it is happening to many others. The impact of this decision will be to make the fraudulent online review problem even worse. It gives a green light for unethical business owners to create fake accounts using fake names to deliberately cause harm to competitors.
The ruling is deeply flawed in several important respects.
First, the law should not grant more protection to anonymous speech by a competitor who uses a fake name to manipulate online review ratings through purposeful deceit than it does to protect the people whose livelihoods and reputations are being harmed by it.
Second, by not allowing limited discovery to at least ascertain the true identity of a reviewer using a pseudonym Google account to leave a harmful one-star online review, the Court is actually preventing innocent business owners from demonstrating that an online review is NOT protected speech under the First Amendment.
This ruling means that unethical business owners who leave one-star online reviews of competitors are protected. An unscrupulous business could now create 100 fake account names to leave 100 fake one-star online reviews to deliberately harm a competitor, and this ruling would consider these 100 fake reviews perfectly legal and protected speech under the First Amendment.
The 4 Red Flags
In my case, there were four very suspicious things that led me to believe something was most certainly rotten in Denmark.
Red Flag #1
The first red flag came the day I received a one-star online review from a person named Patrick Anderson. I had never represented anyone by that name before, nor has any lawyer in my law firm. In fact, I have never even spoken to a person named Patrick Anderson before. A review of my law firm’s intake and case management program showed that no one by that name has ever even called my office.
Someone had created a Google account under the pseudonym of “Patrick Anderson” and then used that account to leave me a one-star online review.
Red Flag #2
At around the same time as the Patrick Anderson review, I also received a negative review on Facebook and some very negative comments posted about me online in a Michigan newspaper from a person named Tom Mahler. Just as with Patrick Anderson, Tom Mahler was someone who I had never represented before, who had never been a client of mine, or of any other lawyer of my law firm, and who again had never even called our law firm before.
I filed this lawsuit and discovered that “Tom Mahler” was another Michigan lawyer who practiced in the same area of law that I do.
My suspicions had been confirmed. This personal injury lawyer, now disbarred, had created a fake Facebook account under the name Tom Mahler to deliberately try to cause harm to my online reputation and to attempt to hurt my business.
Red Flag #3
The third red flag came shortly after I filed this lawsuit. The defense lawyer who filed an appearance to represent the “John Doe,” who I had named in my lawsuit so I could ascertain the true identity behind “Patrick Anderson,” turned out to be a Michigan attorney who does not advertise to the public, but he is very well known to me and to other personal injury lawyers who practice in my area of law as a Michigan No-Fault appellate attorney.
This sent a strong signal that whoever the person is behind the pseudonym Patrick Anderson, he is almost certainly an auto accident and No-Fault litigation attorney, just like me. It’s an impossible coincidence to imagine that a non-lawyer would even know about this lawyer, let alone pick him to represent him in a defamation lawsuit when there are over 60,000 lawyers in Michigan. Only another auto No-Fault lawyer like myself would even know who this person was in order to contact him for legal representation.
Red Flag #4
The fourth and final red flag came when this appellate attorney, throughout the course of the entire lawsuit and the appeal, and through all of his submitted pleadings, never once represented that the person behind the pseudonym of Patrick Anderson was ever a former, current, or even a once-prospective client of mine or another lawyer in my law firm.
This was a giant red flag. My position in this lawsuit was always that I should be allowed very limited legal discovery to ascertain if the person leaving these online reviews under pseudonym accounts is a legal competitor who is using reviews as a weapon to deliberately harm my business and online reputation. I told the court that I would dismiss my case if the one-star review had in fact been written by a former client of mine or even if it were from a member of the public who had ever contacted me in the past. If the review was from a business competitor who is using online reviews as a weapon to cause harm to my business and online reputation, as I strongly suspect – and as I had confirmed from unmasking the lawyer behind the fake Facebook account review from “Tom Mahler” – then this review is not an opinion that is protected under the First Amendment.
Despite my representation to the trial court that I would dismiss my lawsuit if it turned out the person behind the Patrick Anderson account had ever been a former, current or even once prospective client, his defense lawyer never did disclose this. Why not disclose this so my case would be immediately dismissed? All he would have to do to dismiss my case would be to show the judge that this person was not a lawyer/business competitor of mine and my lawsuit would be dismissed. It would save his client from having to pay thousands of dollars in attorney fees. Who wants to pay unnecessary legal fees?
But the lawyer defending “Patrick Anderson” never did, and there can be only one reason why: his client is an attorney.
Creating an account under a fake name to deliberately cause harm to another lawyer’s reputation and business would be a serious ethical violation. This is an attorney who is deceitfully using a fake name to dishonestly misrepresent that he was a customer or a client of mine. This conduct would be subject to discipline under the rules of professional responsibility for lawyers. Rule 8.4(b) states that it is “professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit, misrepresentation, or violation of the criminal law, where such conduct reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer.”
Indeed, one of the most troubling aspects of this deeply flawed legal decision is that Gursten v. Doe may be used to dismantle the ethical prohibition against engaging in dishonest, fraudulent, and deceitful conduct for lawyers. Are we really saying that lawyers can now leave fraudulent one-star online reviews for other lawyers using pretend names? It is not hard to see how this case will cause great harm to the profession.
Online Reviews Can Now Be Used As Weapons to Harm Business Competitors
The United States Supreme Court wrote that our defamation law is a means to vindicate a good name and obtain redress for the harm that false statements cause.
The overarching question my case raises is can a business leave one-star reviews using fraudulent names to cause harm to other businesses? The dissent in Gursten v. Doe has it right. Judge Gleicher wrote that my case should be sent back to the trial court “to conduct discovery focused” on quickly disclosing if these online reviews were legitimate or if they were left by unethical business competitors to cause harm to my online reputation.
Anonymous one-star reviews should not be used as weapons between competing businesses. I brought this case to stop unethical businesses from creating online smear campaigns aimed at hurting the businesses they compete with.
Unfortunately, if this case stands, it will cause widespread harm to innocent business owners throughout the country. It will harm society. I will be appealing this case and I will do everything I can to ascertain the true identity of the lawyer behind this and to be an outspoken voice for why we cannot allow an unjust result that harms our society to stand. We cannot allow online reviews to be weaponized and used by unethical businesses to harm competitors who play by the rules and offer superior products and services.