Here at Avvo, we’re no strangers to getting sued by professionals who have been sanctioned by the licensing authorities. We believe that knowing about sanctions is powerfully important to consumers of professional services, and that this information should be readily and openly available. Sadly – but perhaps understandably – many of those sanctioned professionals would prefer that potential patients and clients stay in the dark.
While Avvo is big enough to fend off the occasional lawsuit from a sanctioned professional – and knowledgeable enough in the law to not be intimidated by the many threats of lawsuits we receive – bloggers and reviewers who write about doctors and lawyers are not usually as well-situated to defend against litigation, threatened or actual. The latest example is Portland blogger Tiffany Craig. Craig wrote a post this summer about plastic surgeon Jerry Darm, pointing out that he had been sanctioned for allegedly sexually harassing a patient. However, in pointing out the sanction, Craig referred to Darm surrendering his license. In fact, he’d been allowed to continue practicing, but with several conditions, including that he be accompanied by a chaperone when treating female patients.
Darm sued Craig for defamation, claiming $1 million in damages from Craig’s post about his sanctions. To Craig’s great credit, she fought the lawsuit and has not deleted the post in question. So many times, these types of claims are less about seeking damages than they are about silencing comments that the plaintiff doesn’t like. It’s unlikely Darm cares so much about the technical distinction of whether his sanction involved a suspension from practice or the imposing of significant conditions thereon; rather, he doesn’t want anyone to know about his sanction at all, and he believes – foolishly – that this lawsuit is a way to achieve that end.
There’s a term for this kind of claim: a strategic lawsuit against public participation, or SLAPP suit. This type of claim seeks to silence otherwise-lawful speech by raising the specter of having to incur ruinous costs in defending the lawsuit. It’s a strategy that’s been employed by the prickly-and-deep-pocketed for quite some time, with the most notable recent example being Washington Redskins owner Dan Snyder’s suit against the Washington City Paper over an unflattering portrayal.
But there are two dynamics that are starting to shift the playing field against those bringing SLAPP suits. The first is the Streisand Effect, where the defamation suit itself brings far more attention to the allegedly defamatory comments than they ever would have received had the object of the comments simply ignored them. And the second is the rise of anti-SLAPP laws, which provide defendants an expedited path to getting a SLAPP suit dismissed. Many such laws also provide a mechanism for the prevailing defendant to recover their attorney fees – or even a fine – from the party bringing the SLAPP suit.
While such laws aren’t available to SLAPP victims everywhere, they are spreading. Washington adopted a very strong anti-SLAPP law in 2010. Texas and Washington, D.C. have followed suit this year. And thankfully for Tiffany Craig, Oregon has an anti-SLAPP law. That law has allowed Craig to stand up to Darm’s lawsuit.
None of this is to say that defamation shouldn’t be actionable. An anti-SLAPP law provides no protection to someone who engages in actual defamation. But the concept of defamation is far more limited that those bringing these suits would have it. Tiffany Craig certainly didn’t defame Dr. Darm by writing about his sanction; he was in fact sanctioned, and truth is an absolute defense to a defamation claim. To survive Craig’s special motion to strike under Oregon’s anti-SLAPP law, Darm would have to show that he has a prima facie case of defamation. In order to do so, he would have to show that Craig’s overstatement – that Darm was suspended from practice in addition to having conditions imposed – is actionable defamation.
One issue that those claiming defamation often latch onto is this sort of minor inaccuracy or overstatement, thinking that statements must be 100% accurate to avoid being defamatory. But if you unpack this a bit, the problem Darm has is the disclosure that he was sanctioned. It matters a whole lot to potential patients of Aesthetic Medicine that Dr. Darm was sanctioned for allegedly molesting female patients; it matters a whole lot less whether that sanction resulted in practice conditions or a period of suspension. There’s a concept in defamation law called the “substantial truth” defense. As long as the gist of the claim is true, minor inaccuracies or overstatements will not support a defamation claim. This defense has been successfully applied in cases where far more onerous crimes and punishments have been reported, and would likely work in Craig’s favor here.
This isn’t to say that sloppy reporting should be excused, or that writers should be less-than-diligent in looking into those matters they plan to publish, particularly when they involve someone’s reputation. But at the same time, it impoverishes our discourse if the bar for accuracy is set impossibly high, and expressing oneself is done at risk of being sued for a foot-fault. Craig’s motion presents an interesting test of anti-SLAPP as applied to a “substantially true” defamation case.
However . . . this coming Thursday would have seen the hearing on whether Darm’s suit was a SLAPP, but as Craig announced on her blog at the end of last week, the case has been settled. As her original post is still up, that settlement likely involved Darm agreeing to drop his suit in exchange for Craig not going after him for her attorney’s fees (which she would be entitled to had she prevailed on her motion).
While we won’t see a court ruling on this particular issue, the case dismissal indicates what Darm thought of the merits of his defamation case as the moment of truth drew near. Kudos to Tiffany Craig for fighting the good fight to the end.
Thank you to everyone who has been part of our 2011 webinar series. We still have a couple sessions remaining, but looking ahead to the new year, we’ve just launched our free legal marketing webinar schedule for the first several months of 2012.
My message was simple: In order to be a great lawyer, in almost every area of the law, you need to also be a great business person – or at a minimum a student of business principles. Whether you want to start your own firm, be an influential partner or manager in a larger firm, be a general counsel or even represent business clients in litigation, the more you are a student of business principles, the more successful you will be.
I noticed while writing this post that Megan 
