However, the court also ruled that Dr. Wong's libel claim could go forward to be decided by a judge or jury, according to Paul Clifford, an attorney with the California anti-SLAPP project.
In January 2009, Dr. Wong sued Tai Jing and Jia Ma, the parents of a young patient who had been treated by Dr. Wong, after the father posted a negative review on Yelp.com. Dr. Wong contended that the review defamed her by implying that she didn't inform the boy's parents about alternatives to the use of amalgam and nitrous oxide and didn't spot other cavities needing treatment.
The key issue in the case is whether the review stepped over the line from discussing a topic of public interest to defamation.
In March 2009, Dr. Wong won the first round of the legal wrangling when Judge William Elfving for the California Superior Court in Santa Clara overruled a motion to dismiss the suit. The case then went before the California Court of Appeals to determine whether it should be dismissed under the anti-SLAPP statute.
Dr. Wong sued the parents for three causes of action each, as well as a request for an injunction requiring removal of the Yelp.com review. The court ordered that all the causes of action be dismissed, with the exception of a single claim for libel against the parent who actually posted the review.
The court stated that "[C]onsumer information that goes beyond a particular interaction between the parties and implicates matters of public concern that can [a]ffect many people is generally deemed to involve an issue of public interest for purposes of the anti-SLAPP statute."
In this instance, the court found that there is "public concern, discussion, and controversy about the use of silver amalgam because it contains mercury" and, therefore, the Yelp review was protected under the anti-SLAPP law because it contributed to the public discussion.
Importantly, the court of appeal held that it was not the burden of the individuals accused of posting the review to prove that they did not do so, but that it was the burden of the plaintiff to prove that the defendants had posted the review.
"Defendants had the initial burden to show only that the complaint was based on protected conduct," the court wrote. "They did not have to make a preemptive factual showing to negate what Wong might present to satisfy her burden. ...Wong had the burden to present admissible evidence to establish [the defendant's] liability in the first place. She failed to do so."
"I think it means businesses should consider whether they really want to sue their customers even if the information they post is negative," Clifford said. "Oftentimes, if you sue the person who wrote it, it only brings more attention to it and it may cost you more money in the end."
Dr. Wong's lawyer, John Ter Beek, told DrBicuspid.com he disagrees with the appellate court's decision to dismiss Jia Ma from the libel complaint but was pleased it will be allowed to go forward against her husband, Tai Jing, in court.
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