Gursten vs. Doe: Court allows fake Google My Business reviews online to harm competition
Unfortunately, if this is the case, it will cause great harm to innocent business owners across the country.
Can a company create fake names to give a star to a competing company?
On March 18, 2021, the Michigan appeals court answered exactly that question.
Yes, you can.
That was decided by a two-judge majority in the Michigan Court of Appeals in a defamation case I submitted. We concluded that a harmful one-star online review by a suspected non-customer competitor is still “an expression protected by the first amendment”.
In making its decision, the court disregarded Google’s strict guidelines for the proper publication of an online review, stating: “Regardless of the true identity of Doe 2, this does not change our conclusion that a wordless one-star review of the Google review is an opinion. even if it violates Google’s guidelines. “(Gursten v. Doe, majority opinion, page 5, footnote 2).
From there, the court opened the door to further abuse. A competing company using a fake account name may post wordless one-star reviews about a competitor as that review may represent an opinion about that competitor’s appearance or website.
The court in the Gursten v. Doe has chosen to ignore that dishonest companies are increasingly abusing online reviews to deliberately damage the online reputations and livelihoods of competitors. It happened to me in this case and it happened to many others. This decision will make the online fraudulent verification problem even worse. It gives unethical business owners the green light to create fake accounts with fake names in order to intentionally harm competitors.
The judgment is profoundly flawed on several important points.
First, the law should protect anonymous speech by a competitor who uses a fake name to manipulate online review ratings through targeted deception than protecting the people whose livelihoods and reputations are being harmed.
Second, the court is preventing innocent business owners from proving that an online review is NOT Protected Language by not allowing a restricted discovery to at least establish the true identity of a reviewer using a pseudonymous Google account in order to detect malicious content. Star online review to leave under the first change.
This decision means that unethical business owners who leave one-star online reviews of competitors will be protected. An unscrupulous company could now create 100 fake account names to leave 100 fake one-star online reviews to deliberately harm a competitor, and that decision would consider those 100 fake reviews to be perfectly legal and proprietary speech as per the first change.
The 4 red flags
In my case there were four very suspicious things that led me to believe that something was certainly wrong in Denmark.
Red flag # 1
The first red flag came the day I received a one-star online rating from a person named Patrick Anderson. I had never represented anyone by that name, or a lawyer in my law firm. In fact, I’ve never spoken to a person named Patrick Anderson before. A review of my law firm’s admissions and case management program found that no one by that name has ever called my office.
Someone had created a Google account under the pseudonym “Patrick Anderson” and then used that account to leave me a one-star online review.
Red flag # 2
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 in a Michigan newspaper online by a person named Tom Mahler. Just like with Patrick Anderson, Tom Mahler was someone I had never represented, who had never been a client of mine or any other attorney in my law firm, and who had never called our law firm before.
I filed this lawsuit and found that “Tom Mahler” was another Michigan attorney who worked in the same field as me.
My suspicions were confirmed. This now-banned personal injury attorney had set up a fake Facebook account called Tom Mahler in an attempt to deliberately damage my online reputation and damage my business.
Red flag # 3
The third red flag came shortly after I filed this lawsuit. The defense attorney, who appeared to represent the “John Doe” I named in my lawsuit to determine the true identity of “Patrick Anderson,” turned out to be a Michigan attorney who does not advertise to the public. But he is well known to me and other personal injury attorneys in my practice as a Michigan attorney.
Man walking with brown leather bag; Image by Marten Bjork, via Unsplash.com.
This was a strong signal that anyone behind the pseudonym Patrick Anderson is almost certainly a car accident and no fault litigation attorney, just like me. It is an impossible coincidence to imagine that a non-attorney would know anything about this attorney, let alone choose him to represent him in a defamation lawsuit when there are over 60,000 lawyers in Michigan. Only another auto-no-fault attorney like me would even know who that person was to contact him for legal representation.
Red flag # 4
The fourth and final red flag came when this appellate attorney never stated, throughout the course of the lawsuit and appeal, and in all of his submissions, that the person behind the pseudonym Patrick Anderson was ever a former, current person. or even a one-time potential client of mine or another attorney in my law firm.
This was a huge red flag. My position in this lawsuit has always been that I should be allowed very limited legal discovery to determine whether the person who leaves these online reviews under alias accounts is a legal competitor who uses reviews as a weapon to run my business and Deliberately damaging my online reputation. I told the court that if the one-star review was indeed written by a former client of mine, or if it was by a member of the public who had ever contacted me in the past, I would dismiss my case. If the review is from a business competitor who is using online reviews as a weapon to harm my business and reputation, as I strongly suspect – and as I have confirmed, the attorney behind the fake Facebook account verification of “Tom Mahler ”- then this review is not an opinion protected by the first change.
Despite my assurances in court that I would dismiss my lawsuit if the person behind the Patrick Anderson account was found to be a past, current, or even one-time prospective client, his attorney never disclosed it. Why not disclose and have my case dismissed immediately? All he would have to do to dismiss my case would be to show the judge that this person is not a lawyer / business competitor of mine and my lawsuit will be dismissed. This would save his client from paying thousands of dollars in legal fees. Who wants to pay unnecessary legal fees?
But the lawyer who defended “Patrick Anderson” never did, and there can only be one reason: His client is a lawyer.
Creating an account under a fake name to intentionally harm another attorney’s reputation and business would be a grave ethical violation. This is an attorney who is fraudulently using a false name to dishonestly misrepresent that he was a client or a client of mine. Such behavior would be subject to discipline under the rules of professional responsibility for lawyers. Rule 8.4 (b) states that it is “professional misconduct by a lawyer. . . Conduct involving dishonesty, fraud, deception, misrepresentation, or violation of criminal law when such conduct adversely affects the lawyer’s honesty, trustworthiness, or suitability as an attorney. “
Indeed, one of the most troubling aspects of this deeply flawed legal decision is that Gursten v. Doe can be used to lift the ethical prohibition on engaging in dishonest, fraudulent, and fraudulent conduct for lawyers. Are we really saying that attorneys can now leave fraudulent one-star online reviews for other attorneys using bogus names? It is not difficult to see how this case will do 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 Libel Act is a means of defending a good name and getting redress for the harm caused by false statements.
The overarching question my case raises is whether a company can post one-star reviews with fraudulent names in order to harm other companies. The dissent in Gursten v. Doe got it right. Judge Gleicher wrote that my case should be sent back to court to “make discoveries” aimed at quickly revealing whether these online reviews were legitimate or whether they were left by unethical business competitors in order to improve my online reputation damage.
One-star anonymous reviews should not be used as weapons between competing companies. I brought this case up to prevent unethical companies from creating online smear campaigns aimed at hurting the companies they are competing with.
Unfortunately, if this is the case, it will cause great harm to innocent business owners across the country. It will harm society. I will appeal this case and do everything I can to establish the true identity of the attorney behind it and to be a strong voice on why we cannot allow an unfair outcome that harms our society to endure. We cannot allow online reviews to be armed and used by unethical companies to harm competitors who stick to the rules and offer superior products and services.