The term “SLAPP” is an acronym for strategic lawsuit against public participation. Generally, more powerful entities with superior resources and legal acumen may file lawsuits against individuals for exercising their First Amendment right of free speech. Additionally, adverse public reviews may negatively impact a company’s earning potentials, regardless of their veracity.
In the modern age of the internet and social media, individuals and consumer advocates are voicing their opinions on a range of products and services. Technology has given rise to an army of citizen journalists. Some create websites, blogs, and YouTube videos. Others may limit their participation to online reviews.
Anti-SLAPP statutes are designed to protect those of lesser means and give them an equal footing in the public square of discourse and debate. These laws vary considerably from state-to-state, as outlined in a February 2022 white paper by the Institute for Free Speech.
“Anti-SLAPP statutes are designed to address a structural problem within American law: namely, an unscrupulous litigant can use litigation strategically to suppress or punish speech he or she dislikes. Such a litigant would typically claim that the speech constituted defamation and then sue others to harass them, silence them, or force them to bear significant litigation costs.”
“Those who are faced with such a lawsuit (sometimes called a “SLAPP” or a “SLAPP suit”) are often presented with a harsh choice – accede to the litigant’s demand for settlement (which may include paying compensation, ceasing criticism, and apologizing) or continue to bear heavy legal fees as the suit progresses. Either choice may entail substantial losses of speech, reputation, time, and money. These are costs defendants must bear even when faced with lawsuits that plaintiffs have a minimal chance of winning.”
The nation’s strongest anti-SLAPP laws are in California. The US Ninth Circuit Court of Appeals has upheld these statutes as substantive law for over two decades. However, other federal courts have taken differing stances. A definitive ruling has yet to be handed down in a case before the US Supreme Court.
The Federal Trade Commission (FTC) released a policy statement on November 10, 2022, which emphasized their commitment to exercise their legal authority against companies that use unfair tactics to gain an advantage instead of competing on the merits. Among a variety of violations, the FTC plans to target “false or deceptive advertising or marketing which tends to create or maintain market power.”
On October 20, 2022, the FTC announced it was exploring a potential rule to combat deceptive or unfair review and endorsement practices, such as using fake reviews, suppressing negative reviews, and paying for positive reviews.
“Companies should know by now that fake reviews are illegal, but this scourge persists,” said Samuel Levine, director of the FTC’s Bureau of Consumer Protection. “We’re exploring whether a rule that would trigger stiff civil penalties for violators would make the market fairer for consumers and honest businesses.”
Such deceptive or unfair practices involving reviews and endorsements include:
- Fake reviews: These include reviews and endorsements by people who do not exist, have not used the product or service, or who lie about their experiences.
- Review reuse fraud: Some sellers hijack or repurpose reviews posted about another product or service.
- Paid reviews: Marketers may pay for positive reviews about their products or negative reviews about competitors’ products.
- Insider reviews: These include reviews written by a company’s executives or solicited from its employees that don’t mention their connections to the company.
- Review suppression: Companies might claim that their websites display all reviews submitted by customers when they suppress negative reviews or attempt to suppress reviews on other platforms by threatening the reviewers.
- Fake review websites: This is when a seller sets up a purportedly independent website or organization to review or endorse its own products.
- Buying followers: This involves buying or selling followers, subscribers, views, or other indicators of social media influence.
Public confidence is frequently misplaced with the veracity of online reviews. Kathryn “Kay” Dean, former special agent with the US Department of Education, Office of Inspector General, is the founder of Fake Review Watch.
Dean targets the methods and means of bogus online reviews. She also holds tech companies such as Google, Facebook, and Yelp complicit.
Dean’s research uncovered a classic example of a dentist misleading the public by utilizing audacious bogus online reviews.
Her work has also detailed the corollary, on how dentists have been damaged by obviously phony patient reviews.
The American Dental Association (ADA) touches upon the issue of the dental support organization (DSO) industry and small business dentists engaging in the troubling tool of false and misleading marketing. Wording in the ADA Principles of Ethics and Code of Professional Conduct states “Although any dentist may advertise, no dentist shall advertise or solicit patients in any form of communication in a manner that is false or misleading in any material respect.”
Unfortunately, ethical positions of the ADA have little impact on DSOs and non-member dentists.
Firms have been established to rehabilitate online reputations. A few specifically market to the dental industry. Some of these companies operate legitimately. Others utilize questionable means to bury and remove negative patient reviews, news reports, and even public record lawsuits.
Some efforts are also made to pump up the number of positive reviews with voluminous fake favorable reviews. Dean’s work has demonstrated situations of Big-Tech essentially being bought off, to enable a segment of an online industry dedicated to public deception facilitating manipulations of search engine results.
On behalf of ADA membership, president George R. Shepley, DDS, and executive director Raymond A. Cohlmia, DDS, wrote the FTC on January 5, 2023. The issue was related to FTC rule changes on deceptive or unfair uses of reviews and endorsements.
“We are particularly concerned about reviews by people who are not actually patients of the dental practice, or who are misrepresenting their experiences with the dental office.”
“A common problem that dental offices face with these deceptive or unfair reviews is that, unlike businesses that can respond specifically to negative reviews, dentists, as health care providers, may be constrained by federal and state privacy laws from disclosing patient information even if the review is deceptive or misleading, and even if the reviewer discloses their patient information in the review.”
“The ADA urges the FTC to create an exception to enforcement and regulations under the FTC Act that would permit health care providers, including dentists, to disclose patient information in response to a review without violating the prohibition against unreasonable and deceptive trade practices, provided the disclosure is limited to the scope of the topics addressed in the review.”
“The ADA also urges the FTC to include in its rulemaking a requirement that the reviewer self-identify, as well as a requirement for the social media site to verify that identity. If the reviewer does not self-identify in the review, then the dental practice should have an avenue to request that identification from the social media site.”
PUBLIC CONSUMER ADVOCATES
“Dentist the Menace” is an online dental blog founded and edited by a Kentucky grandmother, Debbie Hagan. She initiated her journey as a dental consumer advocate after her grandchildren were abused and grossly over-treated at a corporate chain dental Medicaid mill. These kids subsequently developed all the common manifestations of pediatric dental abuse from bed wetting to night terrors, to dental phobias.
One of her primary targets was a DSO, Small Smiles Dental, which subsequently filed for bankruptcy dissolution and is today defunct. This DSO which largely focused on the pediatric dental Medicaid population, was the subject of legal action by the US Department of Justice, as well as a variety of states’ attorneys general.
Small Smiles Dental, a frequent subject on “Dentist the Menace,” was unable to comply with an agreed Corporate Integrity Agreement of the US Health and Human Services – Office of Inspector General and was subsequently excluded from participation in government programs. Evidently, this DSO was not fiscally viable without the business model of Medicaid fraud and consequently closed their doors to the public.
Prior to the demise of this problematic DSO, the company filed a SLAPP lawsuit in federal court against Hagan. They wanted her consumer blog silenced. They additionally realized she had minimal resources in which to fight off a corporate bully behemoth.
Hagan agreed to an exclusive interview with Dentistry Today.
“At the time, there was little to zero protection. In addition, there wasn’t a lawyer in my locale that even knew what a SLAPP suit was about, let alone know how to defend me against such a suit. So, I had to do lots of research and represent myself in federal court.”
Hagan took the experience as a deep learning experience.
“Never underestimate your own power and influence,” said Hagan. “As that the old saying goes ‘never let them see you sweat.’ They thought they could scare me into submission, but they were wrong.”
“They eventually asked the court to dismiss their case, which I consider a win” concluded Hagan. “After winning the Small Smiles suit, not one other corporate dental clinic ever attempted to silence me.”
Interestingly, after the business failure of Small Smiles Dental, numbers of their officers and senior management went onto leadership positions with a corporate chain that treats acute mental health and drug abuse problems. Similarly, they focus on government funded programs such as Medicaid and Medicare.
Others in their disturbing leadership went onto senior positions at a large dental Medicaid managed care organization, which acts as a third-party administrator for states handling dental Medicaid. While doctor providers, who have engaged in Medicaid fraud may be excluded from future participation in government funded programs, similar enforcement actions rarely fall upon corporate management and officers, who tacitly facilitate and direct Medicaid fraud.
Once suckling the highly lucrative nectar of defrauding government funded programs is experienced, it becomes difficult for upper management to leave the teat.
On a larger stage, SmileDirectClub (SDC) sued NBC Universal Media over a February 13, 2020 report on Nightly News with Lester Holt. SDC claimed damages of $2.8 Bil for “knowingly and intentionally making factually inaccurate, misleading, and defamatory claims about the Company (SDC).”
“The breadth of its misconduct is staggering,” the Company (SDC) said in the 205-page lawsuit. “NBC misled its viewers and readers about the safety of the treatment that patients receive when using SDC’s platform, the involvement of licensed dentists and orthodontists in the treatment of patients when using SDC’s platform, and the benefits that patients receive when they are treated using SDC’s platform. Incredibly, nearly everything that NBC stated and implied about SDC in its broadcast and online report was factually inaccurate.”
In a December 2021 ruling in the Tennessee Sixth Circuit Court (Nashville), Judge Thomas W. Brothers dismissed the complaint against NBC Universal. The court determined NBC Universal was protected under the Tennessee Public Participation Act (TPPA). SDC may decide to appeal in the future.
Attorney Daniel A. Horwitz asserts the TPPA is a powerful tool to help protect First Amendment (free speech) rights and counter abusive SLAPP actions.
“Because litigation is often prohibitively expensive, bad actors can often intimidate critics into silence by threatening or filing baseless speech-based lawsuits asserting claims like defamation (libel or slander), false light invasion of privacy, business disparagement, or other questionable torts.”
“When facing the prospect of having to spend tens (if not hundreds) of thousands of dollars in legal fees to defend one’s legal right, for instance, to leave an unfavorable review of a business, self-censorship can also become an extremely attractive proposition. The result of such self-censorship is to undermine both individuals’ right to free speech and the public’s right to hear and receive information.”
“It is important to note that the overwhelming majority of defamation and other speech-based lawsuits are not filed because a person has suffered an actual legal injury. Instead, their purpose is to punish people for lawfully exercising their right to speak freely about a topic that the suing plaintiff wants to censor. Given the cost of litigation, historically, such lawsuits have been disturbingly effective.”
SHOE ON OTHER FOOT
Dr. Grant Olson of Springfield, Missouri spoke out on a YouTube video posted on November 3, 2022. Olson highlighted what he believes to be a dangerous trend in dentistry. So called snap-on veneers are laboratory fabricated and often delivered directly to patients without a dentist’s examination or supervision. At least a dozen different companies offer a similar product directly to the public via online and social media marketing.
Dentists are well aware of deleterious outcomes of non-professional devices fabricated for the oral cavity. Such mail order or mall kiosk products may include “gangsta grills,” non-professional at-home bleaching trays, oral jewelry (various mouth rings and studs), certain clear orthodontic alignment trays, and snap-on plastic teeth.
A doctor’s prior examination would likely mitigate damage the device might generate from pre-existing pathology such as periodontal disease, tooth decay, gingival recession, parafunctional habits such as bruxing or clenching of teeth, tooth mobility, etc. A dentist’s supervision during the time of patient deploying the oral apparatus would also serve to mitigate potential injury.
Possible negative outcomes might vary from physical chipping of teeth, tooth decay, tooth loosening, tooth loss, to aspiration or swallowing of a damaged dental device necessitating thoracic or abdominal surgery. Olson specifically demonstrated a case in his video of a patient suffering from substantial gross dental caries (tooth cavities) as result of a nonprofessional snap-on veneer, which trapped food and plaque.
In response to his YouTube posting, Olson was sued in federal district court by Brighter Image Lab (Fort Worth, Texas) and lab director Bil Watson for alleged defamation. Watson is pleading the court for an injunction against the online video and seeks monetary damages for his business.
Brighter Image Lab targets an online national market and is seeking an international footprint for sales. Their website seems very professionally created with high quality visuals and positive audio messaging.
Brighter Image Lab also does business as “Brighter Image Teeth Whitening” and received a Better Business Bureau accreditation and rating of “F.” By stark contrast, Google gave the business a rating of 4.7 stars out of five. Watson is also the director of MSC Development, Inc., a consumer finance company working in close cooperation with Brighter Image Lab.
Olson states in his video he supports a specific product called Snap-On Smiles, in which patients receive a dentist’s examination, placement, adjustments, and monitoring. His concerns are with the potential dangers presented by unsupervised dental care upon an ignorant public.
Watson alleged in his current lawsuit that Olson’s video was made “in response to this (Watson’s) competitive threat.” Olson also claims in his legal action that the dental industry is threatened by his company, which allows the public to bypass traditional dentistry.
In a September 2020 interview, Watson discussed how the Texas State Board of Dental Examiners (TSBDE) earlier brought a lawsuit against him and his company for “practicing dentistry without a license.”
“In the end, we won our case on all 28 counts — not because we found some loophole or had big-money investors funding a powerful legal team — but because we were simply in the right. People have the right to wear a cosmetic cover over their teeth and they have the right to buy it without paying the dentist a 300% markup for it.”
There is no record found of Brighter Image Lab licensed with the TSBDE, as would be required under Texas statutes for all operating dental laboratories in Texas, or out-of-state dental labs serving Texas dentists. One might then assume Watson’s lab is not a dental laboratory. Yet, his website markets “becoming an authorized dealer” and “partner” specifically to dentists, hygienists, and dental industry professionals.
Brighter Image Lab also sells the “Bilistic Tooth Polisher” and “Bilistic Teeth Cleaning and Bleaching” products directly to consumers. Sales merchandise also includes “Bilistic Detox Serum” without any description of chemical content. Photographic images of sales products include a rubber cup polishing device, plastic stock teeth impression trays with impression material, and periodontal scaling instruments.
The Streisand effect was a term coined after singer Barbara Streisand’s failed efforts to squelch photographic records of coastal beach erosion related to her ocean cliff-top mansion, in Malibu, California. Streisand only drew more attention to her situation, by her activities of perceived censorship. She generated the opposite of her goals with her attempts of information suppression.
SLAPP action lawsuits can absolutely repress free speech. They may also block the public’s right to access information and knowledge critical in consumer decision making.
By contrast, a small number of SLAPP legal claims may also boomerang, provoking the Streisand effect, which may eventually draw more attention to a matter.
One may reasonably question if a plethora of litigious activity by a dental company truly serves the interests of their shareholders. Or by contrast, does continuous litigation evoke the Streisand effect, with the negative result of a drop in stock trading valuation?
Doctors publicly countering unfavorable online reviews have revealed confidential patient info protected under federal HIPAA statutes. This has led to a costly settlement for a California dentist, as well as a dentist in North Carolina.
Increasingly, states are enacting and expanding the legal scope of anti-SLAPP legislation. Internet warriors are taking on perceived abuses in the marketplace. This may range from the public’s online reviews, YouTube video postings, entire blogs focused upon alleged mendacious companies, or reports from professional investigative journalists.
On the federal level, the FTC is tasked ultimately as an arbiter. Their rules, threats of enforcement, and enforcement should be designed for a fair and reasonable marketplace playing field. Consumers and companies alike deserve protections from false and deceptive advertising.
Businesses merit online reviews and reports which are not based on phony fabrications. Concurrently, consumers and their advocates have a right of free speech. SLAPP lawsuits have for too long been an effective means with suppression of free speech, which enable a lack of marketplace transparency.
Ultimately, reasonable balance and equity should be achieved to motivate free speech through anti-SLAPP legislation and FTC rules. A prime focus should be to discourage the massive quantity of fake reviews (both positive and negative) dominating many internet review sites. Consumers warrant protections from deceptive marketing of goods and services on all media platforms. Consumers also benefit from access to a wide breath of information.
ABOUT THE AUTHOR
Dr. Michael W. Davis practices general dentistry in Santa Fe, NM. He also provides attorney clients with legal expert witness work and consultation. Davis also currently chairs the Santa Fe District Dental Society Peer Review Committee. He can be reached at MWDavisDDS@Comcast.net.
FEATURED IMAGE CREDIT: evan_huang/shutterstock.com.