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Tuesday
Mar282017

On-line Opinions are Generally not Considered Actionable; However, On-line Defamation Can Result in Substantial Liability

Two recent court of appeals decisions outline the do’s and don’ts of on-line communications. Free expression of opinion is still protected speech. However, publishing defamatory opinions on the internet can result in substantial liability.

On one hand, the Seventh District Court of Appeals, in the case captioned Gentile v. Turkoly, 2017-Ohio-1018, reaffirmed the general principle that the on-line expression of an unfavorable opinion is generally not actionable in a court of law. In this case, Ms. Turkoly hired Dr. Gentile to perform plastic surgery. Suffice it to say, Ms. Turkoly was not satisfied with the surgery.

Following the surgery, Ms. Turkoly successfully sued Dr. Gentile for medical malpractice and also expressed her opinion on the website “vitals.com.” In her review, she stated, among other things, that “he mislead me in the consultation” and that the readers should “Stay away for this Unscrupulous Dr.” Apparently, at least one reader did stay away from Dr. Gentile and cancelled a previously scheduled appointment.

Dr. Gentile then sued Ms. Turkoly for interference with contract and business relations. After the trial court granted Ms. Turkoly a directed verdict at trial, Dr. Gentile took an appeal. The Court of Appeals agreed with the trial court that Dr. Gentile failed to state a claim for interference with business relations for many reasons. Among those reasons given was the general principle of law that the expression of an opinion is not actionable.

The District Court stated that Dr. Gentile was required to prove Ms. Turkoly “knew [the statements] were false or acted with reckless disregard of whether they were true or false.” Merely communicating a good faith opinion to another person does not rise to the level of tortious interference. Indeed, the Ohio Supreme Court has recognized that expressions of opinion are generally protected under the Ohio Constitution. In determining whether speech is a protected opinion, a court must consider the totality of the circumstances. The court must consider “the specific language at issue, whether the statement is verifiable must be considered, the general context of the statement, and the broader context in which the statement appeared.”

On the other hand, the Sixth District Court of Appeals, in the case captioned Forinash v. Weber, 2017-Ohio-107, reaffirmed the general principle of law that in a defamation per se case, damages are presumed. In this case, Forinash filed a complaint with the trial court, stemming from a written post Weber published on her Facebook profile, in which she stated that Forinash was “hooked on porn [and] watches dirty movies with teenage girls.” This statement was determined to be false and defamatory per se. Following a court trial, Forinash was awarded the amount of $100 in nominal damages, $500 in punitive damages, along with $22,000 in attorney fees. The trial court reasoned that the post was most likely read only in Sandusky County, Ohio. The Court of Appeals, however, disagreed, reasoning “[t]he record contains no competent and credible evidence to support the court’s finding that appellee’s defamatory statements were only viewed by residents of Sandusky County. Further, it would defy reality to conclude that a post on a social networking internet site such as Facebook is in any way limited in its geographic reach.”

In sum, the thoughtful expression of one’s opinion is protected speech but care should be exercised when engaging in on-line communications.

Should you have questions regarding the civil justice system, please feel free to contact Scott D. Simpkins at 216-621-8484.