An at-home dental appliance company has a problem with the website Lifehacker. It’s the sort of problem it thinks can only be solved by filing a baseless defamation suit. SmileDirectClub — maker of DIY teeth-straightening equipment — is taking the site to court for an article originally titled “You Could Fuck Up Your Mouth With SmileDirectClub.” The title has since been changed to suggest any “at-home orthodontics” could fuck up your mouth, but the wording of the article remains unchanged.
The gist of the article is that straightening teeth requires direct oversight by qualified professionals — something that seems unlikely to happen with at-home orthodontics. The author of post — citing dental professionals and a few online forums — notes that without proper, direct care, in-home dental appliances actually can cause worse alignment or result in the loss of teeth.
I’m halfway through an unusually long two-year program of Invisalign, the most popular brand of aligner. (The company behind Invisalign also makes SmileDirectClub’s aligners.) Every ten weeks I see my orthodontist for a checkup, new aligners, and advice. On a recent visit, I admitted that I’d started leaving my aligners out for longer periods (at parties or picnics), and was making up for it by leaving them in an extra day each.
My orthodontist gently explained that while my aligners are still pushing my teeth into place, my teeth want to shift back, and they’ll take every opportunity to do so. In effect, I’ve been very slowly wiggling my teeth. And wiggling teeth makes them fall out.
I no longer leave my aligners out for long periods.
So, given the average human’s desire to take shortcuts or do whatever’s most comfortable, rather than what’s most necessary, at-home dental work, although cheaper, could cause serious problems down the road. Hence the need for professional care, rather than made-to-order appliances and online checkups based on photos of your mouth.
SmileDirectClub is pissed off. Never litigate angry. It only makes your arguments stupider. The complaint [PDF] opens with claims of things that never happened before devolving into general complaints about internet business models and website lineage. (h/t First Amendment warrior/lawyer Daniel Horwitz)
On April 6, 2018, Gizmodo through its weblog called Lifehacker, which is located at www.lifehacker.com, published an article written by Douglas entitled “You Could Fuck Up Your Mouth With SmileDirectClub” (the “Untruthful Article”).
Through this outrageous, misleading and vulgar title, Gizmodo intended to lure the 24 million readers of Lifehacker to an article filled with unsubstantiated false statements and innuendo that attacks Plaintiff’s products and services.
Although Douglas readily admits in the Untruthful Article that he never used or even tried Plaintiff’s products and services, he proceeds with a hatchet job based upon a comparison to a failed company that is not comparable for purposes of his statements; citation to a message board that does not support his statements; and conclusions that Plaintiff’s products and services are “bad” and “cheap.”
Actually, the article doesn’t make either of those claims. It merely suggests using an at-home version will possibly result in tooth problems.
Obviously that’s because I’m lucky enough to afford the more expensive option. If you can’t, it can be very hard to hear that your only available option is a bad one. And maybe you’ll end up just fine with the cheap version—by all appearances, thousands of people have. But if you go remote, please be careful. Research as much as you can, and follow the instructions carefully. Don’t wiggle your teeth until they fall out.
Even with the original title, the article is not defamatory. The key word in the headline is “could.” On top of that, the assertions made are supported by statements from dental professionals and users of these at-home products. The headline change shifts the focus from SmileDirectClub, but does not change anything about the assertions and opinions that compose the body of the post.
From that terrible start, the lawsuit goes off the rails. Apparently, SmileDirectClub believes “clickbait” and “part of the Gawker network” are pretty much all that’s needed to successfully state defamation claims.
Even when confronted with the falsity of their article and admitting that one of the citations does not support the statements in the article, Defendants refuse to remove the Untruthful Article.
They refuse to do so because it is how they make their money.
Douglas and Gizmodo made such statements and used the outrageous “You Could Fuck Up Your Mouth With SmileDirectClub” title to bait consumers into viewing the article so that they could obtain revenues from banner advertising.
This continues a pattern over a decade of defamatory shock-style “journalism” by Gawker Media and its progeny (such as Lifehacker), whose weblogs were bought out of bankruptcy and now are held by Gizmodo.
Douglas, as a former reporter for Gawker, also has ties to the now defunct Gawker Media.
Defendants willfully, intentionally, and maliciously created a false story to drive “clicks.”
There’s more later in the lawsuit, where — for no apparent reason — SmileDirectClub decides to regale the court with tales of Gawker’s fall from grace at the hand of Peter Thiel-backed lawyers who had every intention of destroying the company, rather than simply seeking to have a grievance redressed.
SmileDirectClub also apparently believes — incorrectly — that statements of opinion must come with a disclaimer clearly designating them as opinions.
The Untruthful Article does not contain a disclaimer that it constitutes opinion only or that the statements therein do not reflect the views of Gizmodo or Lifehacker.
And it deliberately misreads the paragraph quoted above to portray it as an unsubstantiated statement of fact.
Finally, Douglas makes the unsubstantiated statement that, if one cannot afford a traditional orthodontist, SmileDirectClub is a “bad” option.
He further refers to SmileDirectClub’s products as “cheap” in connection with his allegation that the products are “bad.”
Douglas’s conclusion is not based on any factual evidence and is unsupportable.
It’s his opinion about at-home products based on his personal experience and the not-unreasonable assumption that many people won’t take the best care of their own teeth if the only person overseeing them is a Skyped-in dental professional viewing a tooth-filled selfie. And it’s followed by statements the lawsuit chooses to omit, which says many people have had success straightening their teeth using in-home products like those offered by SmileDirect.
The other supposed damning evidence presented by SmileDirect is the site’s attempt to fix the problems noted by the company.
On April 8, 2018, counsel for Plaintiff emailed a letter to Gizmodo, Lifehacker, Douglas, and Kirsch in which Plaintiff demanded that Gizmodo and Douglas immediately remove the Untruthful Article. A true and correct copy of the April 8, 2018, letter is attached hereto as Exhibit 6.
On April 9, 2018, counsel for Plaintiff caused the letter to be hand delivered upon Gizmodo. Gizmodo acknowledged receipt as shown in the email from Gizmodo’s General Counsel. A true and correct copy of the email is attached hereto as Exhibit 7.
On April 10, 2018, counsel for Plaintiff received an email from Gizmodo in response to Plaintiff’s April 8, 2018 email and April 9, 2018 letter. A true and correct copy of the response email is attached hereto as Exhibit 8.
Gizmodo asserts in its email that “Mr. Douglas meant to link to an additional discussion forum about aligners, and he will update the article to do so.”
Thus, Gizmodo admits that the Untruthful Article’s link to www.bracesforum.net is misleading but refuses to take the Untruthful Article down.
Gizmodo doesn’t actually admit what SmileDirect says it admits. And even if the link was misleading, another link was provided and the post’s title changed. None of this needed to be done. The article wasn’t defamatory to begin with, even if the title was somewhat of a cheap shot in its original form.
Then it’s time for more of this padding, which does little more than suggest SmileDirect’s legal representation thinks courts run on emotion, rather than legal interpretations of existing laws.
Lifehacker, through its villainous lineage and Gawker Media parentage, continues the bad conduct of Gawker Media.
At best, Lifehacker’s Untruthful Article shows a reckless indifference for the truth, which is consistent with Gizmodo’s pattern of conduct going back to its origins with Gawker Media.
To sum up: “Gawker was once sued successfully for defamation. I rest my case.” Perhaps the plaintiff believes the court has some v. Gawker judgment boilerplate laying around just in case any of its now-bastardized children have roused the rabble again.
Speaking of competent representation, it appears SmileDirect is hoping Gizmodo, et al will be held libel for slandering without proper disclaimers or whatever.
If you can’t see or read the picture, the heading/subheading reads:
TRADE LIABLE/PRODUCT DISPARAGEMENT
Finally, the lawsuit ends with a plea for the article to be removed and anyone associated with the site from ever reposting it in any form. You know, a little prior restraint to go along with everything else that’s wrong this lawsuit. SmileDirect wants this to happen before the judge even receives a response from Gizmodo or weighs the merits of the dental company’s arguments.
It’s a stupid lawsuit but it’s still going to be a legitimate pain in the ass. Tennessee has a relatively worthless anti-SLAPP law and courts there have allowed incredibly dubious defamation lawsuits to proceed past motions to dismiss. This could be an easy win for Gizmodo or a protracted battle that gives the plaintiff’s arguments far too much credit. Either way, it’s something a good anti-SLAPP law would keep this from being a boon for legal representation and a drag on protected speech.
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