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If an Outrage Is Clever Enough, Is It Still an Outrage? Or, Kudos to Boalt Hall and Santa Clara Law School

Thanks to a phone call from a writer for BNA, a few months ago I learned of a  clever new “product” from a business called “Medical Justice.”  Medical Justice, based in Greensboro, North Carolina, sells various kinds of protection to its physician clients.  (See their web site at http://www.medicaljustice.com/internet-libel-physicians.aspx.) These include measures they say will prevent medical malpractice suits, deter claims for refunds, and help physicians pursue counterclaims against plaintiffs’ expert witnesses.  The group also sells “anti-defamation packages” to its physician members, either as part of full membership or as a stand-alone service for $625 for the first year.  These packages apparently include contracts for the physicians’ patients to sign, contracts that assign to the doctor the copyright in any on-line reviews the patient writes.

As I understand it (and I am not an internet law maven), this agreement purports to give the doctors, as owners of the copyright, the power under the Digital Millennium Copyright Act, to demand that a website remove “their” copyrighted material.   Of course, this is unlikely to be used for favorable reviews, but only for unfavorable ones. Yelp or its equivalents then get to show to the world only those reviews of the doctor that the doctor wants to have displayed.  Without this assignment of copyright to the physician, he could sue the patient (presumably, former patient) for libel or slander, but he would have to hire an attorney, take the initiative to sue, and, in most cases, either lose outright or win a pyrrhic victory against a judgment proof defendant.

If this effort to squelch public criticism isn’t illegal, it should be.  For a professional to want to stop public criticism of his or her services is understandable; for us to allow it to happen seems unconscionable.   One might be able to argue that the contract is void as against public policy or as unconscionable.  I think perhaps a more promising approach is to argue that such a restriction is an unenforceable violation of public policy.  For example, as early as 1963 in the California Supreme Court ruled that an advance waiver by a patient of any malpractice claims against a hospital is unenforceable as violating public policy.  A related approach would be to argue that such a restriction on the patient’s right to use the internet to discuss his or her doctor violates the doctor-patient relationship, a status that has obligations not always modifiable by contract.

Happily, two of our sister institutions are taking up the fight. The Samuelson Law, Technology & Public Policy Clinic at Boalt Hall – er, wait, is that Berkeley Law School? – and the High Tech Law Institute at Santa Clara University have created a website to publicize this travesty:  http://doctoredreviews.com.   I applaud them.  (Positive review, two thumbs up, etc.)

Feel free to call me an idiot in the comment section below or on any website you want.  Whenever I look at a review site – for a restaurant, a hotel, or an auto mechanic – I expect to see some negative, even outrageously negative, reviews.  I try to keep a sense of proportion about them – a few people are going to be unhappy with any kind of service.   The price of free speech is sometimes annoying speech and sometimes just plain wrong speech.  Apparently Medical Justice thinks this price is too high to pay (unlike the dollar price for their services).  This makes me wonder what kind of doctors they are  (other than putative doctors of spin).

Hank Greely

3 Responses to “If an Outrage Is Clever Enough, Is It Still an Outrage? Or, Kudos to Boalt Hall and Santa Clara Law School”

  1. Douglas James says:

    How would you address a situation where an individual(s) with multiple e-mail aliases compose and publish online fraudulent malicious reviews? This/these individual(s) could be a hired gun by a business competitor or a sever malcontent who has read the book, “How To Screw Over Someone Without Them Knowing Where And Whom The Screw Came From.” and “Methods To Retaliate Against A Business or an Individual Whom Didn’t Give You a Free Piece of Candy” or, just newly graduated from high school or college young Mary Jane out to be “cool” on the internet. This happens. And it happens a lot.

    The review is published throughout the WORLD, not just pinned on the wall of a local laundromat.

    Let’s be pragmatic and practical and not exclusively philosophical. How would you professor Greely address the situation of a student(s) whom you gave a “C” or a “B” to, or a jealous colleague, or anyone who may not like your skin color, gender, sexual orientation or marital status, or for what ever reason, clandestinely trashes, from multiple websites using alias names, your hard worked for, life time developed, honorably obtained reputation that is the only thing you have to sell yourself with? What excuse do you use to explain the negative reviews to your wife, your children, friends, colleagues? Will they COMPLETELY believe you without any lasting doubt when you tell them according to our Constitution everyone has the right to their opinion and to express it. And, “The price of free speech is sometimes annoying speech and sometimes just plain wrong speech.” You maybe cloistered in an ethical environment where such conduct is unheard of, but most of the country is not. Most individuals are not, most companies are not. An individual in your position, with the help of your colleagues should formulate a method or prepare a position paper on how to filter/prevent fraudulent reviews. I believe you wrote your article believing reviews are all written by normal/stable ethical individuals without any ill intent. If you believe this——–you are very, very wrong. They hurt, they damage, they destroy. You state, “I expect to see some negative, even outrageously negative, reviews.”. Fine, but would you go to a restaurant where a fraudulent competitor reviewer reviewed he saw roaches all over the floor? Medical Justice has a good method to address this situation and so does Congress via the DMCA Act.

  2. hgreely says:

    Well, first, the copyright assignments in Medical Justice don’t do anything about competitors or miscellaneous cybervandals. They give the physician the copyright ownership in anything one of his patients posts about him. A competitor seeking to ruin a physician’s business wouldn’t need to, or want to, become or hire a patient in order to do that.

    In that kind of case the harmed doctor (or other business) should sue. I used to be a litigator – suing is an expensive, annoying, pain in the rear, to be avoided at almost all cost. But the Medical Justice answer is too easy, giving the doctor all power over patients’ reviews for no cost – and depriving patients, I suspect often without their understanding, of their rights to post unedited comments. And, in the situation you posit, of malicious attacks by or supported by competitors, the possibilities of effective legal action are strong.

    Reviews of my teaching are available electronically to our students (and my colleagues and my boss). Sometimes they are painful and sometimes (I think) the painful ones are unfair. That’s life. I have eaten at restaurants, and stayed at hotels, after seeing a really awful review – one terrible, often blatantly unbalanced, review amidst 20 good ones doesn’t influence me. We learn, we will all have to learn, to read reviews more critically.

    So, as a substantive matter, I think the Medical Justice solution, though clever, is outrageous. It takes too much power from the patients (probably largely without their true knowledge) and gives too much power to the doctor. It is certainly cheaper and easier than litigation – too much cheaper and easier.

    The other issue is more a legal process question. That part of the DMCA was intended, I believe, to help publishers, record companies, movie and television studios and others easily stop piracy of their products. There may be problems with that solution, but it is letting them block something they have a good legal (and arguably moral) claim to block. The Medical Justice approach uses sleight of hand to turn a patient’s review into the doctor’s intellectual property, without moral or, I think, ultimately, legal justification.

    Unreasonable, outrageous, and malicious reviews are a problem and they are a nice example of differences in degree becoming differences in kind. An unhappy patient could always complain to family and friends; now he can complain to the whole world (or, at least, that tiny part of it that bothers to read his review). And that does change the problem. But the answer cannot be to give the person reviewed the power to block, without judicial intervention, all reviews that, for whatever reason, he doesn’t like. The problem may be real but this “solution” for it is beyond wrong – it is, I think, an outrage.

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