Doctors who attempt to limit patients' ability to post online reviews about their medical care might be risking legal liability as well as ethics complaints, a group of law professors warns on a new site.
The site, DoctoredReviews.com, launched on Wednesday by the Santa Clara University High Tech Law Institute and The Samuelson Law, Technology & Public Policy Clinic at the University of California Berkeley School of Law, aims to counter the efforts of the 3-year-old anti-review company called Medical Justice.
When Medical Justice emerged, the company stunned proponents of free speech by devising a new way to discourage negative comments online. Rather than threaten patients with libel actions -- which tend to be difficult to prove -- Medical Justice decided to use copyright law to nix unfavorable reviews.
The company, conceived by Dr. Jeffrey Segal, drew up a contract for doctors to ask patients to sign. This form, called "Mutual Agreement to Maintain Privacy," purports to assign the copyright interests in any future reviews patients write to the doctors. In exchange, the doctors promise to protect patients from "unwanted marketing information" -- anonymous targeting by marketers.
If patients sign the forms and later post unflattering reviews, the doctors can go directly to the publisher's site and demand their removal.
The strategy can work because the immunity laws that protect online publishers when users upload unlawful material don't apply to posts that infringe on copyright. Instead, the Digital Millennium Copyright Act's safe harbor provisions protect publishers from copyright infringement liability for users' posts, but only if the publishers take down material upon request.
Medical Justice's technique, however, drew criticism from digital liberties advocates. They question whether doctors should be presenting patients with these types of agreements. Now, some law professors are also warning that the strategy is legally questionable.
"We need doctors to understand that nothing comes for free. This particular form is not in their best interest," says Eric Goldman, director of the High Tech Law Institute. "Simply presenting the form to consumers might be an illegal practice," adds Goldman, who previously served as general to the review site Epinions.com. The new Doctored Reviews site refers to a case in New York, where former Attorney General Eliot Spitzer took action against Network Associates (now McAfee), for including language in its terms and conditions requiring consumers to obtain permission to publish reviews. Spitzer obtained an injunction requiring the company to remove that language from its terms.
Medical Justice has not yet responded to Online Media Daily's inquiries about the new site. But Segal reportedly has said that doctors could use these contracts to convince sites to take down "fictional or fraudulent" posts by competitors or others. It's not clear why that's the case, however, because in that scenario whoever posted the review wouldn't be the same one who assigned the copyright to the doctors.