• by Wendy Davis  @wendyndavis, November 30, 2011

The digital rights group Center for Democracy & Technology is urging the Federal Trade Commission to put a halt to tactics used by Medical Justice, a company that assists doctors in squelching bad reviews.

"By providing the means to medical practices to suppress patient reviews, Medical Justice is engaging in deceptive and unfair business practices,” the CDT says in its complaint, filed on Tuesday.

In addition, the advocacy group Public Citizen filed suit this week against a New York dentist who allegedly used Medical Justice's strategy to try to stifle unfavorable comments online.

Medical Justice, a North Carolina outfit launched by Dr. Jeffrey Segal, since 2007 has used copyright law to discourage bad reviews. The company said on Wednesday that it intends to change tactics and shift to a “computer-based eMerit medical reputation service.” It's not yet clear what that new service will involve.

Until Wednesday, Medical Justice marketed contracts that purported 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 users who sign the contracts nonetheless post bad reviews, the doctors can threaten to sue the publishers for copyright infringement unless they remove the posts. The strategy can work because the immunity laws that protect online publishers when users upload infringing material only apply if publishers promptly remove the content upon request. Faced with the possible loss of immunity, some publishers will remove material as soon as they receive a notice of copyright infringement, rather than risk liability.

But the CDT says in its complaint that the contracts are unenforceable because prohibitions on consumer speech violate public policy. Therefore, the group argues, Medical Justice is selling doctors a worthless service. “Insofar as Medical Justice represents to doctors (and by extension, to patients) that these contracts are valid and enforceable, Medical Justice is engaging deceptive business practices,” the complaint alleges.

The complaint also argues that the terms of the contracts themselves are unfair, “as they cause substantial injury to consumers and consumer review sites alike.”

The CDT asked the FTC to ban Medical Justice from marketing contracts that could give doctors ammunition to suppress bad reviews. The digital rights group also says Medical Justice should inform its clients -- the doctors who used its contracts -- that the agreements are "likely unenforceable and illegal.”

While Medical Justice said on Wednesday that it will stop marketing such contracts, that promise isn't legally binding.

The CDT isn't the only one challenging Medical Justice's contracts. A patient, Robert Lee, also filed a potential class-action lawsuit against New York dentist Stacy Makhnevich.

In a complaint filed Tuesday in federal court in New York, Lee alleges that he paid more than $4,000 for a tooth filling that “should have cost $200.” Makhnevich allegedly failed to turn over the records so that he could put in an insurance claim.

Lee says he posted complaints about his experience, following which Makhnevich and her dental practice “invoked their purported ownership in the copyright in Lee’s commentary,” and demanded not only that the Web sites take down the reviews, but started sending Lee invoices of $100 per day for having made the posts.

Yelp and DoctorBase refused to take down the reviews, according to Lee's lawyer, Paul Alan Levy of Public Citizen. Instead, they “defied the threat of infringement liability, telling Makhnevich that they regarded her agreement with the patient as illegal,” Levy blogged.

Lee now argues that the contract assigning copyright to the doctor is invalid. What's more, he says, his posts wouldn't infringe copyright in any event because they constitute fair use. “Defendants’ attempt to squelch speech runs counter to the purpose of the Copyright Act -- to promote the flow of information that is useful to the public. To the extent defendants possess any legitimate copyright interest in any patient comments, they cannot misuse that interest for a purpose wholly unrelated and antithetical to the fundamental precepts of copyright law,” his lawsuit argues. Lee is seeking a declaratory judgment stating that he is allowed to post reviews online.