With the explosion of social media, physicians, dentists and other medical professionals (collectively “physicians”) are becoming daily victims of anonymous online defamation.
Giving patients the ability to review physicians has many upsides, but it also has downsides, as well. Online reviews, at their best, have replaced word-of-mouth feedback from prior patients, providing patients with multiple reviews in mere minutes, unlike before. When the reviews are honest and accurate, they help patients quickly distinguish between providers. The downside for patients who turn to online physician reviews is that often they are no more reliable than many healthcare websites, which can scare patients into thinking that appearance of blood in their stool is colon cancer when the real culprit is the beets they had for lunch.
Similarly, online physician reviews provide both pros and cons for physicians. Online reviews allow really good physicians to garner more wide-spread recognition. But what about when a review is dishonest or inaccurate? Opinion does not constitute defamation, but reviews that contain untrue facts likely could serve as the basis of a defamation claim. What about when the reviewer is not a former patient, but rather a competitor? How does a physician fight back?
Sometimes the negative comments are minor and the best advice is to brush them off. But other times the comments are serious and deserve a stronger response, such as when they are tantamount to suggesting malpractice, or that your nurse practitioner has a terrible bedside manner. These comments can damage your reputation and harm you economically if they steer business away from you. When that happens, especially if it happens more than once from the same person, you may have grounds to assert a claim of business interference, and not just defamation.
One of the biggest challenges with the Web 2.0 is the fact that most online review websites provide no quality assurance – many of them the posting of any comment without regard to its truth, as long as it does not contain profanity. Even worse, most online review comments are made anonymously. If that’s the case, how can you protect yourself? How can you even find out the identity of the poster?
Fortunately, victims are not without recourse. Most people think that they can say whatever they want online and that no one will ever know who said it. This is incorrect. There are ways to find out the identity of online posters, but you need to act quickly since Internet service providers (ISPs) often destroy records of online activity after 180 days.
If you find that you are the victim of disparaging comments made online, you won’t get very far suing the website that hosts the comments (known as user generated content or “UGC”). Websites that host UGC are immune from liability related to comments made by third parties under Section 230 of the Communications Decency Act.
The first step is to examine the website’s Terms of Usage or Terms of Service. Each website that invites UGC should have its own rules of conduct. Most sites have rules that allow those parties who have been reviewed to notify them if a comment is untrue. Some sites, like vitals.com, have rules that allow physicians to remove up to two negative reviews within a certain time period. If you can resolve the issue by contacting the host website, this is the fastest and most economic route.
If you cannot resolve the issue by informally contacting the physician review site, ask your attorney to send a cease and desist letter to the website demanding that the comments be removed. Sometimes websites comply; other times their terms and conditions do not allow them to comply without a court order.
When you want to find the identity of the anonymous poster, and not just have the comments removed, you can also file a “John Doe” lawsuit against unknown defendants, empowering you to subpoena the host website for the IP address of the person posting the comments. From there, you can determine the ISP. Because the Cable Communications Policy Act of 1984 prohibits ISPs from disclosing personally identifying information about Internet users to non-governmental entities without a court order, the next step is to obtain a court order allowing you to subpoena the ISP for the identity of the poster. Recently, a court in Nashville refused to allow an anonymous poster to hide his identity, and allowed the victim to move forward with its subpoena of the ISP.
Keep in mind that filing suit for defamation requires a plaintiff to provide details in the complaint about the allegedly defamatory statements. Sometimes filing suit is the best option. Other times, publicly amplifying the negative comments only adds fuel to the fire.
Finally, responding to anonymous online defamation often requires a multi-faceted approach. Recently, one of my business clients found several comments online that accused its employee of criminal and scandalous conduct. These comments harmed both the business and the employee. Given the context, the client needed legal advice on not just the social media issues above, but also with employment law issues. If the comments had been true, the employer may have needed to terminate the employee, since the comments reflected poorly upon the business.
If defamatory comments are made that threaten to damage your reputation as a physician, don’t just sit back and take it. Instead, consider your options in fighting back.
© Stephen J. Zralek 2011. All rights reserved.