Online Defamation & Libel: The Modern Faceless Crime
Physician Internet Defamation - Case Studies
Domingo J. Rivera, MBA, JD
Internet Lawyer
www.MedicalJustice.com
The hallmark of the Internet is its ability to increase the free exchange of ideas. Email messages route instantaneously to virtually anyone. More significantly, material posted on rating sites and blogs publishes globally. While there are obvious benefits to this new communication, the ease with which information is proliferated increases the damage caused by false or harmful information, stretching the bounds of defamation.
The Internet gives the average person an opportunity to express their opinion, anonymously, well-beyond any other venue. An individual now has the ability to publish statements and articles across the world in an instant, without the guidelines or checks and balances of traditional publishing. Thereafter, online erroneous statements may linger for months, or even years, almost impossible to recover, amend and remove. Internet defamation lawsuits are on the rise and the number of people sued over online speech is increasing sharply, according to statistics from the Citizen Media Law Project at Harvard's Berkman Center for Internet and Society.
The meteoric rise of web sites where posters anonymously "rate" physicians has particular implications for Internet defamation. Traditional remedies and approaches do not apply to cases involving physicians. First, physicians are bound by state confidentiality laws and HIPAA. They are forbidden from defending against reputational assaults by posting the medical record as a correction. Second, under traditional legal principles, one who is defamed can sue not only the originator of the libelous comments, but also the distributor- such as a newspaper or a television station. Using that analogy, a natural target would be the digital distributor, the Internet Service Provider. However, in 1996, Congress foreclosed that option by granting broad immunity to Internet Service Providers for the tort of defamation. In general, physicians have few practical after-the-fact remedies against Internet assaults on their reputation.
The three following three case studies detail actual physician "cyberlibel" cases. A firm specializing in Internet defamation and cyber law represented the physicians. The cases illustrate that after-the-fact remedies are more costly, take longer, and are more uncertain than the Medical Justice approach.
Case Study I::
In May 2008, a plastic surgeon's patient posted false and defamatory statements on two different websites, alleging the surgeon negligently performed the wrong procedure. Other people posted comments, increasing the visibility and popularity of the listing. Both negative comments became highly visible on organic Internet search engines such as Google, exacerbating the original problem.
The patient who wrote the original posts was a minor at the time of the procedure, complicating the Internet attorney's attempts to locate the patient and resolve the problem. Patient confidentiality laws and federal immunity, granted to Internet Service Providers through Section 230 of the Federal Communications Decency Act, limited the available options for recourse. These measures increased both the difficulty and expense to solve this problem. .
Once the law firm located the former-patient, the firm sent a letter outlining discrepancies in the posted statements and potential ramifications if the site did not remove the posts, options including a possible lawsuit. The patient initially denied any involvement with either of the postings. However, the law firm, through its diligence, presented the patient with evidence proving otherwise.
The patient removed the postings from both websites and signed a cease and desist decree to protect the doctor from future posts regarding her treatment. Ultimately, the law firm cleared the doctor's name, but the process was expensive and time consuming. Over seven months elapsed from discovery of the initial post to its removal from the website.
Case Study II::
A doctor discovered an alarming, anonymous post on an Internet doctor-rating website, alleging gross misconduct; including "morally reprehensible" behavior by the doctor with a minor. The post eventually matriculated to the first page of top search engines, irreparably harming the doctor's practice. Current and potential patients called questioning the posting's contents and merit. Many existing patients chose to leave the practice. The situation created emotional and economic hardships as the practice struggled to remain viable while the doctor defended his reputation.
The anonymity of the poster and the Internet Service Provider's claim of immunity under section 230 of the Communications Decency Act increased the difficulty of this case. After an exhausting investigation, the law firm discovered the posting originated not from a patient, but from a competitor's computer. Because the doctor was not utilizing the Medical Justice preventative Anti-Defamation protection at the time, the firm created alternative strategies to address the issue.
After legal maneuvering, the competitor removed the false post from the website. The firm successfully resolved the dispute, but as the lead lawyer in the case stated "the case took a significant amount of time, effort and resources."
Case Study III::
In September 2007, an ex-patient posted false and defamatory statements on a website citing physician misconduct. In this case, the physician was a Medical Justice Member who incorporated the Anti-Defamation Contract Language into his patient intake forms. The firm confronted the author who admitted being treated by other physicians, each of whom agreed that the original treating doctor did nothing wrong. The patient then admitted that the postings were emotionally driven and false. The patient agreed to remove the posting and a sign cease and desist document.
Although the patient removed the disputed posting, the website kept all comments associated to the original posting. The host website did not stop there; it retrieved the first negative comment of the original posting topic, backdated it and promoted that negative comment to the top of their listings of complaints. The law firm promptly delivered a cease and desist order to the website and presented the signed Medical Justice patient-physician contract agreement. In response, the website removed everything associated with the original patient complaint and contacted the law firm to announce the removal of all comments associated with the case.
Medical Justice:: Cost Effective, Viable Protection
Without Medical Justice protection, Internet libel cases are difficult to resolve. State privacy laws, HIPPA and the immunity granted to Internet Service Providers restrict a physician's ability to defend and protect their reputation. These restrictions also limit the remedies available for legal redress. If these cases go to trial, they can take years to resolve.
In the third case outlined above, Medical Justice gave the physician and his counsel tools to resolve the case in an expeditious, cost-effective manner. Medical Justice protects its Member physicians, prevents defamatory Internet postings and provides viable remedies to remove negative posts should they occur.
Medical Justice has approximately two-thousand member physicians and is available in all 50 states. Annual fees range from $495 to $1,800, depending on specialty and location of the physician. Medical Justice Anti-Defamation Protection - a "vaccine against libel" - is included with full membership or is available as a stand-alone service.
