Medical Justice FTC Investigation Is A Go

Medical Justice Copyright Contract
Will Medical Justice Feel The Wrath of The FTC?

After several months of bad press and legal leg-work, the Center for Democracy and Technology filed a formal complaint with the Federal Trade Commission and several Attorneys General over Medical Justice, a doctors’ rights company. In a thorough claim, the CDT cogently outlines what they consider deceptive and unfair practices on the part of Medical Justice.[1]

About The Medical Justice Copyright Infringement Control Business Plan

Over 3,000 medical professionals in the United States (many of which are allegedly facing malpractice suits[2]) pay approximately $1,200 a year for membership in Medical Justice, a company whose stated goal is to help doctors combat “physician Internet libel and web defamation.”[3]

The original Medical Justice modus operandi involved a contract that forbade patients to post negative online reviews about doctors or medical treatments received under the care of a practice. Since then, the contract has been tweaked. Now, instead of asking patients to relinquish their free speech rights, the Medical Justice agreement transfers the copyright of any future online review of the doctor, from the patient to the doctor. That way, in the event a negative review pops online, the doctor can simply exercise their copyright rights and have it removed[4] – convenient for the doctor, but legally sketchy.

Medical Justice FTC Investigation: Free Speech Legalities

The Medical Justice contract has changed since its inception since the first iteration was an affront to free speech rights.

And while contracts are binding, they become unenforceable if the law is ignored. And in the U.S., if trade secrets or confidential information are not involved, denying a citizen free speech rights, especially in a public interest matter (in this case, public health), is not allowed.

Medical Justice FTC Investigation: Privacy Legalities

Pro-Medical Justice spokespeople insist that medical professionals need service like Medical Justice since doctors are bound to patient confidentiality, and therefore can’t respond to spurious online claims.

But is that the whole truth?

While it’s true that doctors’ cannot discuss patients’ cases publicly, a doctor can discuss, online, how their practice is run (without mentioning a specific patient). Moreover, doctors can always sue patients for defamation if their reputations have been tarnished by slander or libel.

In addition to arguably misleading claims about doctor-patient confidentiality standards, Medical Justice has to worry about privacy rights. Some Medical Justice marketing collateral states that patients receive “more privacy protections” by agreeing to the contract. The problem is that Title 45 §164.508 of the federal HIPPA statute states that “a covered entity may not use or disclose protected health information without an authorization” from the patient. As such, it could be argued that Medical Justice’s claim of increased privacy standards is misleading, and or “deceptive.”[6]

Medical Justice FTC Investigation: Ghost Review Issues

Six months ago, ArsTechnica.com published an investigative piece about speculation that Medical Justice was posting questionable Internet testimonials on behalf of their member doctors. As ArsTechnica.com explained, eyebrows first started rising after John Swapceinski – webmaster of RateMDs.com – reported that 86 reviews were collectively submitted through six Medical Justice IP addresses, between November 2010 and March 2011. Medical Justice CEO, Jeffrey Segal, explained away the coincidence as a result of a trial “Review Builder Program,” in which patients could fill out paper reviews in the waiting room, which Medical Justice would then transfer online.[5]

While the facts did check out about the existence of the Review Builder Program, Medical Justice would not put the Ars Technica journalists in touch with any of the people whose names appeared in the online reviews. To make matters even shadier, identical reviews appeared across several websites under different names. And lastly, all the Medical Justice patient reviews in questions were all positive, with top marks given across the board at varying websites – a coincidence the average person would most likely find highly suspect.

FTC Endorsement Guidelines: Good But Not Great

The ever-changing nature of the Internet means comprehensive FTC endorsement guidelines written just three years ago are already in need of updates. Can doctors’ cherry pick what reviews and testimonials to highlight on their websites? Is it legal to offer discounts in exchange for a Facebook “like”? These and other Internet-related legal questions still remain untouched on the legal books. But it’s possible that an FTC investigation and subsequent ruling in the Medical Justice case may begin to answer a few.

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References

[1] Complaint and Request for Investigation, Injunction, and Other Relief. Retrieved from http://www.cdt.org/files/pdfs/20111129_medjustice_complaint.pdf on 12/5/2011.

[2] Mullin, Joe (4/14/2011). Can Doctors Use Copyright Law To Get Rid Of Negative Reviews?. Retrieved from http://m.paidcontent.org/article/419-can-doctors-use-copyright-law-to-get-rid-of-negative-reviews/ on 12/5/2011.

[3] About Medical Justice. Retrieved from http://www.medicaljustice.com/ on 12/5/2011.

[4] Anderson, Nate. (June 2011). Medical Justice caught impersonating happy patients on Yelp, RateMDs. Retrieved from http://arstechnica.com/tech-policy/news/2011/11/complaint-medical-copyright-over-your-comments-contracts-are-illegal-1.ars on 12/7/2011.

[5] Lee, Timothy B. (June 2011). Medical Justice caught impersonating happy patients on Yelp, RateMDs. Retrieved from http://arstechnica.com/tech-policy/news/2011/05/medical-justice-caught-impersonating-happy-patients-on-yelp-ratemds.ars on 12/7/2011.

[6] Medical Justice Myths. Retrieved from http://doctoredreviews.com/medical-justice-myths/ on 12/5/2011.

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