It’s the online defamation case of the animal farm owner verses the animal affairs activist!
Steven Vidmar, owner of Friendly Farms – a petting zoo and pony ride animal provider – sued Erika Gannon-Hughes for defamation. Yelp libel, to be precise. He says she knowingly lied about his animal farm in a concerted effort to ruin his business; she says she speaks the truth, and nothing but the truth.
Why Did The Animal Farm Sue The Reviewer For Online Defamation?
For thirty years, USDA licensed Friendly Farms has been providing four-legged friends to petting zoos, pony rides and other types of animal-related entertainment events.
Erika Gannon-Hughes, however, is not a Friendly Farms fan. On Yelp!, she let her feelings rip, offering:
“In all honesty, 1 star seems too generous of a rating. I know firsthand that these animals are severely abused.”
“The majority of them have lice, are ridden with parasites, are LONG overdue for a hoof trimming, and are ALL underfed,” continued the review, according to the lawsuit. “The owners of this company are nothing but cruel, heartless and shady. They are in it for the $$$ and nothing else. Please do not support this company!”
According to available reports, Yelp did remove Ganoon-Hughes’ comments, but Friendly Farms is still moving ahead with an online defamation lawsuit. And the quasi-zoo wants more than $50,000 in damages.
What Friendly Farms Will Have To Prove To Win This Yelp! Defamation Lawsuit
The main question: what will Steven Vidmar have to prove to win this Internet defamation lawsuit?
- That the negative statements were about him or his business – which is easy to prove since the comments appear on the Friendly Farm’s Yelp! page;
- That the statements are false and caused material harm – bank records that show a decline in business since the review went live, or affidavits from clients or potential clients saying that they chose not to do business with Friendly Farms because of the post, should suffice.
- That the defendant purposefully or negligently published the information – Friendly Farms would have to present evidence that the defendant either knew what she was lying and published it anyway, or the animal farm must present a cogent argument that the defendant had every reason to know that what she wrote was untrue.
Are You Dealing With An Internet Defamation Situation?
Online defamation is becoming more common. If Internet libel has caused you hardship, and you’re interested in taking legal action, get in touch with Kelly / Warner Law. We are a top-rated firm, with AV-rated lawyers who focus on Internet defamation.
Yelp Defamation Lobbyist Now On The Hill: Online Review Company Hires A Lobbyist To Plead Their Libel Case On Capitol Hill
While Yelp can serve as an effective, low-cost marketing tool for businesses, it can also be a hot-bed of defamation. Not only do business competitors post damaging reviews on nemesis’ pages, but oftentimes, disgruntled customers take their aggression out via Yelp! And truth be told, some people mess with pages just for the sport of it.
As a result of all the Yelp defamation, the site spends a lot of resources dealing with online libel cases birthed on their platform. So, what do profitable corporations do when they’re in doubt? Why, hire a lobbyist, of course!
Yelp enlisted the help of Laurent Crenshaw. He registered his lobbyist papers at the end of 2013 – and according to records, it appears he will be concentrating on patent reform and online libel issues.
What are Crenshaw’s credentials? A former legislative director for Darrell Issa, it’s a safe guess that he already has the right ties. And since California is one of the most tech-friendly states, Crenshaw is more than likely an expert on relevant issues.
Courts Rules For Plaintiff In Yelp Defamation Case; Website Must Reveal Info About Anonymous Posters
A landmark Yelp defamation case recently made news in Virginia. In short, a business owner successfully compelled the court to make Yelp hand over identifying information about 7 anonymous Yelp users whom he thinks committed an egregious act of defamation via the online review platform.
Though a lower court disagreed, Hadeed’s team was able to convince the appeals court judges that, in a defamation lawsuit against the anonymous posters, their client would be able to prove that the would-be defendants had never been Hadeed Carpet customers. Cleverly, during the hearing, lawyers for the plaintiff successfully reasoned that a single individual may be responsible for all of the online criticism since it’s not uncommon for one person to have multiple IP addresses (e.g., phone, desktop, laptop, tablet, et cetera).
Yelp was not pleased with the appeals court’s ruling. A spokesperson for the company explained:
“We are disappointed that the Virginia Court of Appeals has issued a ruling that fails to adequately protect free speech rights on the internet, and which allows businesses to seek personal details about website users — without any evidence of wrongdoing — in efforts to silence online critics,” Yelp spokesman Vince Sollitto said in a statement. “Other states require that plaintiffs lay out actual facts before such information is allowed to be obtained, and have adopted strong protections in order to prevent online speech from being stifled by those upset with what has been said. We continue to urge Virginia to do the same.”
Yelp Defamation Lawsuits Ends In Stalemate
In another headline-making Yelp defamation case, a jury decided that a contractor and homeowner defamed each other. Jane Perez had hired Chris Dietz to do work on her house. Unpleased with his efforts, Perez left a scathing review on Dietz’s Yelp page. Long story short, Dietz sued Perez for online libel. Not being able to reach a settlement, the case went to trial. Both sides pled their cases, the jury deliberated for several hours, and in the end the 12 men and women decided that Perez defamed Dietz and vice versa. Since both were at fault, the jury also didn’t award any damages to either party. Presumably, both had to pay their respective attorneys, and that was that.
Yelp Defamation Lawyers
Has your business been disparaged on Yelp or another online review website? Has the bad press hurt your bottom line? Do you want to speak with a Yelp defamation lawyer about your options? If yes, contact Kelly Warner Law today. Our track record is impressive, and we’ve successfully handled numerous Yelp defamation cases to our clients’ satisfaction. Don’t wait. The longer you take to clean up the mess, the more financial damage it can do. Contact Kelly Warner’s libel law team now.
Out of all the Internet laws, which is the most important? Many folks may give Section 230 of the Communications Decency Act (CDA) top honors. Some people have even speculated that Section 230 of the CDA is primarily responsible for turning the Internet into a thriving bazaar of business and innovation.
What Does Section 230 of the CDA Do?
What does the powerful statute do? Section 230 of the CDA says:
“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
Less legalese, you say? Basically, Section 230 of the CDA says you can’t blame hosting companies or website operators for defamatory statements posted by users, blog commentators or other third parties.
The Lawsuit That Could Decimate Section 230 of the CDA
At the end of 2013, a shocking district court decision had many people wondering if Section 230 of the CDA was about to be decimated – all thanks to a legal spat between an ex NFL cheerleader and a prurient gossip site.
The case was Sarah Jones v. The Dirty.com. Jones had sued the website and its owner/operator, Nik Richie, for posting false statements of fact online. Since Mr. Richie had added a comment to the posting (“Why are all high school teachers freaks in the sack? – nik.”), Jones’ lawyers argued that doing so nullified Richie’s Section 230 protections. In the end, a judge ruled that Nik Richie was liable for a defamatory post. X reasoned that Richie “encouraged” and “ratified” the original defamatory post “by reason of the very name of the site, the manner in which it is managed, and the personal comments of defendant Richie.”
When news broke of the decision, to put it bluntly, the Section 230 shit hit the fan.
Eager to voice discontent, and alarmed by the implications of the district court’s Section 230 decision, many businesses and organizations banded together to create amicus curias – friend of the court briefs – in support of Nik Richie and TheDirty.com. And on November 19, 2013, four different groups submitted four different amicus briefs to the court. Below is a summary of them.
What is An Amicus Curia?
An Amicus Curias, also known as a “Friend of the Court” briefs, are prepared by 3rd party that is not involved in a given lawsuit, but has a vested interest in its outcome. Usually, an amicus curia offers information related to the case in an effort to assist a court.
Opinion Corp. Pissedconsumer.com
Opinion Corp (a.k.a., pissedconsumer.com) filed an amicus brief in response to the Sarah Jones defamation victory over Nik Richie and TheDirty.com. Its main points are as follows:
- “Immunity is not forfeited unless the interactive service provider actively participates in the creation or development of the specific illegal content posted by the third party.”
- Since Nik Richie’s amendment was not a false statement of fact, and was added after the fact, it should not be considered defamatory.
- The District Court held that the mere nature and name of the website “encouraged” defamation. The Opinion Corp. friend of the court filing opines that the addition of “encouragement” as “an acceptable over rider of Section 230 of the CDA means judges will have free right to analyze websites based on” site names and subjects.
- Since Section 230 of the CDA specifically prohibits protection for copyright infringement, “analogizing contributory copyright infringement to ‘encouraging defamation’ is also misplaced.”
- The “Congressional intent” of Section 230 of the CDA is to “provide broad immunity for website operators.”
- “Non-defamatory responses are not part of defamatory statements and do not effect immunity.”
Online Service Providers Amicus Brief
Amazon, AVVO, Buzzfeed, Cable News Network, Curbed.com, Gawker Media, Magazine Publishers of America, The McClatchy Company, The Reporters Committee for Freedom of the Press, TripAdvisor, Yahoo and Yelp also submitted a joint friend of the court brief. Its main points are summarized below.
- In Jones v. Dirty World Entertainment Recordings LLC, “The court suggested that a website can be liable just because it selects posts to publish, does not verify their accuracy, and fails to remove them upon notice. But these are all ‘publisher’ functions with Section 230’s scope.”
- Affirming the current district court ruling would be disastrous because “if it is upheld, providers will have the perverse incentive not to review third party content at all, for fear of liability.”
- In the past, eight circuit courts endorsed a “broad immunity stance” that should be upheld as the standard.
- The district court’s ruling is dangerous because it means that “if a judge or jury finds that a website is somehow offensive and encourages users to submit content, the website provider loses immunity.”
Social Media Amicus Brief
Ebay, AOL, Facebook, Google, Linkedin, Microsoft, Tumblr, Twitter and Zynga also joined forces in an amicus curia focusing on Jones v. Dirty World Entertainment Recordings LLC. What did the social media giants have to say? Bullet points are below.
- “The protection afforded by Section 230 of the CDA has been and remains critical to the development and robustness of the Internet and interactive services…”
- The Jones court based its decision largely on Fair Housing Council v. Roomates.com LLC. The brief, however, argues that the case was misapplied in this instance because the Roommates’ opinion makes clear that unless an ISP “does not itself participate” in creating or developing content, it should be able to claim immunity under Section 230 of the CDA.
- Appealing to economic sensibilities, the social media-backed brief hammers home the idea that Section 230 creates an environment which allows the Internet to be “a medium for free expression and commerce.”
- Warns that if the Jones verdict stands as is, moving forward, free speech would be jeopardized because folks “would have little choice but to yield to a ‘heckler’s veto.’”
Amicus Briefs For Non Profits
The American Civil Liberties Union, ACLU of Kentucky, Electronic Frontier Foundation, Center for Democracy and Technology, Digital Media Law Project, Public Participation Project, Wendy Seltzer and Adam Holland also got in on the Jones v. Dirty World Entertainment Recordings LLC amicus brief action.
The associations brief reiterated much of what other concerned parties argued. They even acquiesced that “[a]ppellant TheDirty.com hosts frequently offensive – and indeed, sometimes actionable – gossip.” Notably, the watchdog groups reminded readers that “removing website from the legal line of fire when their users engage in actionable behavior was one of the primary motivations behind the enactment of Section 230.”
Do you run an online business that is being sued for defamation? Or maybe you are looking to file a defamation lawsuit against an online operation? Kelly Warner Law handles both plaintiff- and defendant-side Internet libel lawsuits. Our track record is excellent. We know how to handle situations swiftly, so you can get back to business sooner. Get in touch today.
Cheryl Sanders’ didn’t want a cookie-cutter wig. Oh no, no! She wanted a custom-made coif. So when a non-bespoke hairpiece showed up at her house, Sanders told FedEx to return the wig to sender. FedEx tried, but the sender refused it.
If this were a Friday night real-life crime show, a dapper reporter would saunter onto the screen right about now and say something like: “And though nobody could have known, the refusal of the wig launched one of the most contentious business defamation lawsuits in recent memory.”
[Resume Image Montage]
Now, of course this is not the most contentious business defamation lawsuit in recent memory (they always exaggerate on real-life crime shows!). It is, however, a classic case of a merchant v. customer disagreement that devolves into an online pissing match, which ultimately crosses the libel line. And these days, with the rise of review sites, the tale is becoming oh too common.
How This Merchant v. Customer Business Defamation Lawsuit Began
Cheryl Sanders bought her mother, who was battling breast cancer, a wig from Constance Walsh’s shop, Wiggin Out. When Sanders inquired into the provenance of a particular hairpiece, Walsh allegedly assured Sanders it was a custom-made wig. Perhaps the older Mrs. Sanders saw someone rocking her exact doo at a retirement party, a confirmation or a bat mitzvah – but somehow the Sanders ladies discovered the wig was not custom and tried to refuse the hair by FedEx-ing it back to Walsh at Wiggin Out.
After an Initial Disagreement Over Quality and Cash, Parties End Up In Small Claims Court
To make a long story short, Walsh took Sanders to small claims court over non-payment for the wig. The wigmaker lost because the judge said Sanders’ attempt to return the item inoculated her from having to pay for the wig. (The assumption being that Wigging Out must’ve had a return policy that Sanders honored.)
Advantage, Customer. Cue the Anonymous RipOff Report Trash Talk
Two months after small claims court, Walsh logged on to RipOff Report and penned a rebuttal to Sanders’ criticism. Prefacing each paragraph with the word “Fact:”, Walsh delineated her version of the merchant v. customer saga. She also accused Sanders of fabricating the infamous FedEx return slip.
Several months after the RipOff Report posting, an anonymous person arrived on Yelp and accused Sanders of city corruption. You see, Sanders works for Anaheim’s public utilities department. And according to the unknown Yelper, Sanders had a hand in picking government contractors and accused her of abusing that responsibility. According to Sanders, though, her department has nothing to do with picking contractors.
Oh Yeah, Merchant!? Get Ready For An Online Business Defamation Lawsuit
Judging from available media reports, Cheryl Sanders must have suspected Walsh as the trash-talking Yelper, because Sanders sued Walsh for cyber libel after the posting. And apparently, Sanders did not mess around when it came to building her case, going so far as to hire a digital forensic specialist to investigate the source of the anonymous, libelous Yelp posting. Low and behold, the specialist came back with data, and it pointed to Walsh and Wigging out.
When confronted with the lawsuit and information, Walsh originally admitted to penning the rebuttal on RipOffReport.com, but denied authoring the anonymous posts on Yelp. After being confronted with Sanders’ expert’s information, however, Walsh finally fessed up and switched her defense from “it wasn’t me” to “everyone knows that reviews sites are people’s opinions, not fact, so my comments on Yelp weren’t defamatory.”
Judge Sides With Customer In This Business Defamation Lawsuit
Unfortunately for Walsh, the judge didn’t see things her way. Bluntly stated, he was not impressed with her arguments and ultimately reasoned that the wig peddler was hostile, malicious in her actions, and as such ordered her to shell out 24K to Sanders for attorney’s fees and other process-related costs.
Predictably, Walsh isn’t thrilled with the verdict. Like an Oz inmate stuck on innocence, when asked for reactions after the ruling, Walsh’s attorney insisted that this business defamation case would have turned out much differently if only he’d been allowed to enter evidence from the small claims case.
Speak With A Business Defamation Attorney Today
Are you embroiled in a contentious defamation lawsuit? Do you want to speak with an attorney well-versed in slander and libel law? If so, contact Kelly Warner Law. Our dedicated team of defamation attorneys has helped many clients through, what can be, an extremely frustrating time. We know how to make things right. Get in touch today.
Are copyright contracts, which confer online review rights to doctors, legal? Many have tried, but it looks like those contracts aren’t holding up well in court, and doing even worse in the court of public opinion.
Take, for example, a recent story featured on Ars Technica. (Medical professionals, pay heed: in the end, the patient prevailed. Take it as a warning to be wary of boiler plate online confidentiality agreements; they can get you into more trouble than they’re worth. And if you want to sue a patient for online defamation, be sure to find an attorney that understands both cyber libel and medical practice statutes.)
The Dentist & The Patient: A Tale of Trying to Prevent Negative Online Doctor Reviews
In 2010, a man was experiencing escalating levels of dental discomfort. So, like any good HMO recipient, off to his insurance provider’s list he went.
“Here: Sign This Copyr….I mean Confidentiality Agreement.”
But before Dentist and Patient got down to the business of teeth debugging, Doctor asked Patient to sign the “Mutual Agreement to Maintain Privacy.” Brass tax, the copyright contract was an attempt to control post-visit online commentary of his experience.
The agreement — brain child of a company called Medical Justice — covered both online and print publications. An arguably ingenious idea, the contract supposedly rendered all comments about her services the copyright of the dentist.
Apparently This Don’t Go Perfectly
Now, if patient and dentist (in this instance) saw eye to eye, you wouldn’t be reading this. So, what happened? Long story short, Patient ended up giving Dentist a 1-star rating on Yelp. A barrage of unflattering remarks followed suit.
And sure enough, believing the Medical Justice contract was legally sound, Dentist Office contacted Yelp, explained that it “owned” the copyright to Patient’s commentary and asked that it be pulled from the website. Also per the contract, Dentist began billing Patient $100 a day for copyright infringement.
Copyright Contracts Class Action?
Unwilling to comply with Dentist’s demands, Patient hired a lawyer. A class action request quickly followed. The goal? Nullify doctor copyright contracts. The argument? Such agreements violate business laws and professional dental ethics.
A Patient Victory
Before long, the dominoes started to fall. Medical Justice washed their hands of the situation and discontinued the issuance of the copyright contract. Dentist boarded her office windows and allegedly couldn’t be reached for comment.
Patient is seeking financial reimbursement for medical and legal fees. But ultimately, Patient hopes that the public, as well as private companies, take notice of these doctor copyrighting contracts and debate their validity.
Contact An Attorney Who Has Successfully Handled Online Review Cases
Are you involved in a medical defamation situation? Do you have questions about copyright contracts? Kelly Warner is an experienced legal team that has successfully dealt with a multitude of online review cases. Contact us today to begin the conversation.
Homeowner v. Contractor is a tale as old as time. Books have been written and movies made about the battles between people who build homes and the people who live in them. So, as you might imagine, home development lawsuits are a dime a dozen. One such case is currently being heard in Virginia. Contractor Christopher Dietz is suing one of his clients, Jane Perez of Fairfax, for defamation over a Yelp! review of his company.
According to reports, Perez and Dietz were high school classmates. When Perez bought a townhouse, she contracted Dietz to work on her home.
It didn’t go well.
Perez accused Dietz of ruining her house and generally not delivering on contract promises. Following the present-day playbook for airing discontent, Perez went to Yelp! After detailing her experience and opinions, Perez ended her missive thusly: “bottom line do not put yourself through this nightmare of a contractor.” She also intimated that Dietz “was the only one with a key” to her home during a time when some jewelry went missing; Perez also suggested Dietz trespassed. Dietz, however, was never brought up on theft or trespassing charges.
Long story short, Dietz filed a $750,000 defamation lawsuit against Perez, arguing he lost $300,000 worth of business as a result of her Yelp! reviews. He also asked for a preliminary injunction that will keep Perez from writing any more reviews about his business until the matter is resolved.
On Wednesday of last week, a judge agreed with Dietz and ordered Perez to take down any comments alleging theft or discussing the legal action at hand.
Why Isn’t Yelp! Responsible For Defamatory Reviews On Their Website?
You may be wondering: why isn’t Yelp! Liable for the reviews on their website? Answer: safe harbor protections outlined in Section 230 of the Communications Decency Act. Basically, Section 230 protects website operators from being held responsible for material posted on their site by third parties.
That said, if a website operator promotes defamatory material on their site, or raises its profile in some manner, they may be held liable for libel, because doing such is essentially creating new, possibly defamatory, material.
Review Backlash: How Leaving A Bad Review Can Hurt You Too
The urge to alert fellow consumers about a bad service or company is strong for many people, but it could end up backfiring – which is exactly what happened to Jane Perez. In her quest to air what she felt were Dietz’s wrong-doings, Perez ended up doing a little damage to her own online reputation. How? Well, since Dietz responded to her original diatribe on Yelp!, his reaction to her post was the first thing that showed up when you googled her name. As a result, she removed the original message.
If you want to sue someone for defaming you on an Internet review site, get in touch with Kelly / Warner today. Our legal practice focuses on Internet defamation and we’ve handled many slander and libel cases. Get in touch today to get your business back on track.
Wow! The globe was abloom with defamation — online and off — this week. From the UN to the Ukraine, slander and libel lawsuits, litigation and regulation took center legal stage.
Defamation Around The World This Week
The United Nations revived the age-old debate about blasphemy (religious defamation) laws. Talk centered around how the proliferation of both the Internet and mobile devices makes it unreasonable for officials to expect countries with free speech traditions to take action against distasteful media that finds itself online.
Palestinian President Mahmoud Abbas’ son filed a defamation lawsuit against Jonathan Schanzer, a reporter for the Foreign Policy Group, a division of the Washington Post Company. He’s suing for 5 counts of libel related to a tobacco-related article Schanzer wrote that insinuated Abbas was exploiting his dad’s connections for personal profit.
Newspapers over in the Ukraine took a page from the SOPA-protest movement this week. In protest of their country’s attempts to re-criminalize libel, midweek, many of the print media outlets published a front page that only read “Our front page is empty because they want to silence us and take away our right to know the truth.” And like officials in the U.S. caved after the Internet blackout day, so did the officials in the Ukraine.
And in the Philippines, all bytes broke loose this week when the President signed an aggressive cybercrime bill into law. The new regulation effectively makes Internet sex websites illegal, and it also crimilizes online libel. In protest, “Anonymous Philippines” trashed a few government sites.
Personal and Small Business Defamation: Yelp! And The NY Daily News Make News
A dentist in Portland, Oregon lost a Yelp!-focused online defamation lawsuit. When asked how he felt about the verdict, the doctor blamed Section 230 of the Communications Decency Act.
A man in New York is suing the New York Daily News for publishing his picture as the feature imagine about an allegedly shifty dentist who was brought up on fraud charges. Sounds to me like a clear case of false light.
Celebrity Defamation News: Mayweather, Spears, Travolta and the ICP
In celebrity defamation news, Floyd Mayweather and Manny Pacquiao settled their defamation squabble, which clears the way for them to get in the ring. Both are handling their own legal costs and its over as quickly as it began. Ms. Britney Spears also found herself dealing with some defamation issues this week. A judge ruled that the X-Factor judge will not have to testify in a defamation lawsuit against she and her mother that was filed by Sam Lufti in 2009. Why? Brit’s still under a conservatorship.
John Travolta, playing the Anti-SLAPP card, won a libel face off with Robert Randolf, author of the salacious tell-all “You’ll Never Spa In This Town Again.” The Insane Clown Posse thrilled the hearts of ‘los and ‘lettes nationwide by filing a lawsuit against the FBI for listing “jugaloos” in the 2011 National Gang Threat Assessment watch list.
Politicians & Defamation: From Italy To Iowa, Elected Officials Were Knee Deep In Slander and Libel
In local government defamation news, an outgoing city manager in Port Richie, Florida filed a defamation lawsuit against a state representative over comments made about her severance package. Deep in the heart of Texas, the mayor of Irving is being sued by a community activist because she allegedly called him a “whore” on a local television news interview. Interestingly enough, the plaintiff in the case isn’t asking for any money, just civility moving forward from the Mayor. Gotta love them Texans.
A New York judge dismissed a $60 million lawsuit against disgraced ex-governor, Elliot Spitzer, that centered around an article on Slate.com, in 2010, entitled, “They Still Don’t Get It.” Meanwhile, in Iowa, Congressman Leonard Boswell filed a defamation lawsuit against former challenger, Ed Fallon. Fallon, an occupy movement activist and daily Internet talk show host, allegedly accused Boswell of trying to bribe him not to run. Boswell says Fallon’s claims are hogwash.
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.
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) 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.”
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 – 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.”
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.
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.
Sign up for the Kelly Law Firm newsletter to keep up with the latest news about the Medical Justice FTC investigation and all the latest Internet law-related happenings.
 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.
 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.
 About Medical Justice. Retrieved from http://www.medicaljustice.com/ on 12/5/2011.
 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.
 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.
 Medical Justice Myths. Retrieved from http://doctoredreviews.com/medical-justice-myths/ on 12/5/2011.