If an Outrage Is Clever Enough, Is It Still an Outrage? Or, Kudos to Boalt Hall and Santa Clara Law School

Thanks to a phone call from a writer for BNA, a few months ago I learned of a  clever new “product” from a business called “Medical Justice.”  Medical Justice, based in Greensboro, North Carolina, sells various kinds of protection to its physician clients.  (See their web site at http://www.medicaljustice.com/internet-libel-physicians.aspx.) These include measures they say will prevent medical malpractice suits, deter claims for refunds, and help physicians pursue counterclaims against plaintiffs’ expert witnesses.  The group also sells “anti-defamation packages” to its physician members, either as part of full membership or as a stand-alone service for $625 for the first year.  These packages apparently include contracts for the physicians’ patients to sign, contracts that assign to the doctor the copyright in any on-line reviews the patient writes.

As I understand it (and I am not an internet law maven), this agreement purports to give the doctors, as owners of the copyright, the power under the Digital Millennium Copyright Act, to demand that a website remove “their” copyrighted material.   Of course, this is unlikely to be used for favorable reviews, but only for unfavorable ones. Yelp or its equivalents then get to show to the world only those reviews of the doctor that the doctor wants to have displayed.  Without this assignment of copyright to the physician, he could sue the patient (presumably, former patient) for libel or slander, but he would have to hire an attorney, take the initiative to sue, and, in most cases, either lose outright or win a pyrrhic victory against a judgment proof defendant.

If this effort to squelch public criticism isn’t illegal, it should be.  For a professional to want to stop public criticism of his or her services is understandable; for us to allow it to happen seems unconscionable.   One might be able to argue that the contract is void as against public policy or as unconscionable.  I think perhaps a more promising approach is to argue that such a restriction is an unenforceable violation of public policy.  For example, as early as 1963 in the California Supreme Court ruled that an advance waiver by a patient of any malpractice claims against a hospital is unenforceable as violating public policy.  A related approach would be to argue that such a restriction on the patient’s right to use the internet to discuss his or her doctor violates the doctor-patient relationship, a status that has obligations not always modifiable by contract.

Happily, two of our sister institutions are taking up the fight. The Samuelson Law, Technology & Public Policy Clinic at Boalt Hall – er, wait, is that Berkeley Law School? – and the High Tech Law Institute at Santa Clara University have created a website to publicize this travesty:  http://doctoredreviews.com.   I applaud them.  (Positive review, two thumbs up, etc.)

Feel free to call me an idiot in the comment section below or on any website you want.  Whenever I look at a review site – for a restaurant, a hotel, or an auto mechanic – I expect to see some negative, even outrageously negative, reviews.  I try to keep a sense of proportion about them – a few people are going to be unhappy with any kind of service.   The price of free speech is sometimes annoying speech and sometimes just plain wrong speech.  Apparently Medical Justice thinks this price is too high to pay (unlike the dollar price for their services).  This makes me wonder what kind of doctors they are  (other than putative doctors of spin).

Hank Greely