Medical Justice: Stifling Speech of Patients with a Touch of "Privacy Blackmail"
Whether you’re buying a car, looking for a nearby cafe or hunting for deals on sneakers, the Internet – and especially crowd-sourced online review sites like Yelp – can help you decide which businesses to patronize. But one company is taking away users’ voices when it comes to reviewing medical services. Medical Justice, started in 2002, is a member-based service for physicians that works to restrict unflattering reviews of participating doctors. Patients who go to these doctors sign a contract that assigns, in advance, the copyright in any online review to the physician being reviewed. A doctor who doesn’t like an unflattering post can then use a copyright infringement claim to have the post removed.
We’ve have long opposed these and similar efforts to misuse copyright to stifle speech. And we’re very glad that a new site, called Doctored Reviews, is explaining in detail why the business model promoted by Medical Justice is bad for patients, bad for doctors, bad for review sites – and especially bad for online free speech. As Doctored Reviews points out:
Imagine if other companies used similar contracts. Before you get a haircut, before you buy a six-pack of soda at the local grocery store or before you order a meal at a restaurant, imagine you were required to keep quiet and never post your opinion online about the product or service you purchased. Sound ridiculous? It does to us, and we think it’s no less ridiculous when doctors demand this of their patients.
The outrageous provisions don’t end there: as Courtney Minick pointed out on Justicia, the contract includes a provision that prevents the consumer from exercising her right to anonymous speech when reviewing a doctor and even mandates that a patient “will not denigrate, defame, disparage, or cast aspersions upon the Physician; and (ii) will use all reasonable efforts to prevent any member of their immediate family or acquaintance from engaging in any such activity.” This means that the patient is responsible for the online comments of friends and family members (“will use all reasonable efforts to prevent”), even though none of these individuals signed the contract.
Why would patients sign these anti-review contracts? (Assuming, of course, that patients even notice what they are signing in the stack of papers the receptionist hands them when they are in need of medical care.) Some might call it privacy blackmail; in return for a patient forfeiting her right to publish online criticisms, doctors promise not to share patient data with marketers. But these promises mean little: doctors are already forbidden from sharing such data without prior authorization from patients. The Medical Justice contract simply guarantees the doctors won’t ask for that authorization. Learn more about marketing and medical privacy here.
So, what is the solution for doctors who are concerned about their online reputations? In the words of Justice Brandeis:
If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.
In less poetic terms: speech you disagree with should be fought with more speech, not censorship. We hope that doctors embrace this mantra and tell Medical Justice to take a hike. Doctored Reviews has tips for doctors looking to respond to online criticisms as well as advice for patients on refusing to sign Medical Justice’s anti-review contracts. And we’re excited to see that some reviews sites like Yelp and Avvo are refusing to honor these anti-review contracts. If you are with a review website and want to learn more about your obligations to respond to takedown notices from Medical Justice, see this guide.
Want to exercise your speech and tell Medical Justice what you think about their plan to cut off the voices of medical patients? You might leave a few comments on their blog (though apparently they aren’t always welcoming of robust discourse in blog comments) or send them a quick tweet, but perhaps the best way to get your message across is to write a review of their services on the Greensboro North Carolina Yelp.