Eric Goldman is a professor at Santa Clara University and as a former general counsel to Epinions.com has a long standing view of free speech that is, to say the least, one sided. He seems to always support a very liberal interpretation of the scope of free speech in his blog posts, comments, lectures, and presumably in his classes. Now he has joined with UC Berkeley, that bastion of conservative and pro-business thought (tongue firmly implanted in cheek), to launch an attack website against an organization named "Medical Justice" that seeks to assist doctors being attacked by defamatory comments online. I would like to think that this site is truly focused on criticizing the tools offered by Medical Justice. For instance, Medical Justice encourages physicians to take copyright ownership of future comments made by patients so they can use a DMCA takedown notice if a comment is not to their liking and have it removed. I agree with Goldman that this approach is very problematic from a legal standpoint, raises some unanswered questions about the ability to waive constitutionally protected rights, and from a practical standpoint introduces a new risk to physician reputations. My opinion, and I have told many physicians exactly this, is that it is not a wise choice to use this tool or business practice to curb or curtail or prevent negative commentary. So in this sense, I agree with Goldman and his UC Berkeley free speechers. That is...substantively I agree with the primary legal arguments they make.
But the content on the website is misleading. It's not a balanced treatment of the problem. The site is an advocacy site...it advocates from the standpoint of free speech protecting a certain class of consumers and trumping all other rights to the extreme. And instead of offering real solutions, and recognizing that the playing field is unbalanced and against our medical professionals, it simply attacks one ill conceived effort to re-balance that playing field. So, in a nutshell, here is the real problem:
Physician after physician calls Traverse Internet Law to ask for our assistance. Some of these doctors are the tops in their fields with no malpractice claims, no ethics issues and no complaints for 40 years of practice. And then one day a patient who had an excellent outcome decides to criticize the doctor online and demands money from the doctor or the attack will escalate. As the doctor attempts to address the concerns of the former patient, it becomes apparent that there is no problem with the treatment and this is an extortion attempt. Since consumers generally conduct extensive research on doctors, criticism does not have to show up high in search results. Just about anyone can jump on the web and successfully "optimize" an attack against a physician so that it will show up high enough in search results to have an impact. The doctor cannot respond to the attack or criticsm or defamation because HIPAA legally prohibits a specific response. And since details imply truth, any response would have to be generic in nature and not address the specific patient's complaints and appear unconvincing and make the problem worse. Now these complaints aren't what one would normally assume....a comment of dissatisfaction. And some of these complaints are all too often targeted at the deep pockets of doctors and include doctored photographs and outrageously false claims of sexual deviance or profoundly illegal actions. One "review" like this will offset 100 positive and honest reviews and place at immediate risk the economic viability of a physician's practice. So the doctor sometimes pays off the extortionist and the attacks cease. You can imagine, and rightfully so, that this is a ripe arena for extortionists to anonymously attack doctors and demand payoffs. Extortionists who have never been patients...but have access to a computer keyboard somewhere in the world. But more that happy to leave a "doctored" legacy that will live on forever in the online world and for generations to come unfairly impugn the character of a medical professional who has made a lifelong commitment to serve the public.
So instead of simply criticising the method by which a very serious problem is being attacked, and presenting the issue merely from the standpoint of free speech and copyright abuse, why not treat the issue in an holistic manner and offer some constructive solutions? The first obvious need is to amend the HIPAA law to permit doctors to defend themselves. Yes, even doctors should have their first amendment protected rights to free speech. Why not encourage Congress to recognize the free speech rights of physicians? So that the marketplace of ideas can operate without artificial impediments. So that the give and take of robust debate will effectively educate the consuming public. And so that free expression from all fronts and from all sides can be heard. That's free speech, Mr. Goldman. Tell your UC Berkeley friends that free speech isn't reserved exclusively for the consuming public, the disenfranchised, the downtrodden, those in despair, or the scofflaws of the web.
Now go launch a site that encourages Congress to amend HIPAA so doctors can exercise their free speech rights. Be a true advocate for free speech. If such a change was made to HIPAA Traverse Internet Law would lose a big part of our law practice...but it is still the right thing to do.
If you believe in freedom of speech, you should believe in freedom of speech for everyone.