A recent article on Ars Technica has re-ignited the debate about a company called Medical Justice that many feel is, or at least has the potential to, use copyright law in an attempt to silence negative opinions about doctors.
The way the system works is by having the doctor, who is a member of their service, give patients as part of their paperwork, a contract giving the doctor all rights to any reviews they write. The doctor then can use copyright to have unwanted reviews removed from the Web.
While the story is actually old, first noticed a month ago and previously covered in the 3 Count, the return of the story is a chance to discuss it in greater detail and ponder the issues it raises.
So is the system legal and could you be signing away your copyright the next time you visit the doctor’s office? The answer is, unfortunately, unclear.
How the System (Theoretically) Works
Doctors, when it comes to online reviews, admittedly have something of an uphill battle. Section 230 of the Communications Decency Act protects sites that host libelous speech posted by users. This prevents doctors, as well as other professionals, from being able to get false statements removed.
However, doctors face an additional challenge is that privacy laws often make it difficult or impossible to respond to negative reviews as they can’t disclose any patient information without permission. This can make it difficult to counter any negative statements.
To get around this, doctors have attempted to find ways to work around the law. Some have tried a series of “gag” orders blocking patients from making reviews and others have said that, by posting reviews online, they sacrifice their right to privacy (thus giving the doctor the write to respond).
The latter approach has been shot down by the Department of Health and Human Services, and the former has, generally, been rejected by review sites.
The copyright angle used by Medical Justice sidesteps those issue and lets doctors use the DMCA to force hosts to remove the now “infringing” reviews or face liability themselves. However, this angle to is fraught with its own perils.
First, it’s very likely that the transfer of copyright would be ruled invalid. While transfers of copyright are common, the standard for doing so is very high and its questionable, at best, whether a court would accept a transfer as part of a packet of new patient documents, especially when a person is in need of medical attention. Even if it does work, as pointed out by the site Doctored Reviews, the doctor can only file takedown notices for reviews they are certain were written by a patient who signed one of those contracts.
If both the transfer and the certainty of review ownership are not in place, the takedown notice itself could open the doctor up to legal repercussions under the DMCA.
All in all, the system is loaded with legal peril and this may be why, according to the Ars Technica article, there is no evidence of it actually being used. Still, the issue is far from theoretical as at least one doctor attempted to get a Yelp review removed using such a gag order.
The question then becomes, what can patients do?
How to Protect Yourself
To be clear, at this time it seems very few doctors use these kinds of gag orders at all. The majority seem to either be ignoring the issue of false reviews online or dealing with it in other ways.
Still, if you are a new patient signing paperwork, it’s probably worth being aware of this problem and reading what you’re signing to see if there is any mention of reviews and restricting your rights to post them.
However, if you do receive such a contract, you’re pretty limited in what you can do. If you need urgent medical attention, not signing the document could delay critical care. But even if it’s a routine visit, you may be limited in your other options depending on where you are located.
At this point, you would have to make a very difficult decision as to whether it was worthwhile to sign the agreement, knowing it to likely be invalid, try to negotiate out of the contract or simply walk away. There’s no easy answer to that situation.
So, while you’re not likely to be faced with such an agreement, if you are, it’s without a doubt a thorny situation.
Bottom Line
In my opinion, doctors that go down this route are missing the point. These contracts restrict their patients ability to post reviews, good and bad, while doing nothing to prohibit non-patients, including competitors and other enemies, from defaming the practice (supposedly the problem). Combine that with a slew of legal headaches and dangers, it’s a situation where the doctor is undertaking a lot of risk for very little reward.
That being said, the doctors are right that they are in a difficult position. However, the alternatives of this position are even worse over all, especially for patients.
While it’s understandable that doctors want to defend themselves against false reviews and defamatory statements, this is an extreme overreaction to the problem. Asking patients to sign over rights, privacy or copyright, to receive medical care is simply too much.
Hopefully, the doctors that are doing this are unaware or simply have not adequately thought through what they are doing. I would hate to believe that any member of the medical community would knowingly put their (relatively trivial) interests ahead of their patients ability to receive care.
However, that is exactly what these contracts do for those who read and object to them.
@nusuni But politicians have excellent chiropractors…
@plagiarismtoday @nusuni Heh, agreed, that contract is crookeder than a politician’s back.
@nusuni I agree. However, it’s worth noting that the contract does try to claim to provide some benefit to the patient by promising them extra privacy rights in exchange for signing. However, the loopholes that the doctors are claiming they won’t exploit were closed some time ago. So, while your evaluation is accurate, it’s not what the contract was actually claiming.
Still unbalanced as can be though…
If this ever went to court any judge in their right mind would toss it out on the contract basis alone…
A good judge would split up the contract into parts and say the patient is already paying the doctor for a service (treatment), and the doctor is providing the service. Thus both sides are equal.
However, the second part that transfers ownership of any reviews the patient ever writes (thus “never-ending”) is a one sided clause that provides no benefit to the patient and all the benefit to the doctor – and thus would be illegal by most standards.
That’s why I love contract law… everything has to be fairly balanced. Even if both parties completely agree 100% on a contract and sign off on it – a judge can still dismiss sections of it as being too lopsided if a lawsuit ever came up.
@econwriter5 Yeah, it’d be nice if I could just visit a doctor and not have to worry about copyright on top of everything else. Of course, it’d also be nice if doctors could focus on treatment and not these issues as well. This is depressing…
Like health care in the States wasn’t complicated enough! You make a good point that competitors, drug reps even, and just about anyone not a patient, poses a larger potential problem than patients. There will be an inevitable butting of heads (policies?) as the medical profession follows behind law and the rest in its embrace of technology and social media.