Recently, I emailed members of my work group a blog post by Eric Goldman on the services of Medical Justice, a company that physicians join to fight Internet defamation, including criticisms from patients that are posted on public and social media websites.  I got several questions from colleagues about how this worked, so I learned more about this phenomenon, about the the laws behind it, and how it fits in with other strategies that companies have for dealing with what they consider unfair comments on the Internet.

How is that social media sites don’t incur legal liability when people can say so many mean things to each other and about each other on their sites?  If your students say untrue things about you on ratemyprofessors.com, can you sue the site for defamation?  The answer is probably not, and one of the reasons is 47 U.S.C. § 230, which states that “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. “  At the same time there are limits to this immunity; there can still be criminal liability and intellectual property laws are exempted.

In addition, individuals can still be liable for defamation under these circumstances.  Companies are suing them for criticisms online in suits that are often called Slapps, Strategic Lawsuit Against Public Participation, a concept that predates the Internet.  In other cases, online retailers require that sellers agree to terms and conditions that preclude posting negative reviews.   Medical Justice uses a different tactic by making use of the limit in 47 U.S.C. § 230 for intellectual property infringement and of 17 USC §512, the Digital Millennium Copyright Act’s, take down provision in order to provide what it calls a “vaccine against libel.”  Part of §512 limits an internet service provider’s liability if it responds to copyright take down notices by removing the infringing content.    Doctors participating in the Medical Justice program require patients to sign a contract agreeing that they will not publish comments about their treatment except in approved fora.  If they do publish comments, copyright is preemptively assigned to the doctor.  This means that if the patients participate on physician rating sites, the physician can contact the Internet service provider and demand a take down as the copyright holder.

Medical Justice notes that the contract does not mean that a doctor will demand a take down of any comment, only of ones that are “fictional or slanderous.”  It does not prevent patients from complaining to consumer agencies, licensing boards, or others.  But how many patients understand what they are signing at the time of treatment? As Goldman points out, the inequality of bargaining position may make these contracts unconscionable.