June 01, 2011
Updates on DoctoredReviews.com and Medical Justice
By Eric Goldman
You may recall our April launch of DoctoredReviews.com, a website explaining why Medical Justice's form agreement, the "Mutual Agreement to Maintain Privacy," was a bad deal for doctors, patients and review websites. See a list of the media coverage on the site's launch.
Since then, there have been three developments of interest.
First, Timothy B. Lee at Ars Technica covered his experiences with a dentist who asked him to sign the Mutual Agreement to Maintain Privacy and what happened when he balked at signing (predictably, there was no negotiation, and he was booted from the office). The entire article is a great read, but this line especially caught my eye: "we began to wonder if Medical Justice was taking advantage of medical professionals' lack of sophistication about the law." Watching the doctor community's response to our site launch, I had been wondering the same thing. Doctors and other healthcare professionals are very scared of the combination of privacy laws and unfettered consumer reviews; and Medical Justice has a several year headstart in (mis?)educating them about the law. It's clear that our advocacy site alone isn't enough to do the necessary counter-education.
Timothy also hammers on how Medical Justice has been backpedaling about the efficacy of the Mutual Agreement to Maintain Privacy. Medical Justice publicly claims that the agreement is principally useful for dealing with reviews from the doctors' competitors or ex-employees or other fraudsters. This is a baffling argument because (as Timothy points out) those folks undoubtedly haven't signed the Mutual Agreement to Maintain Privacy, so doctors can neither assert a breach of the agreement nor the assigned copyrights in those reviews. (And asserting copyright to the review websites could lead to 512(f) claims). There is a massive logic disconnect between the purported goals of the Mutual Agreement to Maintain Privacy and the legal effect of the contracts. For an outfit that was clever enough to develop a way to hack 47 USC 230 through a copyright workaround, the response that the agreement should be used only against people who haven't signed it is so oddly sophomoric that it makes me wonder about the sincerity of the proffered explanation.
Timothy followed up his initial story with a postscript. In it, the dentist who claimed he'd never enforced the Mutual Agreement to Maintain Privacy backpedaled and admitted that he had, in fact, help drive a negative review off the Internet. On the plus side, the dentist publicly acknowledged that the Mutual Agreement to Maintain Privacy wasn't a good deal for him, and he said he wouldn't renew with Medical Justice. Hey doctors and other healthcare professionals, I hope you took note.
Second, John Swapceinski of RateMDs made a post entitled "Medical Justice planting glowing reviews on RateMDs.com." Apparently, John saw some early activity from a new Medical Justice offering called the "Review Builder Program" that Medical Justice claims will help patients leave reviews from doctors' offices. Timothy at Ars Technica has plenty of sharp words about the program and the possibility of Medical Justice duplicity.
Third, we are working on Phase 2 of the DoctoredReviews project, during which we identified another doctrinal oddity: doctors, based on their purported copyright ownership, can obtain and send 512(h) expedited subpoena requests in an effort to unmask the review author--in a process that is outside of public view and without any substantive judicial oversight. Obviously, review websites can (and should) push back on these subpoenas, but I have some reason to believe that the Mutual Agreement to Maintain Privacy's purported copyright assignment is producing unmaskings that would not occur if supervised in a court of law. I'm adding this attack on privacy to the taxonomy of abusive takedown practices I'm developing.
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