Posting your opinions publicly on the internet can sometimes land you in hot water, especially if you're a public figure. That said, individuals in America have the right to free speech, and many websites such as Yelp exist to provide users a place to sound off on local businesses and post their opinions, good and bad, for other users to read. These services allow potential customers to get an idea of what to expect from a business before spending their hard-earned time and money there.
When his New York dentist overcharged him, submitted his records to the wrong insurance company, then refused to provide copies of his records to him so he could submit them properly himself, 42-year-old Robert Lee thought nothing of posting bad reviews to websites such as Yelp and DoctorBase. "Avoid at all cost! Scamming their customers!" he posted, hoping to warn others of the careless acts he had fallen victim to. Shortly thereafter, dentist Stacy Makhnevich demanded the sites remove the comments and threatened to sue Lee. Her practice began sending him fines in the form of $100 daily invoices for infringing on her copyright provisions.
So how did this happen? With many users basing their business decisions on user review sites like Yelp, businesses have a very large stake in making sure the reviews and opinions posted about them online are appropriately glowing and positive. One could argue that the best way to do that would be to simply provide excellent service, but some businesses are going another route, and requiring their clients to sign anti-defamation contracts.
Such contracts have become more widespread in recent years. They generally contain a clause that insists clients not post any public comments about the doctor, in return for the doctor not evading federal privacy protections regarding patient information. Some contracts, such as the one used by Makhnevich, go even further, including a clause giving Makhnevich copyright to anything posted online about her.
Lee said he questioned the terms of the contract when he arrived in Makhnevich's office for treatment of a severe toothache and infection, but says he was in agony at the time, and signed it so that he could be treated. "It was a situation of duress," says Lee's lawyer, Paul Alan Levy. "It is outrageous that a patient would have to sign away his constitutionally protected right to get treatment for a toothache," he added.
Within hours of Lee's complaint being filed on behalf by the advocacy group Public Citizen, Medical Justice Services, Inc., the firm that designed the contract retired it and advised its clients to stop using it. Levy praised the decision, but says that Lee's lawsuit against Makhnevich will continue and the broader issues remain. Most online business review sites cite protections under the Federal Communications Decency Act and refuse to remove negative comments. In Lee's case, the dentist's copyright claim was deemed baseless because posting such comments is a classic example of fair use under federal statutes.
The clause in the contract that attempts to use patient privacy as a bargaining chip is also invalid, according to the Federal Office of Civil Rights, as privacy protections afforded by the Health Insurance Portability and Accountability Act, otherwise known as HIPAA, are legally binding. It remains to be seen whether Lee's case will lead to the elimination of such contracts, but it seems to at least be a step in the right direction.
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