So there’s this outfit called “Medical Justice.” They purport to help doctors and dentists stave off malpractice lawsuits and reputational damage.
One of the products Medical Justice used to offer was something called a “Consent and Mutual Agreement to Maintain Privacy.” It was a nasty bit of work, really: slipped into the pile of papers patients signed on intake, the early versions of the form basically said that the doctor agreed to honor the privacy obligations of HIPAA if the patient agreed to not write any negative reviews of the doctor.
It didn’t take too long for Medical Justice to realize that this agreement might have a few flaws. As the Department of Health & Human Services noted in slapping a doctor for using the Medical Justice form,
A covered entity’s obligation to comply with all requirements of the [HIPAA] Privacy Rule cannot be conditioned on the patient’s silence.
So Medical Justice changed the form. Instead of this quid pro quo of “don’t write bad stuff about us online and we won’t give your private medical records out,” the new agreement took an even more devious tack: it assigned copyright, prospectively, from the patient to the doctor for any reviews that the patient might write in the future. This would allow the doctor to use the notice-and-takedown provisions of the Digital Millennium Copyright Act to have such content removed from review websites.
How would that make a difference? You see, ordinarily, a review website isn’t going to pay much attention to your typical cease-and-desist-you’re-defaming-me demand letters. Reviews are user-generated-content, and review sites have solid immunity from defamation liability for such content, thanks to CDA 230. But claims based on copyright aren’t subject to that statute’s sweet protection. As a result, many sites will automatically take content down in response to DMCA takedown notices in order to take advantage of the DMCA “safe harbor” from liability that such a takedown affords.
I would have loved to have tested that out if I’d gotten such a takedown demand; as you might gather, I find these attempts to silence patients completely vile. But before Medical Justice could get these agreements into the hands of too many doctors, they stopped, grudgingly recanting their efforts (the Doctored Reviews undertaking can probably take some credit for that).
However, it was too late for at least one dentist.
Stacy Makhnevich used this form, and when a patient submitted a negative review on Yelp, she invoiced him $100/day for as long as the review was up. The story is amusing – Makhnevich got her desserts in spades – but the news here is what happened in the class action lawsuit that was filed against her: a federal district court judge entered a default judgment against her, finding that:
- Even if copyright was assigned by the agreement, any use in a review would be protected by fair use;
- Obtaining the agreement was a breach of the dentist’s fiduciary duty and a violation of dental ethics;
- The agreement constitutes “copyright misuse;”
- The agreement is unconscionable; and
- The agreement is a deceptive act in violation of New York General Business Law section 349(a).
The court basically eviscerated the idea that these sorts of agreements are remotely acceptable. That’s a good thing; hopefully more professionals will get the idea that the best way to maintain a good reputation is to do good work, be responsive to patient/client concerns . . . and not try to muzzle your customers and abuse the legal system at the same time.