(hopefully, I have removed all identifying portions) On the face of it, what do you guys think? I don't want to taint the pool by making my own opinions known (even though I have already replied to this email), just want some from the legal/ethical aspects from you guys.
FIRST: I AM NOT A LAWYER. Second, IMHO unless you have a strict terms and conditions on your site, which a user must agree to before posting any reviews, you are libel if you cannot prove what was stated as being fact. Third, now that I've hopefully scared you, you might want to see a lawyer. For a hundred bucks he should be able to advise you about this case, and preventing such actions in the future. Fourth, don't reply. This way they don't get a response and gives you time to seek advice, before establishing your position. Also, if they don't push the issue, they might have just given up. Fifth, did I mention see a lawyer? hth, tom Reading Material: http://www.pbs.org/newshour/forum/september97/intlaw03.html http://www.phillipsnizer.com/library/topics/defamation_cda.cfm (Marianne Bihari and Bihari Interiors, Inc. v. Craig Ross and Yolanda Truglio case)
Can you give a little more general information about the posting in question? How was it made, on a forum you run? If so, do did the post break any posted TOS and is it a moderated site? What is the doctor asking you to do?
The acceptable use policy insists that they have 1) seen the doctor and that 2) the review is truthful. I have actually talked to the EFF, and they advised me that generally, the owners of sites are not liable for the content of users. If it is illegal, they must remove it, but in it's like if one of Shawn's users said something defamatory about someone else in the forum, he should not be able to be sued for it. In one of the cases you sent : I have no reason to suspect the statement is false. I have one person saying it is, and one person (who has much to gain) saying it isn't. But it seems to swing either way. I will consult a lawyer as soon as possible. =) But I already replied... oops. =)
It's on www.nddb.net, allows users to add, rate, review their doctor. The TOS requires that the person have seen the doctor, and post a truthful review to the best of their recollection. The review basically just said the doctor in question performed a procedure, they ended up with pain and some side effects that he ignored and discounted. (in essence). The reviews are clearly labeled as the opinion of the user. He is asking me to remove the review. He is claiming it is false, I could post my reply to his message.
I can tell from experience, and I have been on both sides and been successful every time, if the doctor proceeds, it will be a case of Libel per se with the potential of a large award. It's true that you, as a publisher can have protection, but that won't stop a doctor if he wants to sue you- if not for damages, but to discover the identity of the person who made it. You can file a motion to quash, but it isn't something you can do yourself and is going to cost you thousands of dollars. You also aren't going to be able to recover your legal fees regardless of who wins. You can either remove it or tell the doctor you will comply with a court order (which companies like eBay do). If you aren't going to remove the post, I would suggest you not have any more contact with this person and should probably consult an attorney immediately. I would not count of EFF to provide much free help - as they take very few pro bono cases. The best "business" decision would be to take down the post and not get caught in the middle of a very costly legal fight. In the end, you will probably be forced to turn over the IP information of the poster who made the post. If you want to fight it on principle and don't care about spending tens of thousands of dollars to make a point, then I also understand - because I've been there.
The problem to me is... if I remove every bad post, then what is the point of the site? I should just take it down now, because it is pointless if every bad doctor can just threaten me, I fold, and it's removed. It becomes nothing but a cheering section. (I had contacted the EFF before I even put the site up like 8 mos ago, what they give is not official "legal" advice tho, just general info.) But, I have a few more, less vague questions now that you guys have provided me with some info : If he gets a court order for the IP, I'd give it to him. (I don't think it would do much good, dynamic IP) Or a court order for me to remove it, I would remove it. At what point in those two scenarios do I risk being sued for some damages? How can one ever prove the statement is false? (As in understand it, a libelous statement must be false.) And what if it could be proven true, i.e. a complaint filed with the state medical board?
P.S. I did not tell him I would not remove it, I basically told him I did not like his tone, or his abusive accusations, and if he wanted to discuss this reasonably, send me a reasonable email, instead of accusing me of extortion and threatening me. I also told him, if he had an attorney, have him contact me, and we'll work it out that way. ----- What about a compromise, I remove the words, and leave the numerical review? =]
I know I'm posting too much, but how about, I take down the review, and put his threatening email in it's stead, minus the comment, saying "this is why this review has been removed." Or something to the effect that until the review can be proven, or their is evidence to support it, it will be gone.
A dynamic IP is assigned when the user signs on and a log is kept to show who was using it at one time. There are ways to try and mask this, but a dynamic IP in itself is easy to track. The point isn't really if the post is true or not, your position is that you are not responsible. You can't really take the position that it is true because you have no way of knowing. I've spent a lot of money "winning" and I only recovered a fraction of the expense (not legal fees, but damages that offset a minor portion of the total legal cost). Saying a doctor caused you to have pain isn't really an opinion, its a statement of fact. Damages are an automatic (if the case is won) when it comes to a doctors practice. What if the doctor wants to sue you for doing harm to his business? He can drag you into court and even if you have a 99% chance of winning, you are out legal costs. Leaving a rating of the doctor sounds much more like an opinion that making a statement that they did something wrong which caused pain. If you don't fight a subpoena to produce the posters information, you certainly avoid those legal costs. Some people are real nuts so you can't be for sure that this person won't sue you even if you immediately take down the post. I had some nut sue my company because she took off a ring when she was washing her car, forgot about it, and damaged it when she drove over it. Another sued because they hadn't been told a purse with a lifetime guarantee wasn't covered if it was stolen. Some larger online companies have a policy where they send an email to the poster and inform them that they intend to turn over their IP information in XX days and are letting them know in the event THEY want to pay for a motion to quash. That way it doesn't cost you anything.
I think you would either scare people from posting, or encourage other doctors to do the same. I would just take it down and make it as small of an event as possible. I wouldn't post the doctors email unless you have his permission.
Ok, how about leaving the numerical rating? I see what you're saying about influencing others to do the same, damn. Because, to me, the email is almost as negative as the review, but I can understand, he's pissed, rightly or wrongly, i don't know. I would feel better if I could post the reason why the review is gone, because it just undermines and taints the whole site for me if I have to edit reviews, it's quite distasteful to me. Do you think consumer review sites that review cars and stereos have companies suing them for defamation?
I don't know about stereos, but Consumer Reports has had some really large lawsuits filed against them for their reports, including cars. Some suits have been going on for years. People sue for everything. Europe has a much better court system than the US. It's basically loser pays. In the US, you can win the case, but lose financially. Some guy is suing the US for crashing that probe into a comet a week or so ago. Go figure.
hehe, I heard about the probe. Ridiculous. Ok, this is what I got so far, a friend had this idea. Remove all comments, and put stock replies in their place. Can I do this? Remove the free entry of text, which will undoubtedly always lead to this nonsense. Can I also post an explanation of why the site is changing? (i.e. email from this guy) Should I remove the comment NOW, or is it not something that needs to be immediate?
If you are making a permanent change, I think an explanation would be good. I think you can give any reason you want as long as you don't mention the good doctor by name. As far as the timing on removing the comment, it's up to you. I guess an attorney would advise the sooner the better. Newspapers are supposed to print a retraction within 48hrs in order to avoid acting with malice. I am all for reasonable free speach, so I would probably make the guy sweat - and that probably isn't the best advice. I think the rating system will avoid most future problems. Good luck.
thank you very much for your help, I really appreciate it!! You have been a huge help. =) Both of you.
You Americans are crazy with your legal actions... We have a billion of those websites up here and I cannot remember anyone getting sued... To me, it sounds like Dr.Pain is hurt by the truth.
NewComputer, Heh, I tend to agree. Mjewel, If it's not too personal or something, what cases did you have to fight? Free Speech type stuff? Just curious now... heh.
Yes, about a half-dozen related to free speech- on both sides. I was running a med-size public company and we had a individual who was making a lot of false claims about the company. This person was a nut (claim to be a CIA operative) and was fabricating wild stories that involved stealing their money. The truth was that they had been passing stolen checks at various retail locations and one of the company employees had picked them out of a police lineup. They claimed someone has made a latex mold of their fingers as their prints which were on the stolen checks (ha ha). While I would normally just ignore postings like this, this person went way over the line and we felt they were making serious enough charges that could potentially be damaging to the company reputation (possibly share price) as the material was being posted on very large internet sites visited by millions of people. The internet sites wouldn't remove the comments without a court order because it subjects them to liability when they start removing some content, and not others. Without editing the content, they claim they are just a provider (similar to what you would claim). It was one of the first successful cases against an annoymous poster on the internet. We never pursued them financially, but needed to sue them in order to have the content taken down. Proving the claims were false was easy, the hard part was proving they made the comments from a particular computer- a home computer. On the other side, I've been involved in defending the right to make truthful statements. Two of the cases wound up having criminal charges being brought against the parties who didn't want their illegal doings exposed. They tried to using the civil courts in an attempt to silence people. Free Speech isn't free when it comes to costly legal fees.