Hospital Wants Critical Blogger's Anonymity Ended

rs232 sent in a link to this story about one's right to privacy, which opens: "An unlikely Internet frontier is Paris, Texas, population 26,490, where a defamation lawsuit filed by the local hospital against a critical anonymous blogger is testing the bounds of Internet privacy, First Amendment freedom of speech and whistle-blower rights."

Comments

Oh this could be fun

[Durrok]

"Hello slashdot, please provide me the name of this "anonymous coward" who posted about my mother's sex life and his role in it. I feel as if I've been defamed. What's that now? I can't hear you over all that laughter. Well you will be hearing from my lawyer!"

Re:Oh this could be fun

[deniable]

Sorry, your lawyers busy, but your mother says hello.

Re:Oh this could be fun

[deniable]

But Dude, it's a deniable account.

Will Peaches remember you fondly? Were you one of his favorites?

Libel

[FST]

If he's spewing false information, then libel is libel. He can and should be punished. Just because he's on the intarwebz doesn't mean he has immunity.

On the other hand, if he's telling the truth, the hospital has no case.

I don't see what the big deal is.

Re:Libel

[metlin]

Ahh, but how are they going to prove that it is the truth (or that it is libel)?

I mean, he might be an insider who may know some things that an outsider may not - things that may be true but may come across as libel.

I think that is the dilemma.

Re:Libel

[Rich0]

The issue is that many plaintiffs file a John Doe lawsuit against somebody, get their identity, and then drop the lawsuit and pursue other means of retribution.

For example, a company suspects that a bloger saying bad but true things about the company is an employee. They know that they can't legally do anything about it - a trial will uncover the facts and show that the statements are true and thus not libel. However, they file a suit anyway to find out who the employee is. Then they drop the suit (since they'd lose it anyway). At this point that employee starts having performance problems, gets lousy assignments, and generally suffers until they quit - but of course nothing is attributed to the blog and nothing is done that would give the employee grounds to sue. Other employees of course get the message and learn not to post bad things about the company on the blog, which is what the company set out to accomplish in the first place.

That's the problem with these sorts of lawsuits - they aren't about using the courts to obtain justice - they're about using the courts as a tool to remove the shield of anonymity used by weak people confronting strong ones who are doing something wrong.

If the hospital were genuinely concerned about patient privacy they should go to the Feds and point out the issue and let them deal with it. The federal government would perform an investigation while protecting anonymity, and they'd be genuinely looking out for patients without an agenda of covering up hospital mistakes.

Hospital Blogging

[BoldAC]

That was one of the reasons that I would previously let doctors post anonymously on carotids.com. Medical systems are huge, reputation-based systems. If a hospital doesn't have a good community name, people will take their personal business elsewhere. So hospitals will sue and sue to protect their reps.

Carotids has not thrived even with anonymous postings because docs are still scared. I still get frequent contacts with people considering posting... however, most never pull the trigger.

Sad.

wellll accttualllyyy

[Valar]

From reading the FA, it seems like a big part of the hospital's lawsuit is that the blog has been disclosing patient information. In some cases, enough patient information that the patient could be personally identified from the posting. So yes, part of it is your standard 'they are saying bad things about me and I don't like it and I want to know who it is!', but I think part of it is perfectly reasonable-- stop writing about the patients without their consent.

HIPAA Violation!

[iknownuttin]

FTFA: Fox said Essent's biggest concern is that the blogger has said some hospital employees have given him patient records. Even though they have not been posted on the blog, Fox said this represents a violation of federal law and the company needs to find the employees who are doing it.

IF that is true, then there absolutely needs to be an investigation. I'm all for allowing folks to honestly criticize care and use medical documentation that was authorized by the patient, but getting it without patient authorization?! I would have a problem with the employees that gave it to him. If the blogger is on to something, then he should approach the patients involved and ask them for the information. In this day of litigation, I'm sure most patients would jump on board for the chance of suing for $$$.

I could see it now...

[Ralph Spoilsport]

Yes, your honour we have the information you wanted. It's right here, just as they typed it in to our "set up your blog" javascript form:

First Name: George
Middle Initial: L
Last Name: Tirebiter
Name of Blog: LawyersHospital
URL for blog: lawyershospital.blogspot.com
Your email address: napalmoliveXXX@yahoo.com
City: West Gommorah
State: TX

Now, your honour, we also have the IP address, but it was dynamically allocated to an internet cafe in Austin Texas. We asked yahoo for info, and the info came back for the email address:

napalmoliveXXX
First Name: George
Last Name: Tirebiter
Sex: M
Birth date: March 15, 1984
Mother's Maiden Name: Betty Jo Bealovsky"
Secret Question: Why does the porridge bird lay his eggs in the air?
Answer: Crocagator pair, alligator pair - that's they so mean!!!

And the IP address was too a different internet cafe, this one in Dallas."

So, how much do you know about him? NOTHING!!!!

You'd think someone at the hospital would know this is a fools errand...

RS

For those who aren't Fireheads: George Leroy Tirebiter and Betty Jo Bealovsky are a characters from the LP (now CD)How can you be in two places at once, when you're not anywhere at all" by the Firesign Theatre and the terms "Napalmolive" and "Lawyer's Hospital" are also inventions by the FT. As is my name, Ralph Spoilsport, and my tag line, "Shoes for Industry, Shoes for the Dead".

Medical Records?

[Anonymous Coward]

"Fox said Essent's biggest concern is that the blogger has said some hospital employees have given him patient records. Even though they have not been posted on the blog, Fox said this represents a violation of federal law and the company needs to find the employees who are doing it."

If he hasn't posted them on the blog, how are they so certain he's been given patient records?

This sounds to me like maybe some of the employees told him something, probably *without* giving him access to the patient records, and possibly without any specifics (e.g., "we had a patient where x happened, and that was messed up"), and the company is crying 'he's been given medical records!' to make it seem like they have a better reason to get the employee names than they actually do.

The hospital should be investigated then.

[Spy der Mann]

If the blogger's accusations turn out to be false, the blogger's credibility will fall down like those wacky conspiracy theorists. Case closed. And if they turn to be true, cool, one point for justice.

But certainly I don't think the blogger should be arrested for libel unless he gives his name and accuses the hospital. See, he's anonymous and his credibility is null. Big deal.

I mean, it's like the rumour about a Coca Cola bottle with a rat inside. Nobody can verify it, and it's just hearsay. Or what about the people who say there are UFOs in Area 51? Are they going to get sued for libel, too?

Around 10 years ago, where a famous news agency reported on the Chupacabra according to some information they found "in the internet!" (lol). Gee, the internet became the Brittanica all of a sudden ;-)

If people start believing every freaking thing they see on the internet, then the problem isn't the blogger, or the hospital. It's the bunch of idiots behind the monitors of their compies. Why should people believe an ANONYMOUS blogger? Or everyone's guilty until proven innocent now?

It's the authorities' duty, not ours, to judge the hospital.

All true but so what

[goombah99]

All you say is true but so what. Why should people who criticize have an expectation of anonymity or escape libel charges? Were assured free speech by our constitution but that is emphatically not an assurance of anonymous speech. We (in the US) are free to associate with whom we please and exclude reporters. But if we do say something publicly it becomes public.

The fact that someone might fear retribution does not hold. People are obligated to testify in trials even though they might fear retribution. They don't testify anonymously. We do recognize extreme circumstances and conditions liable for abuse. That's why there's such things as the whistleblower protections laws and witness protection programs. But those are not for everyone.

Re:All true but so what

[Rich0]

Whistleblowers serve the public interest. They should be encouraged to speak up and shielded in any way which is just.

If somebody says something libelous (anonymous or otherwise) I'm fine with the courts having power to punish them. However, people should be subject to the courts and not the other way around - the courts don't exist simply to help you silence your critics.

Judges should be able to evaluate the merits and facts of a case, and choose to not grant discovery of an identity in cases where there are not sufficient grounds to win a lawsuit. It wouldn't be hard to do - if a blog is libelous then the company should be able to show that it is factually incorrect and caused harm. Neither of these require disclosure of the blogers identity.

Re:All true but so what

[cpt kangarooski]

Were assured free speech by our constitution but that is emphatically not an assurance of anonymous speech.

It's funny you say that. Mere anonymous speech is, in fact, protected. If there is something more to it, e.g. libel, then the anonymity might be lost, but otherwise it is as protected by the First Amendment as any other speech.

Here is what the Supreme Court had to say on the subject in Talley v. California, 362 US 60 (1960) (internal citations omitted):

Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all. The obnoxious press licensing law of England, which was also enforced on the Colonies was due in part to the knowledge that exposure of the names of printers, writers and distributors would lessen the circulation of literature critical of the government. The old seditious libel cases in England show the lengths to which government had to go to find out who was responsible for books that were obnoxious to the rulers. John Lilburne was whipped, pilloried and fined for refusing to answer questions designed to get evidence to convict him or someone else for the secret distribution of books in England. Two Puritan Ministers, John Penry and John Udal, were sentenced to death on charges that they were responsible for writing, printing or publishing books. Before the Revolutionary War colonial patriots frequently had to conceal their authorship or distribution of literature that easily could have brought down on them prosecutions by English-controlled courts. Along about that time the Letters of Junius were written and the identity of their author is unknown to this day. Even the Federalist Papers, written in favor of the adoption of our Constitution, were published under fictitious names. It is plain that anonymity has sometimes been assumed for the most constructive purposes.

We have recently had occasion to hold in two cases that there are times and circumstances when States may not compel members of groups engaged in the dissemination of ideas to be publicly identified. The reason for those holdings was that identification and fear of reprisal might deter perfectly peaceful discussions of public matters of importance. This broad Los Angeles ordinance is subject to the same infirmity.

Again, sometimes it is necessary to pierce anonymity. But not all the time.

Link to court documents and blog

[Dr_Art]

Here's a better link that includes links to the actual court documents: http://www.citmedialaw.org/texas-judge-orders-discovery-anonymous-bloggers-identity

The blog is here: http://the-paris-site.blogspot.com/

I don't see how the blogger is liable for anything HIPAA related. The complaint references criminal law and Essent's own responsibility to keep patients' information private, nothing relevant to a blogger or the independent actions of Essent's employees. E.g., Essent could fire the employees under the confidentiality agreement, but they reference no matter of law that says the employees are otherwise liable. There may be some other documents or law not mentioned by the complaint, but I don't see how the blogger is a party to such matters, especially since he/she likely never signed the employees' confidentiality agreements. Also, I don't see how Essent has standing to prosecute federal HIPAA violation in state civil court.

I don't know why the blogger and the other Does are joined in a lawsuit as well. Any HIPAA violation between Essent and employees would be a distinct event from the publishing of any such information on the blog. As in the RIAA lawsuits, it seems this would be a valid way to appeal the imminent order from the judge. (Although remember this is state district court and the RIAA lawsuits are federal district court.) Also note that the blogger's lawyer has come forward (see lawyer's Aug letter, although the judge's Sept order says he has not), so the case can continue on it's merits without the need to disclose the blogger's identity.

I also don't see any specific allegations of defamation. Defamation is hard to prove, and I don't see anything in the complaint that couldn't be interpreted as opinion by a reasonable person, or is simply disclosing internal happenings in the hospital, which would be known to a lot of the hospital's employees and patients. If a hospital employee relates false information on the blog or to the blogger, then that employee would be the defamer, and not the blogger. E.g., who would reasonably assume that an anonymous blogger would be an authority on the inner workings of Essent, and use that one blogger's opinion to judge Essent? Of course, it's possible the blogger is an employee. It's also possible that the blogger and all other Does are patients.

Finally, I was amused by a couple of things in the complaint. First, to see an employer refer to the employees' "breaches of the employees' duty of loyalty". What?!? Employers and employees have a legal obligation of loyalty? I sure haven't seen many employers show loyalty to their employees, but then that's another thread... Second, the complaint says the blog is publicly available (that's how the hospital's business would supposedly be harmed), and that "...the blog has as it's sole purpose to conduct a one-sided attack and disparagement of the Hospital, PRMC, and their employees and doctors, and is in no manner intended to be an open and fair discussion of issues." OK, so that's why you filed a lawsuit instead of posting to the publicly available blog your open and fair rebuttal of the issues raised?!?!

I don't know the blogger, the other Does, or Essent, and IANAL, so I can only hope the truth of this matter comes out in court.

Regards,
Art