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

[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.

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