October 2014

Credentialing & Peer Review Legal Insider

Best practices for managing online criticism

An expert on defamation claims offers advice on how to best handle disparaging
comments online
With the proliferation of online review sites and
message boards, its become increasingly commonplace
for patients to post their thoughts about physicians for
the world to see. When a negative comment threatens
to damage a physicians reputation, its important to
choose the right course of action. Robert C. Clothier,
a partner specializing in defamation at Saul Ewing,
LLP, in Philadelphia, shares his advice for physicians
who see something negative written about them online.
Dont overreact
No one likes having bad things said about them
online, so its easy to react impulsively and emotionally without thinking carefully of what the end result is
going to be, says Clothier. However, that isnt the best
way to proceed.
You have to think very carefully if youre going to
make the problem go away or whether youre going to
make it worse by doing something about it, he says.
Clothier has seen clients who were upset about
online comments go after the posters with cease and
desist letters, threats of a lawsuit, or just requests to
stop posting about them. These types of responses can
sometimes prompt the poster to redouble his or her
efforts if he or she doesnt care about the legal risks of
being sued.
Every situation is different, Clothier says, but drawing attention to an online comment may make things
worse if the commenter acts irrationally.
Think before you sue
In cases where the physician knows who the poster
is, Clothier suggests some caution before rushing to
sue the poster for defamation. Such cases often end up
being largely about the plaintiff rather than the defendant. In other words, the lawsuit will be more about
the physician who is upset with what has been posted
online than about the person who posted it.
Physicians may not realize that the focus of defamation lawsuits is going to be on discovery about them,

about the truth of what was said, Clothier says. So if

a patient complains that a physician did a terrible job,
the focus of the case is going to be about the surgical
procedure he or she did, or the care provided.
Consider, too, that if a physician sues for damages
and claims that a posters disparaging comments
caused financial harm, all the physicians financial information will be directly at issue in the litigation, says
Clothier.
Damages are also difficult to prove. A physician
has to show that his or her reputation has suffered as
a result of what was posted. However, the physician
doesnt know whose opinion has been swayed by the
postings, which is required to show evidence of financial harm. The number of patients the physician saw
before and after the postings could be compared, but a
mere decline in clientele may not be enough to provide
evidence.
Clothier says the cost and time commitment of a
defamation suit should also be considered. A physician
may find a lawyer who will take the case on contingency, but the process may take years to yield any results.
Lastly, Clothier cautions that proceeding with a lawsuit often brings more publicity to an online comment
than the original statement itself would have garnered.
In many basic defamation lawsuits, the general public
would never have known what was posted about the
physician if not for the lawsuit generating all the attention. Plus, any person who reads about the lawsuit
still doesnt know if the posting in question is true and
might avoid doing business with the physcian.
If youre thinking about a defamation lawsuit, dont
react emotionally but think about it rationally, says
Clothier. Have you really, truly suffered some damage
that is long-lasting? Are you going to be able to show
that your practice dried up?
The answer to those questions depends on the kind
of physician and the type of care provided, he says.
Some physicians get their referrals straight from a
hospital, so a defamatory posting may not really have

2014 HCPro, a division of BLR. For permission to reproduce part or all of this newsletter for external distribution or use in educational packets, contact the Copyright Clearance Center at copyright.com or 978-750-8400.

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Credentialing & Peer Review Legal Insider

an impact. Others, such as plastic surgeons, depend on

word of mouth, so disparaging comments can cause
real harm.
Manage your online persona
Another way to combat negative postings is managing your online persona to minimize the harm caused
by negative comments, Clothier says. Online reputation management companies, such as Reputation.com,
offer tools to help manage your online presence. Search
engine optimization can also help move a negative criticism further down the list of Internet search results.
There are all sorts of positive ways to manage your
online persona. Create your own Facebook page or
your own website. All those things create other hits that
are more likely to come up when people search your
name, Clothier says.
Dealing with anonymous posters
In comparison with some of the scenarios previously mentioned, handling negative comments from
an anonymous poster has its own challenges, Clothier
says. A physicians first impulse may be to threaten to
sue the website where the anonymous comments are
posted. However, section 230 of the Communications
Decency Act states that a website operator has complete immunity under federal law from being sued for
defamatory or disparaging statements made by third
parties.
So instead of threatening to sue, Clothier suggests
physicians leverage the websites terms of service and
terms of use, which almost always prohibit false or
defamatory comments, to persuade the site operator
to take the post down. Some statements are not easily
proven true or false, but there are times when a statement is obviously false and the operator will remove
it. Also, if the manner in which the poster makes the
statement is completely inflammatory and against the
tone the website wants to maintain, the operator can be
persuaded to take it down, Clothier adds.
What if a physician wants to find out the name of
the anonymous poster? There are ways to do it, but its
difficult, Clothier says. First, the physician effectively
brings a lawsuit against a John or Jane Doe, since he
or she doesnt know the posters real name yet. Some
states, like Pennsylvania, allow just a writ of summons

HCPRO.COM

October 2014

to be filed, which doesnt include a complaint. Then the

physician has the ability to issue a subpoena to an Internet service provider or website operator who knows
the anonymous sources identity.

You have to think very carefully if

youre going to make the problem go
away or whether youre going to make it
worse by doing something about it.
Robert C. Clothier

However, courts have held that there is a First

Amendment right to anonymous speech, and because
of that, courts will require some justification on the
part of the plaintiff before ordering the website or
Internet service provider to turn over the identity of the
anonymous source, Clothier says. One way a physician
can provide this is to establish, to the courts satisfaction, that he or she has a viable defamation claim.
There are some statements that arent necessarily defamatorytheyre merely embarrassing, which
isnt enough, says Clothier. However, a statement
about ones competence is usually determined to be
defamatory.
To unmask the anonymous source, the court will
want the website to give some notice to the poster that
this information is being sought, he says. That will allow the poster to hire a lawyer and anonymously object
to the complaint and say its not a viable lawsuit (if the
poster cares to respond at all). Then the courts will
assess if the complaint is viable; if there is a real claim,
they can order the source to be produced by the website
operator or Internet service provider. Then the John
or Jane Doe on the lawsuit becomes the actual name of
the poster, and the physician can proceed.
That is a long road, its not cheap, and you might not
win it, so proceeding after anonymous posters is actually pretty hard, Clothier says.
There have been some interesting outcomes in
situations where a physician suspects the anonymous
poster is one of his or her own employees, according to
Clothier. In such an instance, the purpose of the lawsuit
isnt to win damages through a jury case; its to find out
who the disgruntled employee is and fire that person,
he says. H

2014 HCPro, a division of BLR. For permission to reproduce part or all of this newsletter for external distribution or use in educational packets, contact the Copyright Clearance Center at copyright.com or 978-750-8400.