Contracting Your Way to Better Online Reviews – Is the Proactive Approach Legal?

Much to the chagrin of my law firm, I often encourage people not to take legal action when they are defamed on an online review site.  The issue has become more prevalent as consumers (or is it possibly competitors or people with personal vendettas) spew their ire negatively rating doctors and other professionals who only have their good reputations to sell.  Some of these folks are now trying to be proactive about it.

Some Choices After the Fact

If the negative review is already there, litigation can be difficult because you often can’t sue the websites themselves because the Communications Decency Act gives the site immunity from contents posted by others.  You can sue the actual poster of the review, if you know who it is.  You can also embark on a “John Doe”  lawsuit and attempt to identify who the poster is.  That can easily surpass $5,000 in costs just to find out an IP address.  If the defamer is sophisticated, they can probably mask their identity no matter how much discovery you obtain.

Another option is to do your own campaign.  The common method is to push the negative results down on the search engine page by strategically placing more current content about yourself that search engines will place above the review site.  A more sophisticated approach includes customer surveys used to find any raving fans you may have.  You can then encourage them to go on to the specific site and counter the negative review with positive ones.  You have to be careful not to run afoul of the FTC online endorsement guides by giving the customer something of value not disclosed in exchange for the positive review.  And, many of the review sites are like search engines and will erase positive reviews if they are suddenly bombarded with ten on the same day or more than one from the same IP address.

For more on these approaches, you can read my Visibility Magazine column on how to address online defamation and several past posts about online defamation and anonymity.

The Proactive Approach

Now that doctors and other professionals (who presumably have money and care more about their professional goodwill) are targets, several companies have sprung up to act as reputation managers or defenders.  I have to confess I have no first or second hand knowledge of anyone who has used these services, but the likes of Medical Justice caught my attention because of the legality aspect.

They encourage doctors, for example, to include provisions in their agreements with patients (tucked into the HIPAA disclosure you sign off on, but never read) whereby the patient agrees to one or more of the following:  (1) not to post a negative review online unless first shared with the doctor so they can ensure there is no misunderstanding – and identify the poster; (2) not to post on any sites that allow it to be  done anonymously; (3) not to post anonymously; (4) to allow the doctor to request removal at the doctor’s discretion; and/or (5) the assignment of all copyright interests in any reviews done by the patient of the doctor.   This last one allows the doctor to have the negative review removed through a Digital Millenium Copyright Act take down notice.

For an agreement to be enforceable there has to be what lawyers call consideration.  In other words, what does the patient get out of the deal from agreeing to those terms?  Some could argue the medical services are sufficient.  Others suggest the patient is ensured additional privacy because doctors cannot discuss medical issues in responding to the reviews. 

Other than anecdotal evidence about the use of these provisions, I have not seen one of these challenged in a court of law.  I would not be surprised to see one soon.  They have been castigated, however, in the court of public opinion with criticism of Medical Justice and others.

UPDATED  7/25/2011

Looper Reed Board Certified Health Law Lawyer and author of TexasPhysicanLaw.com Darrell Armer recommends doctors contractually take some protection against the online review phenomena although not as far as some of the options above.  “Doctors are not allowed to publicly discuss the medical treatment of an identified patient without their permission.  This makes it difficult for doctors to respond to online review,” he said.  “We, therefore, recommend doctors include a provision in their privacy notice that grants the doctor permission to discuss the treatment should the patient post an online review.”