It appears some California doctors are not at all pleased with a new doctor rating system launched by Blue Shield of California and have launched a class action lawsuit against the insurance company. Blue Shield notes that the rating system uses "nationally recognized measures of care," and the data itself comes from doctors groups, health plans and purchasers. Of course, the real question is whether or not a rating system like this can be against the law. After all, it's an opinion. In many ways, this lawsuit reminds me of lawsuits against Google from people who don't like their rankings. Such lawsuits have not gone far. Blue Shield has every right to express an opinion about a doctor, and in this case does so based on a variety of well-accepted measures. I can understand why doctors who don't perform well might not like it -- and I can also see potential problems if the data creates incentives for certain behavior that is less helpful for patients -- but that doesn't make expressing an opinion illegal. Hopefully the courts will recognize that, or we may get a very bad ruling on the books that says that giving an opinion is not allowed if some people don't like that opinion.
We've seen plenty of stories of review or ranking sites that get sued by people upset about their reviews, but one such site that seems to get extra special attention is Avvo -- and that's because it's a ranking and review site for lawyers. Soon after the site was launched a few years back, it was sued -- leading a judge to dismiss the suit, pointing out that rankings are opinions and opinions are protected by that old First Amendment thing. However, it appears another lawyer is suing the site, claiming libel among other things.
Avvo hit back in a blog post highlighting some history that the lawyer in question, Joe Davis, probably doesn't want to generate any more attention (such as being "twice convicted and spent eight days in the pokey") and suggesting that it's the desire to hide this info that is the real reason behind the lawsuit.
So, how does Davis try to get around the whole "opinion/free speech" thing? Well, he tries to find some factual errors in his profile -- such as the page claiming that he practices "100% employment/labor law," which is apparently not the case. That said, it's difficult to see how such an error amounts to libel. Also, apparently Avvo has the wrong address, which Davis suggests is a "misrepresentation." He also claims that Avvo's "failure to take into account" Davis' Board Certification (which is mentioned over and over and over and over again in the complaint as if that, alone, conquers all) is a "misrepresentation" as well.
From there, Davis suggests that various fluctuations he saw in his ratings over a period of a few days "obviously occurred based solely" on his "level of participation" on the site, rather than "what is in the public record." Davis also gets upset that his profile points people to other, competing lawyers, and claims that Google forbids a similar practice. Unfortunately, I believe Davis is simply wrong on this point:
Google's AdWords' policies prohibit AdWords users from doing the very same thing that Avvo.com does--that is, to hijack a competitor's name as a key search word to trigger the appearance of a competitor's ad next to the competitor's search results.
But Google actually does allow that and has fought an awful lot of lawsuits that it's usually won, saying that such a practice is perfectly legal. In fact, Google just recently changed its European policy to have it match the US policy in allowing greater use of trademarked terms in AdWords.
There's also a suggestion that by using Davis' photo from his own website, Avvo may have violated copyright and local Florida statutes on using images of lawyers. The full complaint is a bit rambling, and at times rather informal, which makes for some fun reading, but seems like the sort of thing that a judge might not appreciate:
Every so often we receive legal threats, almost always concerning claims of defamation. If it's content that we have written, we ask for clarification on specifically which statements are false and why, so that we can review them and fix them if they are, indeed, false. To date, no one who has threatened us has responded in any way to such a request. That is, none have actually provided us with the details of the false statement, or done anything like filing a lawsuit. It appears that Stephen Barrett, who runs the excellent site Quackwatch (which, as you'd suspect, tries to highlight medical practices that smack of quackery) has a similar policy on receiving defamation threats. Unfortunately, he's now been sued in response (thanks to JC for sending this story in).
Barrett has written a few times about a medical lab named Doctor's Data, that he feels is helping certain medical practitioners defraud patients through misleading results. Here's one example of such a report. You'll notice that it's pretty detailed in explaining why Barrett has problems with the use of these reports.
Doctor's Data, understandably, did not take too kindly to all of this and sent a cease & desist letter at the beginning of June. I have to say, I've seen an awful lot of cease-and-desist letters sent to websites accusing them of defamation, but there's something about this one that just... sounds off. I can't quite place it, but the letter seems a bit less formal than the typical C&D. It also doesn't cite any laws or legal precedent, which is common, but certainly not always present. That said, Barrett was quick to respond politely (even "thanking" the lawyer for the letter), despite the legal threat:
I take great pride in being accurate and carefully consider complaints about what I write. However, your letter does not identify a single statement by me that you believe is inaccurate or "fraudulent." The only thing you mention is my article about how the urine toxic metals test is used to defraud patients: (http://www.quackwatch.org/t). The article's title reflects my opinion, the basis of which the article explains in detail.
If you want me to consider modifying the article, please identify every sentence to which you object and explain why you believe it is not correct.
Rather than provide the details of what Doctor's Data felt was defamatory, another partner at the same law firm sent a shorter cease & desist, that again, has a somewhat less formal style than the usual C&D:
You have been making false statements about Doctor's Data and have damaged this company's business and reputation, and you have done so for personal gain and your own self-interest, disguised as performing a public service. ... Your writings and conduct are clearly designed to damage Doctor's Data. ... If you don't retract your false claims and issue a public apology, the lawsuit will be filed.
Barrett responded, pointing out that he'd asked for specific evidence and hadn't been provided any. Instead of actually highlighting what Doctor's Data felt was wrong, the firm then filed the lawsuit instead. The lawsuit runs the gamut of the standard claims in these sorts of lawsuits: restraint of trade; trademark dilution; business libel; tortious interference with existing and potential business relationships; fraud or intentional misrepresetation; and violating federal and state laws against deceptive trade practices. Unfortunately, it's not clear from the post where the lawsuit was filed, because it would probably help Barrett if it were filed in a state with an anti-SLAPP law. Thanks to an anonymous commenter for uploading the lawsuit, and pointing out that it was filed in Illinois, which does, in fact, have an anti-SLAPP law:
Of course, now that Doctor's Data has brought this lawsuit, it seems likely that the claims made by Barrett are about to get a lot more attention -- and it's entirely possible that Doctor's Data won't like what others find when they start looking into the claims.
This happens all too frequently. I recently wrote a short post about something that was apparently happening with YouTube and soon after received an angry email from a PR person at the company first scolding me for not contacting Google PR first and then demanding that I insert some PR babble paragraph that said nothing that addressed the key questions raised in the post in "response." This made no sense to me. If I got something factually wrong, I have no problem having someone point out what was in error, but demanding that I first contact them and then include a meaningless statement is ridiculous. If the PR folks have something to say, they're free to take it up in our comments.
It seems that Michael Arrington, over at TechCrunch, has run into something similar (and I'm sure it happens to him all the time as well). After briefly (really, in passing) mentioning the infamous Video Professor in his post on marketing scams, the company first tried to get him to post their response, and when he told them no (in less friendly words), the company instead complained to the Washington Post, who syndicated the same TechCrunch post (as it has done for a while with TechCrunch posts). The real issue, of course, is that The Video Professor didn't like getting called out on its marketing practices. The company is notoriously sensitive over its reputation and has gone legal on people multiple times in the past. At issue is the fact that people are told they're getting a "free" product, but don't realize they're really signing up to pay a lot of money if they don't follow the fine print carefully. Arrington called this a "scam" and plenty of folks agree. The Video Professor did not agree, but if that's the case, it has every right to clarify its own marketing material, rather than going after those who call them out on their less-than-clear practices.
But the bigger issue with these types of situations is that companies need to realize that just because someone doesn't like the way you're acting and states an opinion, on that subject, it doesn't mean that they first need to contact you or get a meaningless PR quote from you. You have a right to respond, but on your own website -- or within open comments if they're available (as they are on this site). For too long, companies have hid behind bland PR statements and the willingness of the press to "balance" stories with an accusation and a denial, but no real effort to get to the bottom of things. That's changing, and it's time that companies and their PR reps caught up to what's happening.
Don't get me wrong. I am also an outraged narcissist, but I had to work six-hour shifts in Bakersfield, Calif., to earn my stripes as a communicator. Nowadays, having a Twitter page qualifies a person to give commentary on CNN. I am not interested in the take of @stinky on the Fort Hood shootings or any other current events. I am watching CNN because I expect them to gather the news, not act as a clearinghouse for any bonehead with a computer, a cable modem and a half-baked opinion.
Ah yes, so because today it's easier for people to have a voice, it's bad. Yes, and you used to walk to school uphill both ways in the snow and television was called radio and had no pictures. But the world improves and progress comes along and gives more people a voice and that's bad how exactly?
With the advent of Twitter, Facebook, instant messaging and texting, now almost any fool can set up his or her broadcast hub. Then the likes of CNN, Fox News, Oprah and even the Tribune play right into their hands, giving them instant access to the rest of the world. I beseech the online editors at this paper to turn off the "comments" after each article. If people have opinions about something that they've just read, let them write a letter to the editor.
Yes, but "any fool" doesn't get quite the attention as, say, a fool who blasts the fact that people have a voice in a major national newspaper, right? Who cares that anyone can say what they want. Most people don't see those complaints. You call it a "broadcast hub" but most people's Twitter accounts don't have very many followers. That's not the issue at all. The actual complaint seems to be that CNN and Fox and others have elevated a few of these folks (a tiny percentage of the overall population using these tools), and you don't like it because.... what, exactly? Because they compete with you in being a public "fool"?
Most of my career has been spent in radio, where call-in comments are somewhat encouraged. The main difference is that we can hang up on people.
Ok, let me get this straight. Before you were complaining that CNN and Fox were putting these people on their shows, but then you say at least on radio you could "hang up on people." Do you not sense the contradiction? CNN and Fox can just as easily "hang up" on these people too. So what's the difference?
Basically, it sounds like the guy is pissed off that he's no longer the only person with an opinion getting heard. But, of course, he's missing the point in blaming the new technology. Yes, lots of people have a voice, but most still don't get heard very far. The folks who are getting on TV or are making their voices heard are because they're saying something that resonates, whether it's stupid or not. And, no, maybe they didn't have to practice being a public moron in some small town first, but is that really a necessity?
There was a big kerfuffle in the journalism world over the weekend, as it was revealed late Friday that the Washington Post had rushed out new "social media guidelines" leading one editor to delete his Twitter account, and another to joke that under the new guidelines, his Twitter account would only discuss "the weather and dessert recipes." This isn't the first time news organizations have generated attention for coming up with restrictive social media guidelines. And, of course, one of the more ridiculous aspects of all of this was that the Washington Post didn't reveal what those guidelines are, leading to a ton of speculation and leaving it to a competing news organization to publish the actual guidelines. A big part of the problem here was the lack of transparency from the Washington Post in the first place...
While we're on the subject, the whole thing seems based on this platonic ideal of journalism that involves the objective, unbiased reporter. The guidelines basically tell reporters and editors that they shouldn't say anything that suggests they actually have an opinion on something, and the editor who deleted his Twitterstream did so because it expressed an opinion on certain news events. But, it's time we got over this. Just because people pretend to be objective, it doesn't make them objective. Just because reporters claim to be unbiased, it doesn't make them unbiased.
Yes, it's great to strive to be as fair and impartial as possible. It's important to present as much as is reasonable as possible. But the bias is there. Pretending it isn't is ridiculous -- and, at times, damaging. It's what leads reporters to go overboard in trying to "present both sides of the story" even if one side is completely ridiculous. Reporters have too much trouble saying "wait, that's wrong." They just present what was said and move on, without ever digging into the truth. In the quest for impartiality, they've actually gotten away from providing accuracy and honesty. I'd much rather have reporters clearly state their bias and opinion, and then let others argue the points out.
And, of course, reporters and editors have always had opinions. It's why they have an editorial page, after all. But, even more important, it's bias and opinion that goes into determining what story makes the front page, or the middle page or gets spiked. It's about how the "facts" of the story are presented. There's bias everywhere. Asking reporters to bite their tongue and not actually say what they think doesn't negate the bias, and it doesn't help readers/viewers/listeners get any closer to what's real. It's just a way of avoiding responsibility, avoiding the community, and avoiding doing a good job. In the meantime, as newer publications (mostly online) do away with the ridiculous idea that a party can be fully impartial, the community of people who consume and share and spread and make and comment on the news are going there. Because that's where "the news" is best presented.
There's an interesting article by NPR's ombudsman, noting that Planet Money's Adam Davidson apparently went way over the line in a recent interview with Elizabeth Warren, who's in charge of watching over the TARP program to make sure it's not abused. Apparently a ton of people complained. Davidson apologized and NPR says that what he did was wrong and that: "It's important for journalists to treat whomever they are interviewing with respect -- and to keep their opinions to themselves. Davidson did neither."
The thing is... when I heard the original broadcast that caused the problems... I actually really liked it. Davidson is a smart and knowledgeable guy who's spent an awful lot of time digging into issues around the economic crisis to get to the bottom of them, and he had a reasonable point that he was trying to make, based on all of that knowledge -- and he challenged Warren on it. The reason I liked it was that it was a reporter actually challenging someone on something, rather than simply letting it stand. This is something that has been missing from reporting in many cases. It's what Jay Rosen has referred to as "he said/she said" reporting -- where a reporter asks questions to elicit a story from multiple parties, but never tries to ascertain if either story is true -- but just presents what the various people say. Davidson wasn't doing that. He was actually claiming that it seemed like Warren was trying to stretch the purpose of her job to do something that didn't necessarily fit in the role. And it was great to see a reporter actually say to someone "that's not true" because it felt like someone was finally getting challenged (no matter whether you feel Warren is in the right or not).
It was quite clear what Davidson's position was -- he laid it out -- and he challenged Warren, and it made for an interesting discussion. The whole idea that reporters must "keep their opinions to themselves" doesn't seem to make much sense. If someone is talking to a reporter and saying stuff that the reporter believes is wrong, don't they owe their audience the courtesy of digging deeper? I was impressed by Davidson, and am actually a bit disappointed that he backed down so quickly. It actually makes me wonder how much Planet Money will push back on people who state stuff that the Planet Money team feels is wrong in the future.
Reader VivekM alerts us to an unfortunate news story in India, where a blogger who was critical of a journalist's coverage of the terrorist attacks in Mumbai last year was sued for his blog post, and then forced to take down the post and apologize. The specific issue appeared to be over a quote taken from a Wikipedia article about the journalist, rather than any actual personal attack on the journalist. Of course, in forcing the blogger to take down the content, it's kicked up quite a lot of attention and a fire storm of protest from numerous Indian bloggers who feel that this is an attack on free speech. Defamation laws are all too often used to stifle free speech, and it doesn't look like India has any sort of anti-SLAPP law to prevent these sorts of legal attacks. There's nothing wrong with being offended or bothered about criticism, but there are plenty of ways to respond to criticism without resorting to lawsuits.
There have been plenty of stories about companies suing people for posting negative reviews about their business practices, and it still seems like a really dumb thing to do -- as in the end all it does is call a lot more attention to the negative review. That's what appears to be happening with a lawsuit over a negative review of a chiropractor on Yelp. The review claimed that the chiropractor was using questionable business and billing practices. The chiropractor threatened the reviewer -- and even though the review was deleted, sued the guy for defamation. Of course, now the details of the supposed unethical billing practices (involved trying to bill insurance companies significantly more, and when that didn't work coming back to the guy and asking him to pay up instead) are getting a lot more attention.
