Have you ever used the internet to find a doctor in your area? If you have, chances are you’ve also looked at reviews provided by sites such as Google, Yelp, and healthgrades.com. Most reviewers are responsible and provide accurate information. However, what is stopping someone from providing defamatory information about a particular doctor? The unfortunate answer might be nothing.
In 1996, the United States Congress passed the Communications Decency Act (“CDA”). The CDA provides that “No provider or user of an interactive computer service (“ISC”) shall be treated as the publisher or speaker of any information provided by another information content provider.” Further, “No cause of action may be brought and no liability may be imposed under any state or local law that is inconsistent with this section.” For purposes of the CDA, an ICS is “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server.” Many courts have held that the CDA grants ISC’s, including blogs, forums, and listservs, immunity from tort liability from the information provided by a third party.
The CDA has been broadly applied to bar defamation-based claims. In a typical case, the defamed sues both the content creator and the ICS that provided the forum. Courts have held with virtual unanimity that such claims against an ISC are barred by the CDA. Immunity under the CDA extends to claims such as invasion of privacy, misappropriation, and even a case brought against a website for failing to implement age verification procedures.
The CDA does not immunize the actual creator of the content. However, determining who created the defamatory content may be difficult, if not impossible. There is no verification procedure to determine if the creator’s name and review are accurate.
Generally, an ICS will not remove defamatory content contained on their website without some verification that the information is false. The defamed must first identify the creator. Thereafter, the defamed has to file a successful lawsuit against the creator. Making the situation more difficult is the fact that, in Ohio, the statute of limitations for defamation is one year. That means the defamed must bring a lawsuit within one year of when the defamatory material was first published, not when the defamed first learned of it.
Doctors would be wise to monitor material provided via internet reviews to determine whether the information being provided is accurate. Periodic checking of these websites enables doctors to address any defamatory claims or pursue legal action against the creator.
NOTE: This general summary of the law should not be used to solve individual problems since slight changes in the fact situation may require a material variance in the applicable legal advice.