Last week we reported on the story of Dr. Ken Cirka, a Philadelphia dentist who required his patients to sign a "mutual privacy agreement" as a condition of getting medical care. We wrote that we couldn't find any examples of this type of agreement being used to censor online reviews. Indeed, Dr. Cirka specifically denied having used his copyright assignment policy to remove patient reviews.
After we ran our original story, Yelp informed us that Dr. Cirka had used the threat of a copyright infringement lawsuit to force the removal of a negative Yelp review. Confronted with the apparent contradiction between his words and his actions, Dr. Cirka seemed to have a change of heart. He now says he has stopped asking patients to sign "mutual privacy agreements," and won't renew his Medical Justice membership.
That's a happy ending for Dr. Cirka's patients, but the story has broader implications for the online review industry. These agreements turn out not to be as toothless in practice as they are in theory. Apparently, the mere threat of a lawsuit—even a legally frivolous one—is enough to force patients to take down negative reviews.
Review sites depend on user trust, and that trust is eroded when businesses are able to manipulate their own reviews. Some, including Yelp, view themselves as passive conduits for their users' reviews. Others take a more active role in fighting against censorship of patients. We think the latter approach makes more sense.
In this article, we'll consider some of the ways review sites can stand up for their users when faced with attempted censorship. Sites can be more proactive about providing legal support to users facing legal threats. They can promote transparency by publicly disclosing censorship attempts. And they can use their influence to directly penalize businesses caught trying to censor patients.
The story of "Alice"
In May 2010, a woman we'll call Alice visited Dr. Cirka's office and signed a "mutual agreement" similar to the agreement I was asked to sign last February. It claimed that "nothing in this agreement prevents a patient from posting commentary about the dentist" online. On the other hand, it stated that "patient exclusively assigns all Intellectual Property rights, including copyrights, to dentist for any written, pictorial, and/or electronic commentary."
In early June, Alice posted a review of Dr. Cirka on Yelp. "I would have really appreciated if the fact that I could only be reimbursed at out-of-network rates had been explained to me before I shelled out hundreds of dollars," she wrote. She faulted Dr. Cirka's staff for refusing to "admit their fault" and warned Yelp users to research what their insurance plans covered before becoming one of Dr. Cirka's patients.
Three days later, Dr. Cirka wrote a letter to Yelp demanding the removal of Alice's review. He asserted that "the patient has assigned all rights to me," and included a copy of the "mutual agreement" Alice had signed.
Yelp declined to remove the review, but Dr. Cirka also sent a legal threat directly to Alice. In his letter to her, he claimed that her comment "violated a legal agreement that you signed" (it didn't) and that she was "in violation of the DMCA" (she wasn't). He warned her that "if you do not comply, you face legal action."
Not wanting to face legal risks she probably didn't understand, Alice took down her review.
In an e-mailed statement, Dr. Cirka told Ars that he "couldn't remember the details" of Alice's case. He now admits that it "does not make sense" to ask patients to sign an agreement as a way of controlling reviews by non-patients.
"I really do not want to do anything other than what I am good at which is seeing patients and treating them well," he said. "I think everyone is equal in their rights and all rights should be protected."
Dr. Cirka said he's no longer using the "mutual privacy agreement" and won't be renewing his Medical Justice membership.
"It's scary to be involved in litigation"
Last year Yelp put Alice in touch with Paul Levy, an attorney at the public interest group Public Citizen. Reached by phone, Levy told Ars that Alice's decision to take her review down is typical. "Most lawyers will say 'take the review down while we think about this,'" he said. "So the threat of a lawsuit results in the removal of the speech."
On the other hand, Levy said, "If the person walks into my office, I will say 'don't take it down. This is garbage, and we'll represent you for free.' Frequently that results in the speech staying up while the user thinks about it."
Unfortunately, by the time she got in touch with Levy, Alice had already removed the review, which meant the ball was in her court. She could have put the review back up or sought a declaratory judgment that she was entitled to exercise her free speech rights. But "it's scary to be involved in litigation," Levy said. "For many ordinary people, the easiest thing is to move on with your life."
Levy said that Alice is the second person he has offered to represent against attempted censorship by an MJ client. He no longer has records from the earlier case, but he thinks it involved a prior version of the MJ agreement that had an explicit non-disparagement clause. Like Alice, the earlier patient had "moved on with her life" and wasn't interested in litigating to vindicate her rights.
Standing up for users
Review sites can protect the integrity of their review processes by actively fighting such takedown requests. Yelp promises to do this, saying "[we] make it a point to involve ourselves early on to protect the rights of legitimate reviewers." They did put Alice in touch with Paul Levy, and he praises Yelp's conduct. "I give them credit for wanting to deal with these problems," he said.
But review sites could do more. For example, Yelp could have offered to represent Alice itself, or even filed for a declaratory judgment that Alice's post was not an infringement of copyright.
According to Yelp spokeswoman Stephanie Ichinose, that isn't Yelp's role. "The way we approach this space is that we're a platform," she told Ars by phone. When faced with a lawsuit threat, "some reviewers might choose to take down their reviews, others may choose to leave them intact."
Wendy Seltzer, founder of the Chiling Effects clearinghouse, thinks that's not good enough. "It's in Yelp's interest not to let it or its submitters be manipulated by these agreements," she said. "The reading public is going to learn that these things exist and then come to distrust the sites."
The importance of transparency
Transparency is another key weapon against review censorship. Ars talked to Angie Hicks, founder of Angie's List, about the steps her company takes to prevent manipulation by business owners.
"Angie's List is positioned very differently in the review space," she said. "We don't accept anonymous reviews. Consumers pay to be a part of Angie's List. And any time a flag is raised about a review, it's reviewed by a human."
Angie said that her company actively penalizes businesses who try to use user agreements to censor her users. "Whenever we find that a doctor is asking patients to sign this kind of agreement, we put a notification on that provider's record," she said. "We also take them out of search results."
John Swapceinski of RateMDs.com told Ars his site is working on a similar feature to inform users when a doctor has a "mutual privacy agreement" in place. The site already has a "Wall of Shame" listing known users of MJ "privacy agreements."
RateMDs has also committed to sending DMCA take-down notices it receives to Seltzer's Chilling Effects clearinghouse.
Ichinose says that Yelp does not have similar policies in place. It does not notify users of attempts to manipulate ratings. It does not penalize ratings manipulators in search results. And it does not disclose takedown notices to Chilling Effects.
Conclusion
We don't want to be too hard on Yelp. This story was made possible by its assistance, and the site deserves credit for helping Alice find pro bono representation. And ultimately, if a user wants to take down her review, there may not be anything Yelp can do to change her mind.
But we think Yelp's conception of itself as a passive conduit for its users speech is misguided. When a business owner threatens to sue the author of a negative review, that is not just a private dispute between two parties. Successful censorship undermines the integrity of the reviewing process and harms every user of the site.
The passive conduit model served Yelp well in the early years when it was a startup struggling to gain traction. But those days are far behind it now. As Yelp grows more successful and influential, businesses are devoting more resources to subverting the reviewing process. If Yelp wants to preserve the credibility of its reviews, it is going to have to invest resources of its own in fighting these attacks.
And of course the same applies to other review sites. I've mostly focused on Yelp because it's an industry leader, and because it's the site I actually used to find Dr. Cirka. But the same critique applies to many of Yelp's competitors. Few review sites are as vigilant as they should be about defending their reviewers free speech rights. Alice's story should be a wake-up call.
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