Blown To Bits

Fighting Anonymous Libel

Thursday, March 5th, 2009 by Harry Lewis

A few months ago, a physician who attended one of my talks started a correspondence with me about sites in which patients critique doctors. Anonymously, sometimes ungently. And sometimes by making statements that are false and injurious to the doctor’s reputation. That’s the definition of libel. What, I was asked, can be done?

There are, of course, many sites where anonymous garbage gets posted — think or But a site such as¬†¬†– the libel is discrediting a laboriously earned professional credential, in a way that could cost physicians their livelihood.

This is a classic case of the problems of anonymous speech. It should generally not be believed, unless there is some evident reason to think that the speakers could be imprisoned if their identities were known. Otherwise, with no skin in the game, why wouldn’t the speakers identify themselves, except to shield themselves from libel charges? It would seem that their confidence in their speech is very low if they hide themselves.

And yet anonymity has always been protected. Whistleblowers may have all kinds of reasons to want to get the truth out without spending their lives defending what they say. Ben Franklin wrote pseudonymously, even when he was just writing his almanac and had no political ax to grind. And so on. Courts generally are protective of online anonymous speech, and won’t force web site operators to reveal the names of their posters. Laws banning anonymity — though they do get proposed every now and then — would almost certainly be unconstitutional.

Now comes a free-market solution. Medical Justice provides waiver forms that doctors can ask their patients to sign. Sign the form and you agree not to malign the doctor on any web sites. Don’t sign the form and you can perhaps expect to be told that you might prefer to see another doctor. At least the doctor will be armed with a signed release from you if he or she tries to get a site to remove something unkind you’ve said.

Now this is a free-market solution, only if there is real competition in the doctor business. In a rural town with only one doctor, there may not be. In that case, the choice would be waiving your right to criticize the doctor, no matter how incompetent or unmannerly he or she proved to be, and forgoing treatment.

I tend to go with those, like the patient advocate quoted in this story, who find this practice noxious. Though you shouldn’t believe anonymous speech, this way of handling the problem blocks speech indiscriminately, the true along with the false and libelous. One can imagine all kinds of professionals asking clients to waive their rights to speak up. Even though only anonymous speech is at stake, the price seems too high.

But the doctors who use these forms are within their legal rights. So how to fight back? With more speech. is planning to create a “Wall of Shame,” listing doctors who make their patients sign waivers. Whatever you think of the criticism, or libel, of doctors on that site, that’s a fine approach to fight the doctors’ attempt to gag their patients.

4 Responses to “Fighting Anonymous Libel”

  1. allan Says:

    Doesn’t this depend on how you model the market for MD’s? If patients are not scarce, and physicians have a weak preference to distribute these, then unless free speech preferences are both strong and widely held, you wouldn’t see an equilibrium allowing patients to leverage their preferences.

    This is similar to the market for privacy in a competitive market: you can still have multiple competitors but if the merchant is not competing on the number of customers, there will be no privacy attached to the goods/services by any firm.

  2. Harry Lewis Says:

    Makes sense, I think. IANAE (I am not an economist). I was assuming strong competition by patients to a limited supply of doctors (specialists, say), which might put the doctors in a position to pick and choose their patients (as some doctors can already do).
    Of course, if we move to a more socialized system of medicine, perhaps everything in this thread becomes irrelevant.

  3. Zak Greant Says:

    I’m not so sure that this is an anonymous speech problem. If the speech is truly anonymous, the how would doctor identify the patient to enforce the waiver?

    It seems to be more of a chilling effect – both on a patient’s willingness to criticize their physician and on the relationship between the patient and their physician.

  4. nikki jenkins Says:

    Turning the tables just a little…what about the doctors who write libellous statements about their patients? Often entered under “dr unknown”. I guess what’s good for the goose is good for the gander! No pseudonym for me, I write under my own name but give anonimity to the doctors who nearly killed me and the ones that have lied and forged notes in order to cover the backs of colleagues. What does that say? It says patients’ have no legal recourse while pointy heads’ in authority positions walk all over us without their actions being exposed.