So, today I posted on a few blogs that had picked up the story--and there are a lot! And, I received this email:
Re: [Concurring Opinions] New Comment Posted to 'Purloined Persona or Just Another FP?'From: Frank Pasquale (http://by126w.bay126.mail.live.com/mail/ApplicationMain_11.10.0000.0112.aspx?culture=en-US&hash=99283837#)
To: email@example.com (firstname.lastname@example.org)
No offense taken---I thought it pretty likely that this was the case, since I'm not famous!
And a friend of his had this to say:
Finally, two asides about this particular case:
First, we are going to see more and more of these motions to disclose the identity of John Doe defendants in cases involving pseudonymous or anonymous online speech. It seems clear to me that there needs to be a mechanism for plaintiffs who are truly harmed by such speakers to hold them accountable in court (including in legitimate IP infringement cases). On the other hand, it should not be a routine procedural formality to unmask anonymous speakers just because you filed a complaint with some allegations. Our system is extremely lenient toward complaints at the initial or “pleading” stage. There is tension here with underlying fundamentals of civil procedure, because we would need a judge to make some assessments of the lawsuit’s merit at the very outset. This happens to some degree when plaintiffs seek preliminary injunctions, but in those situations at least the defendant is already at the table. There is more work to be done in developing appropriate standards for these ISP subpoenas.
Second, I have not seen the complaint, but based on the newspaper story alone I wonder whether the hospital’s case is very strong to begin with. It seems to allege defamation and violation of patients’ privacy.
On defamation, many of the newspaper’s quotations from the Paris Site seem to be statements of opinion that are not actionable, for example: “This isn’t Nashville or Boston or Dallas or Austin. It is a community that you wounded and are sucking out the life’s blood. We don’t like your style of vampires.” Clearly this is not an accusation that Nosferatu actually works at the hospital in Paris, Texas. The most likely candidate for defamation — again, just going on the news report — is this insinuation: “Apparently Medicare fraud is in the air, and PRMC is looking for a scapegoat. Billing practices from the rehabilitation unit are suspect, as well as vascular ultrasound studies billed by the hospital, but done by unregistered technologists.” I’m not sure, and I’d need to see it in context, but this may also skirt the boundary of defamation if it can be found to raise questions based on reliable information rather than to state flatly that the hospital is engaged in wrongdoing.
As to the patient privacy angle, what gives the hospital standing to sue on behalf of its patients? Not the privacy torts. Not HIPAA, which provides no right to sue (and anyway, a loophole in HIPAA means that individuals who are not “covered entities” cannot be held liable for breaches under the statute, as explained in this DOJ memorandum — the topic of an excellent seminar paper by one of my students last year). Again, I have not seen the complaint, but this does not sound like a slam-dunk case. If it is harassment against a gripe site — if that’s what’s really happening — then I hope these bloggers can find themselves a good pro bono lawyer.