Suit against blogger a legal test in Paris, Texas

 

Hospital's pursuit of critic's identity tests the limits of speech and privacy

By R.G. RATCLIFFE

An unlikely Internet frontier is Paris, Texas, population 26,490, where a defamation lawsuit filed by the local hospital against a critical anonymous blogger is testing the bounds of Internet privacy, First Amendment freedom of speech and whistle-blower rights.

A state district judge has told lawyers for the hospital and the blogger that he plans within a week to order a Dallas Internet service provider to release the blogger's name. The blogger's lawyer, James Rodgers of Paris, said Tuesday he will appeal to preserve the man's anonymity and right to speak without fear of retaliation.

Rodgers said the core question in the legal battle is whether a plaintiff in a lawsuit can "strip" a blogger of anonymity merely by filing a lawsuit. Without some higher standard to prove a lawsuit has merit, he said, defamation lawsuits could have a chilling effect on Internet free speech.

"Anybody could file a lawsuit and say, 'I feel like I've been defamed. Give me the name,' " Rodgers said.

But there is little case law in Texas or nationally to give judges a standard for when to expose anonymous postings on the Internet.

"Right now it's a very murky area of the law," Rodgers said this week.

Since March 2005, The-Paris-site blog has been relentlessly critical of the business management and health care provided by the Paris Regional Medical Center, owned by Essent Healthcare Inc. of Nashville, Tenn.

"Quality issues are in play, patients are avoiding the facilities unless they have no choice, and employees are only staying because their families anchor them, not because of any loyalty to Essent," is a mild example from an April blog posting.

Commenters targeted, too

The blogger identifies himself under pseudonyms of fac_p and Frank Pasquale. Most blog commenters — some of whom appear to be hospital employees — are anonymous.

In June, Essent filed a defamation lawsuit in state district court against "John Does 1-10" for postings and comments made on the Paris blog, which the suit says has had 169,272 page views "from sites throughout the United States and the rest of the world" since it began. The lawsuit also claims patient privacy was violated under the federal Health Insurance Portability and Accountability Act, HIPPA.

"We understand and respect the blogger and general public's right to voice their opinions about PRMC and welcome constructive criticism," the company said in a statement issued this week.

"However, the method used by the defendants is wholly unacceptable. It is a cowardly infringement on the confidentiality rights of PRMC patients and an unwarranted attack on the reputation of the hospital."

The company claims in one instance, the blog posted enough information on a patient death to identify the patient before the family was notified.

Essent asked District Judge Scott McDowell to order a Dallas Internet Service Provider to release the blogger's name. Federal law bars an ISP from releasing the name of a customer without a court order. McDowell on Monday notified lawyers for Essent and for the blogger that he will be issuing such an order within the next week.

"The only thing this might do is silence an open criticism of Essent's method of doing business," fac_p said on the blog in reaction to the judge's notice.

Fac_p said on his blog that what Essent really wants is the names of hospital employees who have posted comments on his site or given him information. Rodgers said these employees could be considered whistle-blowers.

Spokeswoman Kim Fox said Essent is pleased that McDowell will order the release of the blogger's name, because now the lawsuit can proceed.

Fox said Essent's biggest concern is that the blogger has said some hospital employees have given him patient records. Even though they have not been posted on the blog, Fox said this represents a violation of federal law and the company needs to find the employees who are doing it.

But Rodgers said the next step will be some sort of appeal. He said the problem is that Texas has no appeal procedure for an anonymous defendant who actually hasn't been served the lawsuit.

Lawsuit part of trend

The blogger's lawyer said he is studying how to appeal to the 6th Court of Appeals in Texarkana or to file a lawsuit in federal court. He said he also hopes groups that deal with free speech and Internet privacy issues will get involved.

Rodgers said the question is not whether a plaintiff in a defamation lawsuit should be able to get the name of an anonymous blogger, but "what hoops they have to jump through" before violating the blogger's free speech rights.

The number of corporate and political lawsuits around the country against "John Doe" bloggers has been growing dramatically since 2000, said University of Florida law professor Lyrissa Barnett Lidsky, an expert on these types of lawsuits.

Lidsky, a Texas native and graduate of the University of Texas law school, said most Internet libel lawsuits are brought to "chill the speech of bloggers," though some involve genuine defamation.

"It is evolving. You're seeing courts struggling to accommodate different interests," Lidsky said. "On the one hand, you do have a right to speak anonymously. On the other hand, you do not have the right to defame people."

Suit against blogger a legal test in Paris, Texas | Chron.com - Houston Chronicle

 

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