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Hospital Wants Critical Blogger's Anonymity Ended 181

Posted by CowboyNeal
from the privacy-not-always-right dept.
rs232 sent in a link to this story about one's right to privacy, which opens: "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."
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Hospital Wants Critical Blogger's Anonymity Ended

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  • wellll accttualllyyy (Score:5, Informative)

    by Valar (167606) on Saturday September 29, 2007 @10:20AM (#20793147)
    From reading the FA, it seems like a big part of the hospital's lawsuit is that the blog has been disclosing patient information. In some cases, enough patient information that the patient could be personally identified from the posting. So yes, part of it is your standard 'they are saying bad things about me and I don't like it and I want to know who it is!', but I think part of it is perfectly reasonable-- stop writing about the patients without their consent.
  • It's in TFA. (Score:3, Informative)

    by khasim (1285) <brandioch.conner@gmail.com> on Saturday September 29, 2007 @10:23AM (#20793167)

    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.

    Can someone file a lawsuit and have your anonymity removed ... just because they filed a lawsuit?

    A judge will have to "judge" whether the statements are libel or not.
  • Re:HIPAA Violation! (Score:2, Informative)

    by $pace6host (865145) on Saturday September 29, 2007 @11:33AM (#20793649) Journal

    FTFA: 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. IF that is true, then there absolutely needs to be an investigation. I'm all for allowing folks to honestly criticize care and use medical documentation that was authorized by the patient, but getting it without patient authorization?! I would have a problem with the employees that gave it to him. If the blogger is on to something, then he should approach the patients involved and ask them for the information. In this day of litigation, I'm sure most patients would jump on board for the chance of suing for $$$.
    If this is true, then it's a HIPAA violation, not defamation. And while I would agree it needs to be investigated, HIPAA violations, as it says here [hhs.gov]are enforced civilly by HHS (not the hospital) and criminally by the DOJ (obviously not the hospital). So, I reject the assertion that Essent's legal action has anything to do with the patient privacy issues. All the hospital should need to do for that is contact the federal prosecutor's office and/or the HHS, and cooperate with information requests. Texas may even have its own state laws (and offices) that have jurisdiction. We don't need hospitals playing DA, and we certainly don't need them filing defamation suits unless they have defamation issues to address. So I hope they really think they have defamation issues, and this isn't some legal ploy to smoke out the name of a critic for retaliation.

    I also think the best defense to anything said by an anonymous blogger about a corporation is for the corporation to post their own statements, not to sue for defamation, at least not until other avenues have been exhausted. Open dialog and fight bad speech with more speech, not with actions that could be interpreted as an attempt to silence whistle-blowers or retaliate against what might be valid criticism. This is likely to call more attention to the claims (compounding the damage if they are false) and lead even more area residents to question the hospital's reputation.

  • by mysticgoat (582871) on Saturday September 29, 2007 @12:06PM (#20793871) Homepage Journal

    I've read TFA, and went beyond that to find the blog (the paris site blogspot [blogspot.com] and google a little on Essent Healthcare.

    I did not see anything suggesting a violation of HIPAA on the web site (my background includes several years as the Information Security Officer for Nursing Service at a largish hospital: I'm reasonably familiar with HIPAA requirements). There is nothing illegal about a third party discussing the particulars of someone's treatment at a hospital, even when that includes information that could allow someone to identify the patient. It is illegal for a hospital or healthcare professional to release identifying information, even unintentionally, but if that occurred here, it would have occurred before the blog posted about it.

    In other words, if there was such a violation, it would have involved the hospital employee who leaked the data to the blogger, not the blogger or the blog. HIPAA governs healthcare providers and the policies and procedures they use: its scope does not extend to information that has gotten out into the wild.

    If the hospital had adequate information security and HR policies in place, the alleged leak could not have occurred without triggering flags that would identify the staff person who leaked the information. Essent's pursuit of this blogger on the basis of HIPAA violations is a tacit admission that they are negligent— not exercising due diligence— regarding confidential information. Maybe they need to spend more money on paper shredders, enforce policies about logging out of the system when leaving a workstation unattended, disallow corporate officer access to confidential patient files, and so forth.

    A noteworthy tidbit is that Essent Healthcare is a small part of the Healthtrust Purchasing Group [healthtrustpg.com], which seems to be buying up hospitals and clinics all over the country for the purpose of making profits. This is capitalism at its finest, but it does mean that improving patient care is no longer the highest concern of those running the show.

  • by cpt kangarooski (3773) on Saturday September 29, 2007 @12:32PM (#20794039) Homepage
    Were assured free speech by our constitution but that is emphatically not an assurance of anonymous speech.

    It's funny you say that. Mere anonymous speech is, in fact, protected. If there is something more to it, e.g. libel, then the anonymity might be lost, but otherwise it is as protected by the First Amendment as any other speech.

    Here is what the Supreme Court had to say on the subject in Talley v. California, 362 US 60 (1960) (internal citations omitted):

    Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all. The obnoxious press licensing law of England, which was also enforced on the Colonies was due in part to the knowledge that exposure of the names of printers, writers and distributors would lessen the circulation of literature critical of the government. The old seditious libel cases in England show the lengths to which government had to go to find out who was responsible for books that were obnoxious to the rulers. John Lilburne was whipped, pilloried and fined for refusing to answer questions designed to get evidence to convict him or someone else for the secret distribution of books in England. Two Puritan Ministers, John Penry and John Udal, were sentenced to death on charges that they were responsible for writing, printing or publishing books. Before the Revolutionary War colonial patriots frequently had to conceal their authorship or distribution of literature that easily could have brought down on them prosecutions by English-controlled courts. Along about that time the Letters of Junius were written and the identity of their author is unknown to this day. Even the Federalist Papers, written in favor of the adoption of our Constitution, were published under fictitious names. It is plain that anonymity has sometimes been assumed for the most constructive purposes.

    We have recently had occasion to hold in two cases that there are times and circumstances when States may not compel members of groups engaged in the dissemination of ideas to be publicly identified. The reason for those holdings was that identification and fear of reprisal might deter perfectly peaceful discussions of public matters of importance. This broad Los Angeles ordinance is subject to the same infirmity.


    Again, sometimes it is necessary to pierce anonymity. But not all the time.
  • by Khyber (864651) <techkitsune@gmail.com> on Saturday September 29, 2007 @12:53PM (#20794231) Homepage Journal
    "But certainly I don't think the blogger should be arrested for libel"

    Considering libel is a civil matter, arrest would be improper. Lawsuit, on the other hand...
  • by Futurepower(R) (558542) <MJennings.USA@NOT_any_of_THISgmail.com> on Saturday September 29, 2007 @01:56PM (#20794675) Homepage
    You may as well read the Paris-Site blog [blogspot.com] yourself.

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