June 27, 2006

Public Citizen Appeals on Behalf of Gripe Web Site Operator to Protect Internet Free Speech

Court Ruling Endangers First Amendment Rights of Consumers Who Use the Internet to Complain About Companies

WASHINGTON, D.C. – A Pennsylvania resident left legally blind after lasik eye surgery should be allowed to identify his doctors on a Web site warning the public about the risks of the surgery, Public Citizen said in an appeal submitted today on his behalf in a Pennsylvania state court.

The appeal, which was filed in Pennsylvania Superior Court in Philadelphia, seeks to reverse an injunction against Dominic Morgan forbidding him from criticizing doctors Herbert Nevyas or Anita Nevyas-Wallace on any Internet Web site.

Morgan received unsuccessful lasik surgery in 1998 and created the Web site www.lasiksucks4u.com in 2002. After he included criticism of his doctors on the site, they threatened to sue him unless he eliminated certain statements that they claimed were defamatory.  Morgan removed all of the criticisms of the doctors while he reviewed the libel claims and decided what he could legally post. However, when he added new material criticizing the doctors to the Web site several weeks later, along with documentary support of his claims, the doctors sued claiming that his initial removal of the criticisms to avoid suit constituted an agreement never to mention their names on the Internet. The doctors claimed that because they had “agreed” not to sue Morgan if he removed the criticisms, his temporary removal of the criticisms constituted his acceptance of such an “agreement,” which was binding on Morgan in perpetuity.

Companies routinely threaten consumers and Internet hosting companies with libel, defamation or trademark infringement litigation in response to legitimate criticism. With a short deadline for compliance, consumers are often pressured into removing criticism from Web sites and censoring their speech to avoid costly and time-consuming litigation.

In his correspondence with his doctors’ lawyer, Morgan did not acknowledge that his claims were defamatory, nor did he promise to refrain from mentioning the doctors in the future. In fact, he sent a letter reserving the right to add new information about the doctors on the site in the future.  

  Judge Edward J. Maier of the Court of Common Pleas in Philadelphia ruled that Morgan’s initial removal of references to his doctors on the original site, as well as subsequent correspondence between Morgan, his lawyer and the doctors’ lawyer, constituted an agreement to waive Morgan’s free speech rights concerning future criticism of his doctors. He then enjoined Morgan from mentioning the Nevyases’ names on www.lasiksucks4u.com or on any Internet Web site.

The appeal argues that as a matter of First Amendment law, the court’s decision wrongly imposes a prior restraint on Morgan’s speech that ignores the established principle that purported waivers of free speech must be found to have been clear and knowingly made and narrowly construed. As a matter of contract law, the appeal cites the fact that Morgan said nothing that could be construed as an agreement or a waiver of his speech rights. Not only did he say nothing about refraining from future criticism of his doctors, he expressly stated his intention and reserved his right to do just that.

“This case typifies a common problem for consumers who use the Internet to criticize companies,” said Paul Levy, the Public Citizen attorney who filed the appeal. “Consumers who receive threats from companies often react by taking down the criticisms while they evaluate their chances of defending a lawsuit. If the temporary removal of criticisms from a Web site can be construed as an ‘agreement’ not to say anything about the company in the future, this will have a chilling effect on Internet free speech and consumer rights.”

Carl Hanzelik of the law firm of Dilworth Paxson LLP in Philadelphia serves as local counsel for Morgan.

Public Citizen has a record of defending the First Amendment rights of Internet users. To learn more, click here.

To view the appeal, click here.

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