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Public Citizen Wins Appeal on Behalf of Lasik Surgery Gripe Web Site Operator

March 12, 2007

Public Citizen Wins Appeal on Behalf of Lasik Surgery Gripe Web Site Operator

Consumer Has First Amendment Right to Identify Doctors Online After Unsuccessful Surgery, Court Rules

WASHINGTON, D.C. – A Pennsylvania resident left legally blind after lasik eye surgery has the right to identify his doctors on a Web site warning the public about the risks of the surgery, according to a decision issued late Friday by a Pennsylvania state court.

Public Citizen filed an appeal in June 2006, in Pennsylvania Superior Court in Philadelphia, to reverse an injunction against Dominic Morgan forbidding him from criticizing doctors Herbert Nevyas or Anita Nevyas-Wallace on any Internet site. The court overturned the injunction and found that Morgan had not waived his First Amendment right to update his site and include future criticism of his doctors. Carl Hanzelik of the law firm of Dilworth Paxson LLP in Philadelphia actively participated in the appeal as local counsel for Morgan.

Morgan received unsuccessful lasik surgery in 1998 and created the Web site www.lasiksucks4u.com in 2002. His doctors threatened to sue him after he included criticism of them that they claimed was defamatory. Morgan removed all criticism of the doctors while he reviewed the libel claims and then added new material to the Web site several weeks later that criticized his doctors and provided 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.

Judge Edward J. Maier of the Court of Common Pleas in Philadelphiaruled in 2005 that Morgan’s removal of references to his doctors constituted an agreement to waive Morgan’s free speech rights concerning future criticism. He prohibited Morgan from mentioning the Nevyases’ names on www.lasiksucks4u.com or on any Internet Web site. Friday’s ruling overturned that decision.

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.

“This is another victory for consumers who use the Internet to criticize companies,” said Paul Levy, the Public Citizen attorney who filed the appeal. “Free speech and consumer rights would be seriously endangered if the temporary removal of criticisms from a Web site could be construed as an ‘agreement’ not to say anything about the company in the future.”

To read the decision, click here.

To learn more about the case, click here.

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