The federal court in Manhattan has refused to dismiss a proposed class-action against a dentist’s confidentiality agreement barring patients from posting negative reviews online. In this case, the patient, Robert Lee, filed a class action lawsuit against his dentist, Stacy Makhnevick, contending that the “Mutual Agreement to Maintain Privacy” (the Agreement) that Makhnevick asked all her patients to sign prior to receiving her service was unconscionable and misused copyright law. Furthermore, Lee contended that his public comments on the online review rating Makhnevick’s invoice made fair use of copyright law. Concurring, the court was clearly not impressed by the dentist’s creative use of copyright law.
Apparently, as the trend of patients making online reviews of medical services has expanded, many medical practitioners have sought novel ways to shield themselves from negative reviews. In this case, Makhnevick required all her patients to sign the “Mutual Agreement to Maintain Privacy,” in which patients waive their right to comment publicly on the dental services received and assigned all copyrights on online comments to her. Any violation of the Agreement by patients incurred a $100 dollar-a-day liability to Makhnevick. The idea of assigning the copyright to the dentist was that Makhnevick could just remove the negative comments herself if she did not like them.
In this case, Lee posted negative comments about Makhnevick’s service on Yelp after receiving dental treatment from her. After Makhnevick found out about Lee’s comments, she demanded that Yelp remove the comments based on the assignment of the copyright signed over to her by Lee. Yelp refused to comply. It seems that Yelp was also unimpressed by the Agreement. Afterwards, Makhnevick became very angry and attempted to intimidate Lee with the threat of lawsuits if he did not comply with her demand to remove the negative comments. Makhnevick’s effort backfired. Lee filed a pre-emptive class action against Makhnevick instead.
Subsequently, in court, the attorney for Makhnevick and her dental office argued that the case should be dismissed since there was no controversy. However, the court found against Makhnevick on the basis that she had created the controversy herself prior to the lawsuit and was now arguing that there was no controversy because she wanted the class action lawsuit dismissed.
The court pointed out to Makhnevick that there was controversy, because Makhnevick had attempted to enforce the “Mutual Agreement to Maintain Privacy,” warned Lee that he would be liable for $100 a day if he did not remove the negative comments from Yelp as per the Agreement, sent Lee a draft of the Complaint and threatened to file if Lee did not remove the negative comments, and sent Lee invoices for the services stating that if he did not pay, the invoices would be sent to a collection agency.
If someone is intimating you because you posted a negative review online, or, equally, if you are the victim of an untrue and malicious negative review online, you need to discuss your rights and options with an experienced business and civil trial attorney. Call the Law Offices of Tony T. Liu today at (714) 415‑2007 to schedule an appointment, or contact us online via our secure contact request form.