Are Non-Disparagement Clauses a Good Idea?

Creatively, some physicians have been turning to non-disparagement clauses within  confidentiality agreements as a way to prevent patients and potential patients from posting negative online reviews.

For example, a New York dentist required all of her patients to sign a confidentiality agreement precluding the patients from posting comments about the dentist or her practice and assigning her the all copyrights in those comments.  On its face this tactic seems like a way around the anti-SLAPP statutes and even Section 23 of the Federal Communication Decency Act, which would otherwise protect websites from liability for publishing online reviews only in this circumstance the website is publishing copyrighted material.  The confidentiality agreement at issue provided in part:

In consideration for treatment . . . Patient agrees to refrain from directly or indirectly publishing . . . commentary about Dentist and his practice, expertise and/or treatment. If Patient does prepare commentary for publication about Dentist, the Patient exclusively assigns all Intellectual Property rights, including copyrights, to Dentist for any written, pictorial, and/or electronic commentary . . .

While this agreement seems clever, the enforceability of the document is highly contested in a class action lawsuit filed against the dentist.   The lawsuit began with a very unhappy patient who had used the dentist one time for emergency dental services.  That patient selected this dentist because she was a preferred provider under this plan. It is likely the patient did not read any online reviews, good or bad, about this dentist prior to selecting her as her patients were not allowed to write reviews.  The patient alleges that the dentist made him pay several thousand dollars up front for the dental services and promised to submit his insurance forms so he would be reimbursed. Only the forms were never submitted and the patient was never reimbursed.  The patient became severely frustrated and posted a one star review on YELP and DoctorBase explaining his problem with this dentist.  In response, he was met with a draft of a petition from the dentist that claimed $85,000 in damages, an additional $25,000 in damages for fraud and the dentist was charging him $100 a day plus interest until the review was taken down.

In response, the patient retained his own lawyer and filed the class action lawsuit.  What exactly transpired between this dentist and the patient prior to the lawsuit is not known.  What is known is that the publicity from this lawsuit has led to a barrage of additional negative comments about the dentist and an online approval rating that will be hard to overcome. The dentist has now closed up her practice and appears to no longer be cooperating with her attorney as the attorney has been trying to withdraw from representing her for the past several months.

In the end, whether the confidentiality agreement is ultimately upheld by the courts does not matter in this situation. The damage is done and may be irreversible.  It is understandable that the dentist wanted to be proactive in protecting her reputation from unfair reviews but the lesson here is to evaluate the ultimate costs before choosing a response strategy.