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Free Speech and Anonymity Guaranteed on Internet? State Wants to Identify Blogger

by Gerri L. Elder

A blogger in Paris, Texas who wished to remain anonymous while he presented a critical view of a local hospital system on his blog may not have that luxury.

A state district court judge has said that he will order a Dallas Internet service provider (ISP) to reveal the identity of the blogger, who the hospital says has defamed it by blogging on the Internet.

Attorney Will Appeal to Keep Blogger Anonymous

The blogger’s lawyer says that he will appeal for the blogger to keep his anonymity so that he will be able to speak without fear of retaliation.

The defamation suit by the hospital against the man is unique in this small Texas town of 26,490.

It tests the bounds of privacy on the Internet, First Amendment freedom of speech as well as the rights of whistle blowers.

The blogger’s lawyer, James Rodgers, says that a core question in the case is whether a Plaintiff in a lawsuit can strip a person of their anonymity simply by filing a lawsuit, even if the lawsuit has no merit.

Rodgers says that if a Plaintiff can expose a person simply by filing a lawsuit that has not proved to have any merit, the effects could be devastating to free speech on the Internet.

Free Speech Allowed Online? What are the Lines?

Since there have been very few cases involving free speech on the Internet in Texas, or anywhere else in the United States, there is very little case law to go on.

This case in tiny Paris, Texas, may prove to be big in establishing the standard of what rights to free speech and anonymity bloggers actually have when posting thoughts and opinions on the Internet.

The blogger has been running a website since March, 2005 in which he has been extremely critical of the business management and health care provided by Paris Regional Medical Center, which is owned by Essent Healthcare Inc. of Nashville, Tennessee.

Blogger Questioned Hospital’s Quality of Care

In April, a posting on the blog stated, “Quality issues are in play, patients are avoiding the facilities unless they have no choice, and employees are only staying because their families anchor them, not because of any loyalty to Essent.”

The blogger goes by the pseudonyms fac_p and Frank Pasquale and comments on the blog are anonymous, but some seem to be hospital employees and this is of great concern to Essent.

Essent filed the defamation lawsuit in June and has not only targeted the blogger but also several commenters on the blog and wants the identities of all of the participants disclosed in court.

The blogger and commenters who are being sued are currently named in the lawsuit only as “John Does 1-10.”

The lawsuit claims that the blog has had 169,272 page views since it began and that the content and comments on the blog violate patient privacy under the federal Health Insurance Portability and Accountability Act, (HIPPA).

Hospital Says They Respect Bloggers Rights, but He Expressed Opinons in Unacceptable Way

Essent issued a public statement recently that said that they respect the blogger’s rights, as well as the rights of the general public, to voice their opinions and that they welcome constructive criticism.

However, they say that the way in which the defendants have chosen to express their opinions is unacceptable. The hospital calls the blog “a cowardly infringement on the confidentiality rights of PRMC patients and an unwarranted attack on the reputation of the hospital.”

The hospital has asked District Judge Scott McDowell to order a Dallas ISP to release the blogger’s name. Since federal law bars an ISP from releasing the name of a customer without a court order, this is the only way they can find out who fac_p or Frank Pasquale really is.

Judge McDowell has already notified lawyers for the hospital and the blogger’s lawyer that he will honor the request and plans to issue an order for the blogger to be disclosed.

On the blog, fac_p says that the hospital only really wants the names of hospital employees who have posted comments on the blog or supplied him with information that has been posted on the blog. The blogger’s lawyer, Rodgers, says that the employees could be considered whistle blowers.

A spokeswoman for the hospital, Kim Fox, said that Essent is happy that the blogger’s identity will be revealed so that the lawsuit can go forward.

She said that the hospital’s biggest concern is with the blogger’s statement on his blog that some hospital employees have given him medical records of their patients.

While none of the allegedly leaked patient records have appeared on the blog, if an employee of the hospital truly has provided the blogger with these records it would be a violation of federal law. Fox says they have to get to the bottom of it.

Rodgers vows to appeal the judge’s decision to have the ISP disclose the identity of the blogger. He says the problem in this is that there is no appeal procedure established for an anonymous defendant who has not even been served with the lawsuit.

This case is new legal ground for everyone and the decisions made here will most certainly be landmarks for future cases involving Internet privacy and anonymous postings made on the Internet.