Tweet and be damned

A HUGE number of people are now engaging with the world through the internet. The benefits of the internet revolution are well documented and easily identified. Less well understood are the downsides. What are the risks associated with internet postings and what can you do when it all goes wrong?

The collective reputations of the professions are reinforced by ethical codes which are not simply a matter of personal choice. These codes are also used as a standard against which professionals are assessed and judged. A professional’s reputation is of fundamental importance, reaching wider than professional ethics and crossing the boundary with personal integrity. It is perhaps in this area that social networking poses the greatest risks for doctors and dentists.

Most internet content is generated in one of two ways – either an individual can create and post it themselves or it may be created and posted by a third party. Some programmes and web spiders go further, replicating, blending and aggregating content from several search engines.

We may not think there is any risk associated with our own postings but bloggers and social networkers should beware. The good news is professionals can manage the risks of selfauthored information with a little self discipline.

Comment with care

No doubt it can sometimes be useful for professionals to express their views online but they should exercise the same level of editorial control and self criticism as if they were placing their comment in a professional journal. The GMC provides guidance for doctors on providing or publishing information about services or otherwise putting information into the public domain (see ‘Additional resources’).

Comment posted online could potentially reach a far wider audience of professional peers and patients than a journal article. The ease with which blogs and forum posts are made can lead to an informality inappropriate for the expression of professional views. Internet postings can remain as cached information on search engines and sites for a long time, leaving the embarrassed professional dealing with the fallout of an ill-considered remark for longer than anticipated.

Social networking sites that encourage spontaneous comment, such as Facebook and Twitter, require particular care. A message of 140 characters allows ample space to tweet a disparaging remark which may in fact be defamatory. If you have a Twitter profile which mentions your employer, it is a good idea to indicate that views expressed are personal.

Privacy settings

Professionals should be wary of having publicly accessible profiles which contain information connected with their private lives. If they have private profiles they should consider using the highest security settings to control content and access. On sites such as Facebook we recommend professionals take a similar approach to online friendships as they do to real-life friends. Before accepting a proposal for online friendship from someone who is not a trusted friend in real life, professionals should consider if this will expose private information to a wider audience than they would like.

It is now common practice for employers to conduct internet searches of job candidates, consequently our internet reputations have the ability to impact upon our professional lives.

Third party comment

This is potentially a dangerous area for healthcare professionals. Unfortunately not all patients have a positive view of their treatment and care, and this can be the case even where care is good and the practitioner’s approach is professional. Some patients, perhaps without justification, may feel aggrieved and look to publicise their views, which can be a particular problem in patients with mental health complaints.

Most complaints made in the press are subject to editorial control which provides a degree of comfort. The GMC’s guidance for dealing with criticism in the press encourages doctors to restrict any response to an explanation of their legal and professional duty of confidentiality. The GMC state that if a press report might cause patients to be concerned about a doctor’s practice, the doctor may give general information about their normal practice but must be careful to avoid disclosing any personal information about the patient or their care. Comment in the press must not go beyond a simple denial and should provide no additional information (for further GMC guidance see ‘Additional resources’).

Where a complaint is mainly or solely aired online, meaningful regulation is very much harder. What should a doctor faced with these allegations do? The first port of call for practitioners experiencing onlineattack should be their medical defence organisation to see what support and advice is available.

We do not encourage clients to engage in discussions with or respond to the individuals making allegations as this can often make matters worse. There are however some situations where statements made about our clients are so malicious that they feel compelled to take action.

Our first approach would normally be to check the terms of service for the host site. Frequently comments which are defamatory in nature will be posted anonymously. Many sites do not tolerate anonymous posting and will remove these comments on request. Sites will also in some circumstances remove comment which is defamatory on the basis that this is a breach of their terms of service. Negotiation with site moderators can be required since the assessment of what is offensive can vary, as can the amount of evidence needed to effect a takedown. Some sites require the signature of legal documents certifying the information in the complaint as true. Sometimes a site will require production of a court order.

It is possible to raise proceedings for defamation wherever content is viewable and, theoretically, one can forum-shop for the location likely to award the highest damages. This may be of limited practical use if the individual posting the information will not have financial resources to meet the claim. Orders for interdict (injunction in England and Wales) and non-harassment may be of more immediate use. In both types of action it is possible to seek interdict against the person posting the defamatory comment to provide immediate protection from further posting.

Experience shows that while such orders are granted against the individual making the posting, many websites will remove content when presented with evidence that a court order has been granted. A doctor seeking a non-harassment order will not be able to seek any compensation for the damage to their reputation in a non-harrassment case; however, we often find that our clients are more concerned about preventing a recurrence than seeking damages. Nonharassment orders are registered on the police national database. Should a breach of the order occur, that becomes a criminal matter, and if sufficient evidence is obtained the police will report the breach to the Crown to prosecute.

Non-legal solutions are offered by a number of internet firms who can optimise positive comment, relegating negative comment to the lower pages of search results. While such services can be part of a useful dual-pronged approach, these companies usually do not arrange for removal of content from the web.

Paul Motion, Partner, and Lindsay Urquhart, Associate, are members of the dedicated Internet Reputation Team at bto solicitors in Edinburgh, who have acted for a number of clients in ensuring the removal of negative internet comment and have obtained orders for the disclosure of the identity of anonymous bloggers and also non-harassment orders. They also have experience of dealing with host sites beyond the jurisdiction of the Scottish or UK courts and a network of international law contacts.