Psychiatrist Sues A Bunch Of Redditors For Criticizing His Therapy Services

from the a-move-sure-to-silence-future-criticism dept

Update: Redditors are crowdfunding their legal defense via GoFundMe. They are now being represented by Marc Randazza.

For reasons only known to the plaintiff, an American psychiatrist offering unlicensed services in Japan is suing a whole bunch of Redditors for defamation. The underlying reason for this lawsuit is obvious: searches for Dr. Douglas Berger or psychiatrists in Japan tend to return lots of links presumably owned by Dr. Berger, but more prominently, a bunch of warnings from Redditors at Japan-focused subreddits to steer clear of his psychiatric services.

So much is Dr. Berger hated by denizens of Japanese-oriented subreddits that one subreddit has even made an annual tradition of warning Americans in Japan (or looking to relocate there) away from Berger. This post also notes Berger himself has tried to make negative posts disappear from Reddit, sometimes with the assistance of reputation management firms.

It appears none of this has worked. Dr. Berger — living and working in Japan — has filed a defamation suit in Florida. This doesn’t make much sense, but I assume the court will sort out jurisdiction once the case gets underway. So far, there’s nothing more on the docket than Berger’s first and second complaint, the latter stripping out Microsoft and Google as defendants to focus solely on Reddit and Redditors. Berger at least focuses his lawsuit on the Doe Redditors, naming Reddit as a party solely for the purpose of obtaining identifying info. As his filing [PDF] states, he makes no assertions of liability as to Reddit.

That being said, there’s a lot not to like about this lawsuit. There seems to be plenty of critical opinions listed but very little actual defamation. Some statements could be construed to have crossed that line, but for the most part, we’re dealing with statements of opinion which cannot be treated as defamatory, no matter how negative they are.

Here are some of the many, many statements Dr. Berger would like to see sued into nonexistence [with my commentary in brackets]:

[t]he false and defamatory statements about Plaintiff Berger include but are not limited to the following:

that he is a ‘fucking maniac’ [opinion]
he is a ‘piece of shit’ [opinion]
‘gives patients the creeps’ [opinion]
that ‘he is not a medical professional’ [Depends on the definition. He is not licensed in Japan but is licensed in the States.]
‘he was disinterested in patients’ [opinion]
‘incompetent in actually giving therapy’ [opinion — and a layman’s opinion at that]
that he overprescribes drugs [questionable, but still looks like an uninformed opinion, not an assertion of fact]
that he ‘was always distracted on the computer while with a patient’ [even if an assertion of fact, still not defamatory]
that he said sexist comments to a patient’ that he told a female patient she will ‘be basically worthless after [she] lost her looks’ [this is borderline, but truth is an absolute defense, so if it can be shown that it happened…]
he misdiagnoses patients [borderline]
harasses patients online [this can be likely be proven one way or another if true]
takes advantage of patients [opinion]
scams patients [borderline]
that he is a ‘scam artist with a doctorate’ [borderline, but closer to opinion than the previous one]
that he is ‘incompetent or negligent in both’ (referring to [Dr. Douglas Berger’s] mental health services) [possibly defamatory]
that he is unstable [opinion]
he bilks clients out of their money for services that do not meet even the most basic professional standards [borderline]
he uses Paypal to avoid paying taxes [leans towards defamatory]
he is ‘deeply unprofessional, insulting and derogatory’ [opinion]
he is a ‘cast-iron racist’ [borderline, likely can’t be proven or disproven]
that he is a charlatan [opinion]
that another mental health service provider gets a lot of his angry ex-clients [possibly defamatory if false, but would possibly have to prove person knew this wasn’t true when it was posted]
that he is pushy [opinion]
that he is manipulative [opinion]
and that he disrespects clients and makes them feel like it is their fault they are depressed or stressed [opinion].

For the most part, we’re dealing with opinion. The borderline cases might make the lawsuit a worthwhile pursuit for Berger, but a large number of these statements are going to be tossed as they don’t clear the bar for defamation.

And some of this will hinge on whether or not the court decides Berger is a limited-purpose public figure for the purposes of this suit. If so, the bar goes even higher and is likely to give Berger very little return on investment. Berger’s contributions to several major publications on the subject of providing psychiatric services in Japan are likely to make him a public figure of sorts, even if only in the small arena of ex-pats providing unlicensed services in a foreign country.

Another problematic aspect of this lawsuit is the amount of information Berger wants Reddit to hand over so he can proceed with his suit.

  • Join Date
  • Last login
  • First Name
  • Last Name
  • Email Address
  • Phone Number
  • Email notification address for follow up comments
  • Zip Code
  • Date of Birth
  • Gender
  • Location
  • Originating IP address for each and every connection by each user to your service, including the initial account establishment
  • Remote port number for each user connection
  • The date & time for each session
  • The time zone used by your log file system
  • User agent detail of the user’s computing devices for each session
  • Any other such information available that includes basic subscriber information and non-content records about the user.

Hopefully Reddit will fight this demand for info, pushing back on the request until the judge narrows the list down to those who have made arguably defamatory statements (and limits the scope of what can be compelled from Reddit). The court should also be hesitant to grant unmasking requests like these prior to weighing the suit’s validity. Online anonymity — especially that related to public commentary on issues of public interest — should be given as much protection as possible, no matter how badly a plaintiff might want to clean up his search results.

Then there’s the question of jurisdiction. The only connection to Florida is the existence of property owned by Dr. Berger. He has no residence there, nor does he provide services in Florida. Reddit — a non-party for all intents and purposes — is headquartered in San Francisco. It’s not like Berger is dodging an anti-SLAPP law by filing in Florida as opposed to California — something his legal representation should be aware of. It may be Berger simply had no idea where to file it and picked a place nominally linked to him, rather than for some legal advantage not present in California.

While there may be some actionable statements in the Reddit-Berger dogpile, a majority of the comments are critical opinions. The problem is the suit targets everything Berger doesn’t like, rather than just the edge cases where defamation may have occurred. Given his past attempts to silence critical Redditors, this looks like an escalation meant to deter future negative comments, rather than seek retribution for the few times he may have been legally wronged. The problem with this tactic is it so very rarely works. If Berger doesn’t like the current state of Reddit, he’s going to find it much more unbearable once the backlash begins. Reputation management begins at home — or rather, at the office. Unless all of these Redditors are lying, Berger’s psychiatric offerings seem to have been consistently subpar. Seems like the smarter move would have been providing better service rather than seeking to silence unhappy patients after the fact.

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Comments on “Psychiatrist Sues A Bunch Of Redditors For Criticizing His Therapy Services”

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22 Comments
Anonymous Coward says:

Re: Re:

You can take advantage of someone while still providing the service, whereas a scam implies the service was not what it seemed. For example, a guy who only repairs tires could charge $50 at the shop, but $1000 roadside, because he is taking advantage of the roadside clients being in a bad position…but the service was still rendered as requested. He would be a scammer if he replaced the tires with convincing cardboard replacements that fell apart after he left.

Thad (user link) says:

Re: Re: Re:

It depends on context. The forum in which you make a remark is relevant in determining whether it’s a statement of fact or opinion; if you call someone “negligent” on Twitter, Reddit, or in an online comments section, the “in my opinion” is probably implied, as these are forums known for informal speech and rhetorical hyperbole. If, on the other hand, you’re a lawyer, and you’re speaking to an audience that knows you’re a lawyer, then using the world “negligent” might be taken as a statement of fact rather than rhetorical hyperbole.

Thad (user link) says:

Re: Re:

scams patients [borderline]

No, it really isn’t.

Here are some citations from one of the memos in our old friend Ayyadurai v Floor64 (pardon the formatting on the copy-paste job):

Most of the statements Plaintiff challenges are att
acks upon the credibility of his claim to
have “invented” email. These include, for example,
several passages in which Plaintiff is called a
“fake,” a “liar,” and a “fraud” who is advancing a
“false,” “misleading,” or “bogus” claim of
original inventorship (or words to that effect). (E
x. A hereto, § I.) The First Circuit has routinely
dismissed claims targeting such rhetorical hyperbol
e on the grounds that the opinions do not
imply any actionable misstatements of fact. See, e
.g., Phantom Touring, 953 F.2d at 728
(statement that musical was a “fake” and “a rip-of
f, a fraud, a scandal, a snake-oil job”;
affirming dismissal on motion for judgment on plead
ings); McCabe v. Rattiner, 814 F.2d 839,
842-43 (1st Cir. 1987) (statement that plaintiff wa
s running a “scam”); Gray, 221 F.3d at 248-49
(2000) (statement that plaintiff “faked” his close
ness to the president, which was deemed a
“vague and subjective characterization about what h
appened”); Freeman v. Town of Hudson,
849 F. Supp. 2d 138, 160-61 (D. Mass. 2012), aff’d,
714 F.3d 29 (1st Cir. 2013) (statement that
plaintiff was a “liar”; recommending that motion to
dismiss be granted).
Courts in other circuits have ruled similarly, reje
cting defamation claims based on
rhetorical attacks that constitute non-actionable o
pinions. See, e.g., Underwager v. Channel 9
Australia, 69 F.3d 361, 367 (9th Cir. 1995) (statem
ent that plaintiff was “lying” about his
qualifications); Obsidian Finance Group, LLC v. Cox
, 740 F.3d 1284, 1293-94 (9th Cir. 2014)
(statements accusing plaintiff of “fraud” and “dece
it on the government”); Doctor’s Data, Inc. v.
Barrett, 170 F. Supp. 3d 1087, 1123-24 (N.D. Ill. 2
016) (statements that plaintiff’s scientific
report was misleading, its test employed a “fraud,”
and its lab was “shady”); Spelson v. CBS,
Inc., 581 F. Supp. 1195, 1203-05 (N.D. Ill. 1984),
aff’d, 757 F.2d 1291 (7th Cir. 1985)
(statements describing medical practitioners as “ca
ncer con-artists,” “cancer quacks,” and
“unscrupulous charlatans” who commit “fraud” and p
rovide “phony” medicine); Colodny v.
Iverson, Yoakum, Papiano & Hatch, 936 F. Supp. 917,
923-25 (M.D. Fla. 1996) (description of
plaintiff as a “fraud”); Gill v. Delaware Park, LLC
, 294 F. Supp. 2d 638, 647 (D. Del. 2003)
(accusation that plaintiff was a “liar,” which the
court deemed a non-actionable “epithet”); USA
Technologies, Inc. v. Doe, 713 F. Supp. 2d 901, 908
-09 (N.D. Cal. 2010) (statement that plaintiff
engaged in “legalized highway robbery” and was a “k
nown liar”); Rizzuto v. Nexxus Products
Co., 641 F. Supp. 473, 481-82 (S.D.N.Y. 1986) (adve
rtisements attacking competitor by using
phrases such as “unscrupulous sales people lying,”
“lying salesperson,” “rip you off, ” and
“don’t be conned”); Boese v. Paramount Pictures Cor
p., 952 F. Supp. 550, 554-57 (N.D. Ill.
1996) (statement that “[e]verybody lied, all the wa
y down the line, and that came back to haunt
them”); Thomas v. Los Angeles Times Communications,
LLC, 189 F. Supp. 2d 1005, 1015-17
(C.D. Cal. 2002) (statement that plaintiff misrepr
esented actions during World War II and taught
a “sham” course; motion to strike under California
anti-SLAPP statute granted); Faltas v. State
Newspaper, 928 F. Supp. 637, 647-49, aff’d, 155 F.3
d 557 (4th Cir. 1998) (statements that
plaintiff would “lie to suit her agenda” and would
“present lies as truth”). These cases are
consistent with the broader principle that “[t]he l
aw provides no redress for harsh name-calling.”
Flowers v. Carville, 310 F.3d 1118, 1127 (9th Cir.
2002).

tl;dr "Scam" is an opinion; there’s nothing "borderline" about it.

Bruce C. says:

Yet another lawsuit from ...

The Try Your Luck school of “throw the whole bowl of pasta against the wall and see what sticks”…It’s right up there with the EULAs and ToS where they put every possible contingency into the “agreement” regardless of whether it’s legally enforceable or not, just so they can catch anyone who’s ignorant or lazy enough to accept the consequences.

Anonymous Coward says:

Re: Re:

“Truth is not a defense to defamation”

What sort of pretzel logic do these countries contort themselves into in order to end up at such a conclusion?

The emperor has no cloths is an accurate statement when the emperor is proudly parading naked in public but you had better not point out the obvious in fear of retribution .. what a wonderful place to live – if you consider that living.

Roger Strong (profile) says:

Re: Re: Re:

I’m not a lawyer, but as I understand it…

Suppose you make a true claim – in America – that "Bob is a bed wetter." You could still be successfully sued. For "Public Disclosure of Private Facts", not defamation. Or suppose Bob is taking too much aspirin. You make the technically true claim that Bob is abusing drugs. In some US states you could be sued for ‘False Light." In both cases you’ve made a true statement, but it’ll still cost you. There are other examples.

It’s not that those other countries have "pretzel logic" any more than the US. It’s that their legal systems evolved differently and it’s hard to make a direct comparison. They may have other protections that the US does not.

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