Defamation

by Tim Cushing


Filed Under:
defamation, douglas berger, florida, japan, opinion

Companies:
reddit



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.


Reader Comments

Subscribe: RSS

View by: Time | Thread


  • icon
    Mason Wheeler (profile), 10 Jan 2018 @ 9:58am

    Among other things, he's asking for:

    • First Name
    • Last Name
    • Email Address
    • Phone Number
    • Email notification address for follow up comments
    • Zip Code
    • Date of Birth
    • Gender
    • Location

    I wonder if he's aware that Reddit allows people to set up and use an account without providing any of the above? (Yes, including an email address.)

    reply to this | link to this | view in chronology ]

    • icon
      ForCom5 (profile), 10 Jan 2018 @ 4:12pm

      Re:

      I'm willing to bet this was just some thrown together SLAPP lawsuit from anyone willing to take it. Palm Beach County is definitely full of empty suits (pun intended) who'd be more than willing to take a case. Probably won't work considering the anti-SLAPP law that passed a bit ago.

      reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 10 Jan 2018 @ 11:53am

    Prenda Law would like to take this case Mr Berger. Also, Ms Streisand says hello.

    reply to this | link to this | view in chronology ]

  • identicon
    Steve, 10 Jan 2018 @ 12:02pm

    "takes advantage of patients [opinion]
    scams patients [borderline]"

    I guess I don't see the distinction.

    Also, if I say IN MY OPINION someone is negligent, does it convert a defamatory statement to an opinion?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Jan 2018 @ 12:12pm

      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.

      reply to this | link to this | view in chronology ]

    • icon
      crade (profile), 10 Jan 2018 @ 12:33pm

      Re:

      It completely changes what you are saying..

      If the person is not negligent, but you still think they are anyway, it also changes for statement from being untrue to true.

      reply to this | link to this | view in chronology ]

      • identicon
        Thad, 10 Jan 2018 @ 1:51pm

        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.

        reply to this | link to this | view in chronology ]

    • identicon
      Thad, 10 Jan 2018 @ 1:45pm

      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.

      reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 10 Jan 2018 @ 12:08pm

    People, who sue people... are the dumbest people in the world.

    If you hated reddit threads showing up when people searched for you, you're REALLY going to hate media coverage about the lawsuit & butthurt that drove it.

    If you thought your reputation took a hit before, wait till you see the self inflicted wound.

    reply to this | link to this | view in chronology ]

    • icon
      DannyB (profile), 10 Jan 2018 @ 1:26pm

      Re: People, who sue people... are the dumbest people in the world.

      No, maybe he just needs therapy.

      But from a therapist who won't sue him for criticizing online.

      reply to this | link to this | view in chronology ]

  • icon
    Roger Strong (profile), 10 Jan 2018 @ 12:50pm

    It appears none of this has worked. Dr. Berger -- living and working in Japan -- has filed a defamation suit in Florida.

    Blessed are they who can just read it and move on.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Jan 2018 @ 1:12pm

    Looks like we’ve found blues psych doc.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Jan 2018 @ 1:50am

      Re:

      You're assuming blue boy isn't narcissistic enough to seek professional help, even if said help turns out to be completely useless.

      reply to this | link to this | view in chronology ]

  • identicon
    Bruce C., 10 Jan 2018 @ 1:15pm

    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.

    reply to this | link to this | view in chronology ]

  • icon
    Avatar28 (profile), 10 Jan 2018 @ 1:32pm

    I see this going well

    Suing Redditors like this is probably about one step better than suing people on 4chan and it's likely to go down about as well.

    reply to this | link to this | view in chronology ]

  • identicon
    Dr. Douglas Berger, 10 Jan 2018 @ 5:15pm

    Stop It!!!

    Stop talking about me or I'll SUE YOU TOO, you big bully!
    I'm telling mom on you! You take this down you big meeny or else!

    reply to this | link to this | view in chronology ]

  • icon
    TokyoGaiben (profile), 10 Jan 2018 @ 6:03pm

    Truth is not a defense to defamation in Japan, and Japan does not have a discovery process like the U.S. It may be he's simply trying to get the names of the Redditors through the U.S. system and doesn't plan on pursuing the claim in Florida once he has that info, but use it to commence actions in Japan.

    reply to this | link to this | view in chronology ]

    • identicon
      Wendy Cockcroft, 11 Jan 2018 @ 7:08am

      Re:

      Assume that's true; what about jurisdiction? Reddit is based in America, isn't it?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Jan 2018 @ 8:47am

      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.

      reply to this | link to this | view in chronology ]

      • icon
        Roger Strong (profile), 11 Jan 2018 @ 11:11am

        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.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Jan 2018 @ 6:21pm

    If a psychiatrist doesn't have the mental strength to shrug off these sort of things, how do they have the mental strength to deal with other people's trauma?

    reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Use markdown for basic formatting. HTML is no longer supported.
  Save me a cookie
Follow Techdirt
Special Affiliate Offer
Anonymous number for texting and calling from Hushed. $25 lifetime membership, use code TECHDIRT25
Report this ad  |  Hide Techdirt ads
Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

This feature is only available to registered users. Register or sign in to use it.