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Hospitals and Anonymous Blogging: An Update of the Paris Regional Medical Center Lawsuit

By Bob Coffield

Just pick up the latest news from Greg Piche of the Holland & Hart Healthcare Law Blog about the pending libel lawsuit against an anonymous blogger filed by Paris Regional Medical Center, a subsidiary of Essent. For some background on the case check out Jeff Drummond's past post Hospital Sues Blogger.

The libel lawsuit filed last year by Paris Regional Medical Center seeks the unmasking of an anonymous blogger and nine other anonymous contributors or commentators on his/her blog.

The hospital sought the identity of the anonymous bloggers from Suddenlink who balked at disclosing the identity of the anonymous blogger until he/she was given notice and an opportunity to object. As a result the anonymous blogger appeared through an attorney and objected which were rejected by the trial court.

However, on appeal to the Court of Appeals for the Sixth Appellate District of Texas at Texarkana, In re: Does 1-10, No. 06-07-00123-CV (Dec 12, 2007) followed the standard set out in Doe. V. Cahill, 884 A 2d 451 (De. 2005), granted the writ of mandamus and ordered the trial court to vacate its order requiring Suddenlink to disclose the name and address of the anonymous blogger. Basically, the court sustained the anonymous bloggers First Amendment rights of free speech until such time as the hopsital can show in a hearing at the trial court level that it has actually been damaged by the content of the blog.

The court analyzed the situation as follows:

The cases that have decided this issue range from placing an extremely light burden (indeed, virtually no burden at all) on the plaintiff, to requiring the plaintiff to tender proof of its allegations that would survive a summary judgment, or even more stringent requirements. At least one case has essentially concluded that the mere allegation of libel is sufficient. Alvis Coatings, Inc. v. John Does One Through Ten, No. 3:04CV374-H, 2004 U.S. Dist. LEXIS 30099 (W.D.N.C. Dec. 2, 2004). Other cases have articulated requirements that are so weak as to essentially require no more than allegations made in good faith (or not in bad faith), with some evidence to support the allegations. See Polito, 2004 Pa. Dist. & Cnty. Dec. LEXIS 340.

We cannot agree that either of these formulations is sufficient to survive any form of constitutional balancing. Thus, the question becomes the degree of actual proof that must be provided before the balance tips in favor of piercing the constitutional shield and disclosing the identity of the anonymous blogger.

We find ourselves more in alignment with the formulations set out in Cahill, 884 A.2d at 458-61. See extensive discussion about the application of this standard in Best W. Int'l, 2006 WL 2091695. The court in Cahill described the test as: "[B]efore a defamation plaintiff can obtain the identity of an anonymous defendant through the compulsory discovery process he must support his defamation claim with facts sufficient to defeat a summary judgment motion." Cahill, 884 A.2d at 460. This standard does not require a plaintiff to prove its case as a matter of undisputed fact, but instead to produce evidence sufficient to create issues that would preclude summary judgment.

Full post as published by Health Care Law Blog on February 02, 2008 (boomark / email).