PR 101

Welcome back from Thanksgiving all. I hope all of you had a great holiday and much to be thankful for. For my non-US readers, I hope you also had a good week.

A plastic surgeon in Chicago is taking great umbrage at the anonymous negative reviews some of his patients have posted about him. Dr. Jay Pensler is so upset he is suing three of the patients who posted the anonymous comments.

How did Pensler find out who those anonymous patients/posters were? His attorney subpoenaed the sites where the comments were posted – Yelp and Citysearch. The attorney ultimately found the IP addresses to identify the computers seven reviewers used to make their comments.

Pensler is now suing three of them for making false and defamatory statements. He is asking for $100,000 each in damages.

I am not going to get into whether Pensler is a good or bad surgeon. I have no idea. If you want to read the negative comments and more about the case itself go here and here.

What I am concerned about is the fact that Pensler was able to find out who the reviewers were. According to Fox Chicago News, a Yelp spokeswoman said: “When a business owner attempts to stifle free speech with legal action, it is disappointing and damaging to consumers at large. At Yelp, we take every action to protect the privacy of our users; we must also comply with the law.”

Citysearch’s privacy policy states that its privacy policy allows the website to disclose a user’s information “in response to a subpoena or similar investigative demand.”

I should note federal law protects the websites. They cannot be held liable for third party postings over which they have no control.

While I can see the doctor’s point, I think websites giving up IP addresses and other information could have a chilling effect on honest discourse on the web. To me it is not a good idea.

One of the key parts of social media is public reviews. I rely on them for many things, as I suspect many others do. I want to know if a doctor, in the opinion of his patients is competent. I want to know how the service is at a particular restaurant. I also post comments. I don’t want worry about getting sued for stating my opinion.

When I was a reporter, I sometimes had to use anonymous sources. When writing on a sensitive topic, many people don’t want to be identified. They are afraid of retribution or harassment. That is not an uncommon reaction.

There are times when people should not remain anonymous. The argument many donors made for staying anonymous during the recent midterm elections was the fear of harassment. I disagree with that. When one is trying to influence an election, then your name should be made public.

I also think Pensler’s decision to sue is backfiring on him. The lawsuit has raised the issue’s profile. People who had never heard of Pensler now know some of his patients objected to his treatments.

Obviously there are some postings that cross the line. Falsely accusing someone of committing a crime would be an example. However, people should have the right to state their opinions without fear of retribution.

The people that posted about Dr. Pensler are what I would consider “civilians.” They are just ordinary people stating their opinion. They did not plan on being sued, nor should they be, for expressing their opinion.

I think that holds true for anyone who posts negative reviews of a hotel, a restaurant or a doctor. Why should they fear retribution? As an example, my son worked in restaurants while in high school and college. He would tell us what waiters and chefs would do if a customer were obnoxious or too demanding. As my son always said, “why would you knowingly anger someone who handles your food?”

Yet you might have had a bad experience. But this might be a place you go to often. You don’t want to have to worry an angry chef is going to over-season your food because you complained last time. So you post an anonymous comment.

The proper thing for the post’s subject is not to sue. What should be done is reply to the post. That person can also ask those who had good experiences to post what happened to hem. Let the readers decide. It’s that’s simple.

A couple of weeks ago my father-in-law’s car was rear-ended while he was sitting at a light. Thankfully, he was okay. The car was totaled.

A few days after the accident, the letters from lawyers started arriving. I think he got close to a dozen altogether. All offered to take his case so he could get “the money he deserved.” There were even a couple of phone calls from medical groups offering their services to treat his injuries.

That got me to thinking about all the solicitations I receive everyday by mail, email, and occasionally even by phone. None of them ever work with me – not even the charitable ones. It is simply waste of time and effort, I feel.

Given all of the new media outlets and other ways to effectively market I find is amazing that this kind of marketing still exists. Does anyone really hire a lawyer based on a one-page solicitation? For doctors to do it surprises me even more. Is the economy that bad that physicians actively have to recruit patients by checking accident reports? Does anyone give to a charity simply because they received a stack of return address labels?

My father-in-law, or the colonel as we call him, has a lawyer. As a retired Army officer he goes to the local Veterans Administration hospital for treatment. So he didn’t need either service. He simply filed all the solicitations in the circular file. I wonder if a cost/benefit analysis has been done on sending out those letters? It cannot be cost effective.

I say that because I don’t know anyone who has bought a product or used a service based on direct mail or email. If I need work on my house, I ask friends who they have used and what their experiences were. If I am going to stay in a hotel, I check the rating services and guest comments. When I donate to a charity, I check their Form 990s to see how much actually goes to help their cause. (If more than 10 percent goes to administration, I won’t give.) It just pays to do the homework.

This kind of pushy marketing has been going on for a long time. When I started out as a reporter 35-years-ago, I covered fatal accidents. In the small town where I started my career such news was important because usually everyone knew the victims. I can remember being in the police station reading the reports when lawyers would come in and ask to the see the same reports. I wanted information, they wanted business.

The police officers and I used to joke that some lawyers drove by accidents and threw their cards out as they went by. I never saw it personally, but nurses at the local hospital told me that some attorneys would show up in the emergency room to solicit business. Would you really hire anyone while laying on a gurney?

The people who still call to try and get my business are about a half step above those lawyers. What particularly frosts me is that we are both the state and federal do-not-call lists. The callers try to get around that by saying they are conducting a survey. The questions are so obviously geared toward getting us to buy something. I do two things then: I get the name and phone number of the company and then I hang up. I want the company information because I report them for violating the list.

The sad thing is, as I already said, there are much more effective, less intrusive ways to sell your service or product. These people just wake up and use them. I think they would be happy with the results.

When I was a newspaper reporter, there was axiom that went “never get into fight with man who buys ink by the tank car load.” The meaning was that is was almost impossible to win a fight with a newspaper because the paper’s editors controlled the means of communication. For every punch the newspaper’s opponent might throw, the newspaper could throw a 100.

Social media is assuming that position of power.. A western Massachusetts magazine editor found that out. Now social media might be a more democratic means of fighting as it can involve literally thousands people. Their only connection is the cause for which they are united. But, it doesn’t mean the punches are any softer.

The latest example of social media’s power erupted when Judith Griggs, editor of the Sunderland, Mass.– based Cook’s Source magazine, emailed a blogger that anything published on the Internet is not subject to copyright protection. The subsequent reaction from the people who use the Internet to what Griggs did, and the changes Cooks Source has made because of this brouhaha, show the power of social media.

This started when someone at Cooks Source lifted and rewrote from a food blog an article called “A Tale of Two Tarts” and published it in the magazine’s October issue. The blogger, Monica Gaudio, saw the article and asked for an apology. She also asked that a $130 donation to the Columbia School of Journalism be made.

Griggs’ replied thusly: “I have been doing this for 3 decades…I do know about copyright laws. It was ‘my bad’ indeed, and, as the magazine is put together in long sessions, tired eyes and minds somethings forget to do these things.

“But honestly, Monica, the web is considered “public domain” and you should be happy we just didn’t “lift” your whole article and put someone else’s name on it! It happens a lot, clearly more than you are aware of, especially on college campuses, and the workplace. If you took offence and are unhappy, I am sorry, but you as a professional should know that the article we used written by you was in very bad need of editing, and is much better now than was originally.

“Now it will work well for your portfolio. For that reason, I have a bit of a difficult time with your requests for monetary gain, albeit for such a fine (and very wealthy!) institution. We put some time into rewrites, you should compensate me! I never charge young writers for advice or rewriting poorly written pieces, and have many who write for me… ALWAYS for free!”

That was a mistake on so many levels. One of primary mistake for Griggs is that Gaudio is very savvy social media user. She posted on the reply on LiveJournal. It went viral very quickly. The reaction was just as fast and it wasn’t kind.

Can you see the iceberg Griggs’ hit? Hundreds of comments were posted on the magazine’s Facebook page. They are still coming in – if you want to read them, go here.

This is how Cooks Source initially responded to the negative comments:

• “Apologies for the issues on the old page. Unfortunately there’s nothing we can do about hackers!” (My comment. This was not hacking. No one broke into the magazine’s site. This was simply people commenting on Facebook. That’s one of the central parts of social media.”
• “For those of you who wish to be negative. Please use our other group. For those who are here as readers welcome!”
• “There’s lots of people here that do not seem to understand a few basics yet they seem to all be experts in the print business.”
• “Any posts considered libelous will be removed. Thank you to Christian for his assistance on the page mechanics. We shall be temporarily adapting the wall. Apologies to our regular fans.”
• “I don’t know what some of you think you are going to achieve? We apologized, now go find a rabbit to catch or something”
• “Numerous derogatory posts have been removed and members banned and reported. Those people here to cause trouble are wasting their time. Don’t you think that jumping on a band wagon just makes you look lily-livered?”

Talk about not knowing anything about social media. Whoever wrote those posts poured gasoline on the fire. All those comments seem to have done is increase the number of anti-Cooks Source posts. As companies from United Airlines to Proctor & Gamble could tell the editors, you cannot win a fight with the Internet.

To their credit, Cooks Source now appears to be getting it. This was recently posted on their website:

“Last month an article, “American as Apple Pie — Isn’t,” was placed in error in Cooks Source, without the approval of the writer, Monica Gaudio. We sincerely wish to apologize to her for this error, it was an oversight of a small, overworked staff. We have made a donation at her request, to her chosen institution, the Columbia School of Journalism. In addition, a donation to the Western New England Food Bank, is being made in her name. It should be noted that Monica was given a clear credit for using her article within the publication, and has been paid in the way that she has requested to be paid.

“This issue has made certain changes here at Cooks Source. Starting with this month, we will now list all sources. Also we now request that all the articles and informational pieces will have been made with written consent of the writers, the book publishers and/or their agents or distributors, chefs and business owners. All submission authors and chefs and cooks will have emailed, and/or signed a release form for this material to Cooks Source and as such will have approved its final inclusion. Email submissions are considered consent, with a verbal/written follow-up.”

That’s a good apology. It shows that someone woke up to what was wrong and corrected the error. I would urge people to lay off Cooks Source now. They get it.

Of course, legally Griggs was way off base to begin with.

As Hollee Schwartz Temple, a faculty member at West Virginia University College of Law, wrote in her excellent blog: “It’s easy to copyright your work (applying a copyright symbol and date of first publication is a best practice), but if you want to sue for copyright infringement, you’ll need to register your work with the United States Copyright Office.

“It’s not OK to steal content, particularly without attribution! Images count, so be careful. (my emphasis)

“Works that have entered the “public domain” don’t qualify for copyright protection; most creative works enter the public domain because their copyrights expire.

“Not everything is subject to copyright. What’s not? Ideas, short phrases, and government works, for starters. There are also “fair use” exceptions.”

Of course, I have a feeling Griggs’ was not being malicious. She was just showing her ignorance of the law and of social media. Apparently the lesson has been learned.