Appellate court lifts injunction against website owner in defamation case

Pennsylvania appellate court reverses trial court’s determination that former patient agreed to never again mention doctors on gripe site.

Nevyas v. Morgan, — A.2d —-, 2007 WL 704998 (Pa.Super. March 9, 2007)[Download opinion.]

A former patient unhappy with the LASIK surgery he received started a website to warn others of the procedure’s possible dangers. The website contained allegedly defamatory statements about the LASIK doctors who performed his procedure.

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An attorney for the doctors sent a cease and desist letter to the patient, threatening to file a lawsuit against him if he failed to remove the content about the doctors. The patient responded with his own letter, agreeing to “conform to [the] request insofar as to remove any stated libelous reference to the [doctors] and their practice only.” The patient went on to state that he would not remove the site in its entirety, and would continue to publish “within the legal guidelines as allowed by . . . the First Amendment.”

The patient quickly lived up to his promise. He replaced the site with an earlier version that made no reference to the doctors at all. Nonetheless, a few days after that, the hosting provider removed the site at the doctors’ request.

Understandably perturbed by the deletion of his website, the patient got a new web host and reposted the version of the site containing the references to the doctors. A few months later, the doctors filed suit. As one would expect, the doctors sued for defamation, but they also sued for breach of contract and sought specific performance. They argued that by posting the earlier version of the site (which made no mention of the doctors) in response to the cease and desist letter, the patient entered an agreement to never again mention the doctors in any manner, whether defamatory or not.

The case went to trial on the claim for specific performance, and the court ruled in the doctors’ favor. It found that the parties had entered into an agreement whereby in exchange for the doctors not filing a lawsuit against the patient, the patient would remove all defamatory statements about the doctors from the site and refrain from defaming them in the future. But the trial court’s order went a bit further — it forbade the patient from mentioning the doctors at all.

On appeal, the court vacated the lower court’s order and remanded for further proceedings. The appellate court held that the trial court was correct that the actions of the patient in response to the cease and desist letter constituted an agreement to remove the defamatory content already on the site . But the appellate court also held that the patient’s action of uploading the original website, which contained no reference to the doctors, did not constitute an agreement on his part to never again mention them. Rather, the court held, the letter the patient sent in response to the cease and desist letter reserved the right to continue to update the site to mention the doctors.

Because the trial court did not consider whether the statements on the later version of the website were the same as what the patient had agreed to remove (or were otherwise defamatory), the case was remanded for further proceedings to consider that question.