Just sue me

Sometime in the next few months, a surgeon will repair some torn cartilage in my knee. It’s a simple operation – or so I have been told by friends who have had it done – and won’t even require a general unaesthetic. I’ll just sit back, relax, and let the surgeon do some fancy arthroscopic magic.

With luck, a few days later I’ll be able to get into all those yoga positions I’ve been avoiding lately, and I’ll thank my doctor for a job well done.

But what if, during that first consultation, as the surgeon looked through my MRIs and the referral paperwork from my GP, he held out a contract and asked me to sign it. One that assigned him the rights to any comments I might make online about his work? Ridiculous, you might think – but it is really happening.

It’s euphemistically titled a ‘mutual privacy agreement’, but it’s really all about the doctor trying to have complete control over all aspects of patient outcome. It’s not enough that I leave his treatment rooms singing and dancing and hitting the yoga again. If I should log on somewhere – to a service like Yelp.com or Womow.com.au, places where individuals go to share their experiences, both positive and negative – and say something nasty about his behavior, or prices, or waiting room décor, the doctor contracts for the right to delete those comments.

It’s really a bit of a stand-over job because if I don’t sign the paper, and assign all rights to my comments about this doctor to him, he’ll apologize, show me to the door, and leave me looking for someone else to repair my knee.

This isn’t happening in Australia – yet. Right now, it’s just the sort of thing that appeals to medical professionals in the über-litigious United States. And it seems the idea hasn’t crossed over into the other professions, but you can easily imagine that solicitors will be all over this, followed by other professions. Pretty soon we won’t be able to share anything about what we think about anyone to anyone else.

This is a perfect world for someone who needs to live in the shadows, who delivers shonky service, someone who has a bad track record. Someone, in other words, that you wouldn’t want to do business with, much less have them take a scalpel to you. This perfect world for service providers is a living hell for everyday consumers.

This is what makes me think the entire concept of the ‘mutual privacy agreement’ hasn’t been thought through. Everyone who provides a service also consumes them. Do they want to go through the world blinded just so they can have the right to silence their clients? That wouldn’t simply be going backward, into a pre-connected era, that would be rolling back the clock all the way to before humans learned to talk. This is the reason we do talk – to share what we’ve learned with one another. If you start messing with that, you take an axe to the very thing that makes us human.

It’s the same temptation we face when we see a negative comment on a blog post we’ve written, or a video we’ve uploaded, or a tweet we’ve shared. Some people simply won’t like what we do, and they’ll have no trouble sharing their opinion with us. We can ignore it and move on, or we can shut it down, delete the comments, wipe out the threads, and sanitize the record. It’s tempting, but dangerous, because once you’ve started, where do you stop?

(Obviously, there are some things you do delete: abuse, vilification, threats, and pornography. Everything else should be carefully considered before it’s wiped away.)

Sharing is a risk. Yet the value in harnessing the knowledge and experience of countless others amplifies our own capability. I can learn from your experience, avoiding the bad and making a line straight to the good. The risk is that no one likes everything or everyone. That’s something everyone must learn for themselves. That’s not the end of the world – it goes with being a member of the human race. We’re a bit prickly, and that makes the ride rough from time to time.

How do we fight back, and nip this campaign in the bud? These agreements will become ever more irresistible to all sorts of businesses, particularly as more of us rely on online recommendation services to make our purchasing decisions. We can ‘Just Say No’, choosing to give our business only to those who are prepared to be open about their work. That becomes a virtuous circle because if those businesses do great work, and we can share that fact, people will hear about it, and vote with their wallets for businesses that aren’t afraid to let their clients share the good word.  

Mark Pesce is the co-inventor of the VRML, co-author of The Next Billion Seconds, and founder of Future St, a Sydney media and technology consultancy. He was formerly one of the judges on ABC’s The New Inventors.

Ed note: This was first published in Nett Magazine in August 2011.