Oregon's first 'twibel' case moves ahead in courtroom
by:  Dr. Jerry Darm

Ruling on a portion of Oregon's first Twitter-based defamation lawsuit last week, a Multnomah County judge determined a Portland blogger was speaking in a public forum when she tweeted about the disciplinary record of Lake Oswego resident Dr. Jerry Darm.

Judge Jerome LaBarre's Sept. 30 decision could have a lasting impact on similar cases in Oregon. As the state's first so-called 'twibel' suit, the final ruling could set a precedent for how online remarks are treated in courtrooms in the future.

Lawsuit filed

Darm is suing Tiffany Craig for $1 million.

The case stems from commentary on Craig's Twitter feed, @tcraighenry, and her blog, Criminallyvulgar, where the 31-year-old IT worker writes about everything from current events, computer technology and gaming to the treatment of women in comics and her large collection of shoes.

Craig said she was watching TV in June when she saw Darm in a commercial.

Darm, whose business, Aesthetic Medicine, is in Tigard, advertises widely and appears regularly on local talk show segments to give advice on dealing with wrinkles and other skin and body issues, hair removal, leg veins and weight loss. After finding more videos promoting his services on the Internet, Craig said, she wondered how consumers might research medical professionals without relying on ads.

So, she looked up his medical license. Later, she posted on Twitter that 'a little bit of research into @drdarm revealed a pretty nasty complaint filed against him for attempting to trade treatment for sex in 2001.'

Craig was referring to a decade-old incident investigated by the Oregon Medical Board, which in 2001 reprimanded Darm for 'an inappropriate boundary violation' after a female patient complained he offered to accept intimate physical contact as payment for after-hours laser treatment of spider veins.

Darm also faced discipline in California and in Washington based on the situation in Oregon, where the state medical board required him to complete educational courses about doctor-patient boundaries and risk management and prohibited him from treating women without a chaperone present. Those restrictions were removed from Darm's license in 2009.

Anti-SLAPP law

Craig's attorney, Linda Williams, is attempting to get the defamation case dismissed under Oregon's anti-SLAPP law, which aims to prevent any 'strategic lawsuit against public participation' on the grounds of free speech. Under this law, a defendant can make a special motion to strike a claim when it arises from statements made in specific circumstances.

On Sept. 30, the judge considered the first of two prongs that must be argued before the suit could be tossed out of court: Whether Craig's comments occurred in a public forum and whether they were about matters of public interest.

Williams contended Twitter is indeed a public forum, as is 'any website that allows the posting of comments without a fee or some sort of admission process.'

As far as the public interest is concerned, she said, medical treatment is a topic of consumer concern, and Darm distributes advertisements featuring testimonials from clients.

'He has interjected - voluntarily, into the public discourse - the expectations people have as his patients,' she said. 'There is interest in what patients have to say about their experiences. You can't just have a public discourse about people who are happy with the treatment.'

Darm's attorney, Thomas McDermott, took issue with the idea that Craig was acting as a consumer watchdog of sorts.

'Ms. Craig has never been a patient,' McDermott said. 'She is not commenting about her experiences.

'This was an individualized attack on my client …. that came out of the blue.'

Hearing continues

The judge's conclusion that Craig's statements were not only of public interest but were made in a public forum could make it easier for lawyers to argue on behalf of bloggers and tweeters in the future, said attorney Dan Meek, who observed the Sept. 30 hearing.

The hearing will continue Oct. 20, when the burden shifts to Darm's attorney, Thomas McDermott, who must prove his client is likely to prevail in the suit based on a presentation of evidence and a discussion of defamation law.

In other words, round 2 will bring centuries-old libel law into the modern context of social media.

Darm did not appear with his attorney in court on Sept. 30.

Craig attended the hearing but declined to comment in any detail. Instead, she opted to sum up her feelings in a short tweet afterward: 'Not over just yet. But we won the first prong!'

Darm's attorney issues statement:

Dr. Darm's attorney, Thomas McDermott, issued a written statement on his client's behalf in response to a request for comment. He wrote:

'More than 10 years ago, my client Dr. Jerrold Darm, gave a patient a kiss and hug and was reprimanded by the Oregon Medical Board. He then successfully complied with all the requirements mandated by the Board while continuing to practice. The matter has been resolved for many years.

'A lawsuit was recently filed against a blogger who posted false and defamatory statements about my client more than 10 years after the incident. The blogger has never been a patient of my client and she has no personal knowledge of any of the events.

'The blogger has filed a motion to dismiss the lawsuit and the judge initially ruled that the subject matter qualifies as an issue of 'public interest' but he has yet to rule on the issue of the false and defamatory statements themselves. It would be inappropriate to comment further until the judge has made a final ruling on all pending issues.'

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