A retired dentist in Georgia, who pleaded guilty in 2009 to filing Medicaid claims for procedures he didn’t actually perform, doesn’t want the world to see a nearly seven-year-old news report about allegations from patients that he physically assaulted them while in his office.
It’s a story that only registered as a minor blip on the news radar back when it happened, and thanks to poor archiving of the local media (and a press release from the attorney general that has vanished without explanation), it may have simply faded into vague “Wasn’t there a dentist who…?” memory.
But now that the doctor has sued an anonymous YouTuber — subpoenaing Google to try to reveal that user’s identity, drawing legal attention from a high-profile first amendment advocate — he and his previous actions are back in the critical spotlight.
[UPDATE: Around the time this story was originally posted, YouTube pulled the video in question, claiming it had been flagged as “spam,” a “scam” or “commercially deceptive.” However, following an appeal from the user — and, perhaps coincidentally, comment requests from the media — it has now been reinstated.]
In March 2008, Dr. Gordon Trent Austin of Carrollton, GA, was indicted on multiple counts of simple battery, two counts of aggravated assault, and one count of first degree cruelty to children.
Among the accusations included in those charges, some patients said they were struck in the face with a tool known as a dental elevator.
Police arrested Dr. Austin in April 2008. He was released on bond the same day, according to news reports from the time.
A trial was initially slated for Sept. 2009, but the doctor instead entered guilty pleas in August of that year to six counts of misdemeanor theft for submitting claims to the Georgia Medicaid program for teeth extractions he did not perform.
A press release sent out at the time — which has, in just the last week, been placed behind a password-protected page (much more on that later in the story) — makes no mention of the battery and assault indictments, but a look at records [PDF] obtained from the Georgia Board of Dentistry show that Dr. Austin’s deal with the state included an agreement by prosecutors to not pursue three indictments if he ceased practicing oral surgeries and dentistry for a period of 10 years:
In Dec. 2009, the Board revoked Dr. Austin’s license to practice dentistry in the state [PDF].
The New Lawsuit
Now, more than six years later, Dr. Austin is trying to sue an anonymous YouTube user for defamation. The YouTuber didn’t post their own video about the incident, but rather just reposted a two-part story run by the local Fox affiliate in Atlanta back in 2009:
This video, which was posted by the YouTuber in March 2009, includes patients’ stories about allegedly being struck by the doctor when they began to complain during dental procedures. The apparent goal, according to these patients, was to quiet them so that others could not hear them outside of the room.
[UPDATE: As noted above, some time between Jan. 18 and the morning of Jan. 19, 2016, YouTube removed the video from its service. The user immediately appealed, and YouTube subsequently reinstated the clip. We’ve reached out to Dr. Austin’s lawyers for comment. We’re also still awaiting an explanation from Google and YouTube as to how this video could have been considered — even briefly — a scam, spam, or commercially deceptive.]
In Aug. 2015, more than six years after the video was posted, Dr. Austin filed a complaint [PDF] in a Carroll County, GA, court. It accuses the anonymous defendant of defaming the doctor and his practice “via various false accusations and statements,” though the complaint does not specify which of the statements made in the video are problematic.
Dr. Austin subsequently subpoenaed YouTube’s parent company Google to get them to provide information that would help identify the actual defendant. Google then notified this still-anonymous user in Nov. 2015 that it intended to comply with the subpoena.
Then last week, representing the “Doe” defendant, Paul Alan Levy from Public Citizen and Phil Malone from Stanford University Law School, filed a motion [PDF] to quash that subpoena, arguing that Dr. Austin has provided no evidence that the anonymous user did anything defamatory by posting the YouTube clip, and that the doctor’s case can’t possibly succeed.
The motion takes issue with the complaint’s repeated references to unspecified “false” statements allegedly made in the video. It also asks why the Doe defendant is being accused of malicious intent against the doctor, saying that the lawsuit “never explains why an ordinary citizen would not be justified in accepting the word of the prosecution as well as Fox News in repeating the gist of the indictment and republishing the TV story.”
Where’s The Proof?
There is currently no national legal standard for when it’s legally okay to unmask an anonymous online user. However, many states follow the so-called “Dendrite standard,” referencing the 2001 New Jersey Superior Court ruling in Dendrite International, Inc. v. Doe No. 3.
As part of that case, a software company sought to compel Yahoo! to identify anonymous posters — represented by Levy in the appellate hearing — on a bulletin board run by the Internet giant. The appeals court not only upheld the lower court ruling that kept the commenters anonymous, but also created a five-point standard by which other courts could determine when it was appropriate to unmask an anonymous online user.
One of those requirements is that the plaintiff must “identify and set forth the exact statements purportedly made by each anonymous poster that plaintiff alleges constitutes actionable speech.”
Some states, like California, have adopted a more streamlined three-point standard, following the 2005 Delaware Supreme Court ruling in Doe v. Cahill. That case — also argued by Public Citizen’s Levy — involved the efforts of local politicians to compel Comcast to unmask a critical commenter. Like Dendrite, the Cahill standard requires the plaintiff to provide evidence to support their claim before being able to learn a user’s anonymity.
Beyond that, there is also the fact that the video was posted more than six years before the lawsuit was filed. The defendant argues that state law in both Georgia (where the complaint was filed) and California (where the subpoena was served) puts a one-year statutory limit on filing a libel claim. Similarly, argues the motion, Dr. Austin’s claim of tortious interference must fail because of Georgia’s four-year statutory limit.
Plead Guilty: Password Required?
In researching this case, we noticed something odd. A simple Google search for Dr. Austin turns up the YouTube video in question, but it also turns up an Aug. 2009 press release from the Georgia Attorney General’s office. Or rather, it turns up a link to that press release.
When we clicked on the link, it didn’t take us to the AG’s statement on how Dr. Austin had agreed to plead guilty to the misdemeanor theft charges, but instead to this password-protected page:
Thinking that perhaps the AG’s website had password protection on older releases, we looked through the online archive and found similar public statements going back to 1997, all of which appear to be publicly accessible.
So we went directly to the 2009 archive, thinking perhaps there was a problem with the URL. Interestingly, while there are dozens of other releases from that year available for perusal, the Aug. 6, 2009 notice about Dr. Austin is not included:
In the motion to quash, it references the same URL we had discovered but there is no mention of it being behind a password. So we asked Doe attorney Levy if he’d encountered this password requirement, and subsequently learned that someone on his team had been able to access the document without being asked for a login on Jan 7, 2016 — a week before we tried.
So when was this pulled from public view? A look at the URL on Google Web Cache has it publicly available as recently as Jan. 12:
We have asked both the office of Georgia AG Sam Olens and Dr. Austin’s attorneys to comment on why this particular press release is no longer public, but have yet to receive any reply from either.
[UPDATE: After posting this story, a rep for the Georgia AG’s office tells Consumerist that he is looking into the matter.]
Stirring Up The Past
When it comes to Dr. Austin, it’s not just the 2009 press release that is no longer available. We came across a number of links to stories from 2008 and 2009 about the doctor’s alleged wrongdoings, but almost all of them have been lost to time.
In some cases, it’s because the websites for the local TV stations in Georgia fail to maintain an archive more robust than a few weeks or months. In others, it’s because websites that once hosted these stories have been heavily redesigned or reformatted in the years since.
For example, we know that the Atlanta Journal-Constitution wrote at least one story on Dr. Austin in 2008, but that story is not available on the newspaper’s website because any articles earlier than 2009 are not currently maintained on AJC.com.
So while you can still find the story by requesting a physical copy, a search for Gordon Austin on the site turns up only articles from 2011 and 2012 about his involvement in the region’s political sphere, or a more recent letter to the editor, all unrelated to his past behavior.
The doc has also sent out press releases of his own on things like the need for more focus on oral health.
There was also that press release from April 2015 about Dr. Austin receiving the “Best of Carrollton” Award in the Dental Surgeon category from something called the “Carrollton Award Program.”
The award claims to be an annual program “honoring the achievements and accomplishments of local businesses throughout the Carrollton area,” but we could only find one other company that ever received this honor.
What we did find was that “AwardSystem.org,” the website mentioned in the press releases is also mentioned in another public statement — from the Better Business Bureau, which called it “a vanity award scheme where businesses are not winning based on merit, but for the sole intent of purchasing the plaque or certificate for an inflated price.”