Yesterday we told you about Dr. Gordon Austin, a former dentist who is suing to unmask an anonymous YouTube user for posting a 2009 news report about allegations against Austin. We’ve since had the chance to communicate with the YouTuber via email to understand why they posted the clip in the first place and why, nearly seven years later, they are still fighting to keep it online.
For those coming to the story late, Dr. Austin was indicted in 2008 for allegedly assaulting some of his patients by striking them with a dental tool while undergoing dental procedures. The doctor eventually ended up pleading guilty to six counts of misdemeanor theft for submitting claims to the Georgia Medicaid program for teeth extractions he did not perform.
According to the state Board of Dentistry, the guilty pleas were given in exchange for prosecutors not pursuing the other indictments against Dr. Austin, who was never tried or convicted of any of the assault allegations. The deal also required the doctor to cease practicing oral surgery and dentistry in the state for a period of ten years. The Board subsequently revoked his license.
Which brings us to the video, a combination of two Fox 5 Atlanta stories about the doctor from 2009, featuring interviews with people who had accused the doctor of hurting them:
“The main reason I posted the video onto YouTube was to make sure what happened regarding Dr. Gordon Austin wouldn’t simply fade away,” Defendant Doe, who uploaded the clips to the streaming site shortly after they originally aired, told Consumerist.
When the video was posted, Dr. Austin had not yet reached a plea deal with the state.
Doe tells Consumerist that they felt like the doctor appeared “unrepentant” at the time, noting that Austin “blamed ‘the media’ in interviews instead of taking responsibility. I did not want anyone to ever forget what this man has done.”
Though most people on YouTube use some sort of nickname or alias, Doe knew the video could have been posted using their real name, but deliberately chose to upload the clip under a pseudonym.
“I knew it would be better to post the video anonymously,” explains Doe, pointing to people close to the story who “suffered greatly as a result of revealing who they were,” like the former dental assistant featured in the video who says she was told her “career was over” after she went public about the assault allegations.
In Aug. 2009, Dr. Austin pleaded guilty to the misdemeanor theft charges and closed his practice. According to his LinkedIn page, he has been retired since 2010.
For around six years, from when the video was first posted until Nov. 2015, Doe claims to have heard nothing from the doctor or any of his attorneys about the clip, which remained unchallenged and only viewed sparingly.
“At no point during all these years did anyone associated with the dentist even ask that the video be removed,” writes Doe, who says they took efforts to avoid editorializing even in the description of the video. Doe even updated the text after its initial posting to reflect the latest news about the doctor.
“I was very careful not to post anything that wasn’t already supported by the news and by the Carroll County Grand Jury,” explains the YouTuber.
So when Doe got wind of the lawsuit — after Dr. Austin subpoenaed Google to try to unmask Doe — they say they were surprised that anyone was trying to make a defamation claim over a video that was posted six years earlier.
“Even though I am not a lawyer, when I learned that there was a lawsuit, even I was well aware the statute of limitations had passed long ago,” writes Doe.
In both Georgia, where the lawsuit was filed, and California, where Austin’s lawyers served Google with a subpoena, the statute of limitations on libel is only one year. The lawsuit was brought in Aug. 2015.
But even though Doe was firm in the belief that Dr. Austin had no legal leg to stand on regarding his defamation claim, they still need a lawyer willing to take up their case.
“I was very fortunate that there are people like attorney Paul Alan Levy and organizations like Public Citizen who stand up for those who do not have close political connections like Gordon Austin,” writes Doe.
All these years later, Doe could have just taken the clip down or had their identity revealed to Dr. Austin, but they believe it’s a fight worth putting up, and that their story highlights the need for legislation that explicitly shields Internet users from legally tenuous defamation claims that are intended to chill free expression.
“It’s crucial that states implement laws to protect free speech for those who do not have the endless resources to fight baseless lawsuits from plaintiffs that attempt to suppress public information and hope that it will be scrubbed clean from the internet and people will simply forget the past,” Doe tells Consumerist.
The battle over this relatively ancient YouTube video almost came to an abrupt end yesterday. Around the same time that our story was posted on Jan. 19, YouTube pulled Doe’s clip, not for a copyright claim, but because it had been deemed to be a “violation of YouTube’s policy against spam, scams, and commercially deceptive content.”
We don’t know who reported this video, or why YouTube removed a clip that clearly doesn’t fit into the categories of “scam,” “spam,” or “commercially deceptive.” We asked both YouTube and Google for a response, but received no explanation. We also sent multiple requests for comment to Dr. Austin’s attorney and have yet to hear back.
However, Doe was able to successfully appeal this decision and the video was up again hours after it was removed. Google will only confirm that the video has been restored, but refuses to explain its process for determining when a video violates spam/scam/deceptive content standards.