Freedom of speech trumps over privacy concerns

Earlier this year, the United States Supreme Court agreed to review on certiorari the case of Sorell v. IMS. The case involves a clash of two constitutional rights: freedom of speech and privacy.

The law in question was enacted by Vermont’s legislature to protect doctors’ privacy. Federal regulations protect patients’ personal information, i.e., data that can point to a person’s identity. It mandates that this be removed before medical records may be sold to health information firms and other data collectors. But while patients’ identities are protected by these regulations, doctors are not. The Vermont statute gives doctors the option to not have their prescription records used by pharmaceuticals to tailorfit their marketing strategies according to the doctor’s preferences.

This prohibition, according to pharmaceutical companies, indirectly curtails the commercial speech of pharmaceuticals. They also argue that the conversations between pharmaceutical representatives and doctors involve not just a commercial transaction, but a wide range of interests, such as scientific and safety concerns. As such, this exchange of relevant information is likewise hampered.

The US Supreme Court has recently released its decision regarding the case, striking down the law as unconstitutional. The court used a heightened scrutiny against the law, because it is not a mere commercial speech regulation. It rejected the commercial speech doctrine because the law "does not simply have an effect on speech, but is directed at certain content and is aimed at particular speakers."

Commentators note that the ruling in this case could have far-reaching impact on how data in the US is collected, stored, shared and processed, as well as how government can regulate these activities. Some believe that because of this case, “clients, publishers and agencies are in a much better position today to oppose restrictions on marketing and marketing analytics when imposed by all governments, including states, the Congress, the FTC and the FDA.”

Ixara Maroto, 9th post