Court orders can be a helpful tool to get negative content removed from the internet. But they aren’t foolproof.
Here at Minc Law, we’ve worked with many different platforms and know the limitations of court orders. Fortunately, there are a few ways you can increase your chances of removing content with a court order:
- Make sure you sue the right person – the person who posted the content;
- Try to identify the poster’s legitimate contact information;
- State in the order that the defendant was served and lost on the merits; and
- Request injunctive relief authorizing the removal of the content.
In this article, we’ll explain how court orders can be used to remove content, who has to follow court orders, and 8 tips to improve your chances of successfully obtaining a court order. We’ll also discuss alternatives to dealing with an uncooperative defendant.
Let’s start with an explanation of court orders – and how they can be used to get negative content removed from the internet.
- Court Order Definition: What Does a Court Order Actually Do?
- How to Enforce a Court Order
- Tips For How to Obtain a Court Order to Remove Online Content
- The Drawbacks of Using a Court Order to Remove Online Content
- What Are Some Alternatives to Court Orders?
- Court Orders Can Lead to Content Removal When Pursued Strategically
Court Order Definition: What Does a Court Order Actually Do?
Court orders direct a defendant to either take an action or refrain from performing a particular action. If you’re looking to get content removed from the internet, you may need to obtain a court order.
Once you get an order requiring a defendant to remove specific content, you can submit the order to the defendant, putting them on notice that they must remove the negative content. If they don’t follow the court order, they may be in contempt of court.
It’s important to note that a court order isn’t binding on third parties, only the plaintiffs or defendants in a case.
Section 230 of the Communications Decency Act provides online platforms with immunity for content posted on their site. The law can only impose liability on publishers and creators of the content, so you have no recourse with popular platforms like Yelp, Facebook, Google Reviews, Instagram, Healthgrades, etc.
For more information about suing platforms, check out Minc law attorney, Dan Powell’s article, Can I Sue Google?.
This doesn’t mean that all online platforms refuse to cooperate with court orders. Some online platforms voluntarily follow court orders directed at a defendant who used their platform.
How to Enforce a Court Order
Assuming you’re successful in obtaining a court order (congratulations!) following up with the defendant is the next step. As long as the defendant can edit or delete the content from the platform, they are required to remove it. It’s that simple.
If a defendant refuses to follow a court order and doesn’t remove the content, they can be held in contempt of court. Contempt of court can possibly lead to jail time for a defendant – a pretty powerful motivator.
Court Order Fact: Court orders can broken down into four fundamental types: (1) Stipulated-an order where two parties consent; (2) Default-an order issued when the defendant doesn’t show up; (3) Dispositive Motions-orders won off motions like summary judgment; and (4) Injunctions-orders won by temporary and preliminary injunctions for expedited relief.
Tips For How to Obtain a Court Order to Remove Online Content
Like most legal matters, there are problems that may arise in the course of obtaining a court order. But, there are ways you can increase your chances of getting content removed with an order.
Here are 8 helpful tips for obtaining a court order to get content removed from the internet:
- Make sure that you sue the right person! Remember you must sue the person who posted the content, not the platform where the content was posted.
- Leave a comment on the offending post (if possible) referencing the legal action, case number, and attorney contact info.
- Put in some time and effort to identify the poster’s legitimate contact information. It’s important to show that you were diligent in your search and made efforts to provide the poster with due process.
- When requesting your order, ask the court to recite in the order that the defendant was given notice, served, lost on the merits, or at the very least, had the opportunity to respond and failed to do so.
- Request injunctive relief authorizing the removal of the content
- Ensure the court order contains a reference to each offending URL. Include language authorizing the removal of the same content if it’s re-posted elsewhere.
- If the defendant is uncooperative, ask the court for authorization to request removal on behalf of the defendant. Include a provision that allows the plaintiff to request online content removal from search engines.
- Third parties often voluntarily follow court orders that evidence success on the merits, fairness, and fundamental due process.
The Drawbacks of Using a Court Order to Remove Online Content
Court orders have limitations. In fact, most court orders are limited by a combination of:
- Existing Law;
- Amount of control the online platform exercises;
- Clauses contained within the platform’s terms and conditions.
Let’s explain each limitation in more detail.
Because you can only sue the person who posted the content, it’s important to know the poster’s identity. Unfortunately, many defendants post negative content anonymously or under a pseudonym. This creates an extra barrier to obtaining a court order.
There are several things you can do to identify an anonymous poster – and you should take the time to do this before seeking a court order.
Even if you only have an email address for the defendant, that may be enough to uncover their true identity.
Court Order Tip: Google typically wants to see five fundamental elements in court orders to remove negative content: (1) a defined scope of the content; (2) proper notice to the defendant; (3) that the content is actually defamatory or illegal; (4) identification of the author; and (5) miscellaneous information.
Online Platform Control
The amount of control a defendant has over the content they’ve posted on a website varies from platform to platform. Some platforms take “ownership” of content once posted, meaning the defendant no longer has the power to edit or delete the content. Some review sites, in particular, don’t permit posters to change their review after submission.
One review site, Ripoff Report, claims their terms give them total control over the content posted on their website. Even if there’s a court order declaring the content defamatory, they can decide to keep the content up.
They’ve even turned down requests from the original poster to remove content. They’ve defended their position saying that they don’t “want big companies to bully individuals into asking us to remove their truthful reports…to prevent this, we simply will not agree to remove reports, ever.”
Other times, a defendant may have lost their login credentials, passed away, or left the country. In these cases, relying on the defendant to remove content may prove impractical (or altogether impossible).
Terms and Conditions
Platforms can also limit liability in their Terms and Conditions. Whether you realize it or not, virtually every platform has a Terms and Conditions Agreement that site users accept to use the site. Even run-of-the-mill Terms and Conditions agreements include clauses that limit a plaintiff’s ability to sue the platform.
Let’s take Healthgrades’ User Agreement, for instance. Like most online Terms and Conditions, you agree to Healthgrades’ User Agreement “by accessing, using or browsing [the] site or any site materials.” This means both plaintiffs and defendants are bound by the Agreement.
Here are a few relevant clauses in the Healthgrades User Agreement that could limit the effectiveness of a court order:
- Content Accuracy: “[N]either we nor our Affiliates are responsible for…the accuracy of the information contained on this Site.”
- Content Screening: “[W]e are not responsible for screening, policing, editing or monitoring this Site.”
- Full Discretion to Remove: “If it comes to our attention, we discover, or we are notified of an allegation that…a Submission contains any Proscribed Materials, then we may, but have no obligation to, investigate the allegation and determine in our sole discretion whether to remove or request the removal of the same from this Site.”
In plain language, the Healthgrades User Agreement disclaims any liability on behalf of the platform. They also make it clear that the removal of content is based on their discretion.
These three limiting factors mean court orders are not always a surefire way to get online content removed. If you find yourself in this position, however, you may still have other options.
Fake Online Review Tip: There are four primary ways to spot a fake online review: (1) compare the username and complaints against business records; (2) research the reviewer’s account activity; (3) analyze the language of the review; and (4) examine the timing of the reviews.
What Are Some Alternatives to Court Orders?
1. Work With the Platform Directly
If you’re faced with an uncooperative defendant or someone who doesn’t have the ability to remove negative content, you can still work with the platform that hosted the content.
Some platforms like Blogger, WordPress, Facebook, YouTube, and Google, voluntarily cooperate with court orders directed at its users. Many of their own policies prohibit users from posting content that is libelous, illegal, or infringes on the rights of others. They typically accept court orders as evidence that a user has violated their Terms and Conditions and work with a plaintiff to see that the content is removed.
2. Work With the Domain Name Registrar
For instance, if John Smith gets divorced and his ex-wife buys the domain <johnsmith.com> to write defamatory and unflattering things, John Smith can likely get the site removed.
Some defamers take domain name abuses a step further and try to “sell back” the domain name to the victim – as a way to make a quick profit. This is a surprisingly common form of online extortion.
If this happens to you, you can get a court order that requires the defendant to transfer the website to you. Then you can delete the content and prevent any transfer of the site to another third party. Court orders that address this type of legal issue can be submitted directly to the domain registrar (e.g. GoDaddy, NameCheap, Bluehost).
Generally speaking, registrar companies are easy to work with and tend to cooperate with court orders.
It’s important to protect yourself from harmful sub-domains as well. For instance, the ex-Mrs. Smith may post negative content to <johnsmith.com> and to a subdomain like <wordpress.johnsmith.com>. Because of this, it’s wise to ensure court orders address content posted to both top-level and sub-domains.
3. De-index Content From Internet Search Results
De-indexing is not quite the same as content removal. The negative content will still appear on the website where it was originally posted but won’t appear in search results. For many clients, this result is almost as good as removal – because people searching for your name won’t see the negative content in search results.
When a search result is de-indexed pursuant to a court order, there’s usually a legal notice posted about the bottom of the search results page. While users can click on the link to get more information (like the name of your attorney) search engines won’t identify you personally. Only the most curious of onlookers will go through the trouble of clicking on links that don’t mention you – and they won’t find anything more than a link to a court order.
Court Orders Can Lead to Content Removal When Pursued Strategically
Court orders are useful tools in getting negative and defamatory online content removed. The posters of negative content must follow court orders or face being held in contempt. Even in trickier situations, when you run into an uncooperative defendant or platform, alternative methods exist to get the content removed.
If you’d like to find out more about content removal, check out some of our other articles on the subject. Once you get familiar with the content removal process, reach out to one of the experienced content removal attorneys at Minc Law. We offer free, no-obligation consultations to help determine the best course of action based on your specific needs.