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By:  Daniel Powell, Attorney

When it comes to people forming immediate opinions of you, your business, services, or products, Google search results are king.

So what happens when someone takes it upon themselves to attack you or your business online by posting a defamatory or fake Google review or otherwise offensive content which is now appearing in your Google search results? Who can you actually sue? Can you sue Google?

If you have been the victim of fake reviews on Google My Business or Yelp, the subject of a false news article or blog, or the target of malicious statements on any of the shaming websites, then you know the most damaging blow comes when that negative content appears prominently in Google’s search results. Google might seem like the logical platform to hold liable and try to compel removal.

But the reality of today’s online legal landscape is that Google generally cannot be held liable for defamatory and most other objectionable content which appears in its search results. Google also cannot be forced to remove it from those search results.

Simply put, you can almost never sue Google unless one of the following exceptions applies:

Below, we walk through why you generally cannot sue Google, under what limited circumstances you can sue Google, who you can actually sue, and what options are available for quick and effective relief if you have been defamed online.

Are you being defamed online? Contact Minc Law today!

Google & Search Engines: The Problem & Background 

With over 3.5 billion searches conducted every single day, Google is by far the most popular search engine on the Internet. And, its growth is not slowing down.

Google’s search engine volume grows roughly 10% each year, and sees anywhere between 16% and 20% never before searched phrases each year. In comparison, Bing and Yahoo! account for 5% and 3% of search engine users globally.

But what exactly is an online search engine and how does it work? 

Internet Search Engine Definition

An online search engine is an interactive service enabling users to search the Internet for specified terms or images. The search engine subsequently returns web-pages generated by third-parties which contain content matching the searches. In doing so, an Internet search engine simply acts as an aggregator of third-party content.

Google and other Internet search engines have become an integral (and overall positive) tool for how we access and obtain information. Search results can dictate everything from where we eat and shop to purchasing decisions of all kinds.

On the flip-side, Google has become a favorite (and very effective) weapon for people engaging in more nefarious activities, such as:

  • Falsely reviewing businesses;
  • Posting intimate and embarrassing details about an ex-spouse or enemy;
  • Otherwise disseminating hateful attacks against innocent people.

When it comes to search engines, Google reigns supreme and it is not even close. Search Engine Optimization (SEO) firms are paid handsomely to generate positive Google search results for good reason. How you appear on Google is how you will appear online to the vast majority of people who seek to learn more about you, your background, and your offerings.

While positive search results can propel you forward, just a single negative result can destroy you and derail your business or career.

So what happens when a less-than-flattering newspaper article about you from 1995 shows up in Google’s search results?

Who can you sue? 

Probably not Google. Keep reading to find out why you generally cannot sue Google and who you should seek to hold liable instead.

Google Fact: Founded in 1998 by Larry Page and Sergey Brin, Google was at the forefront of the modern Internet technology era. In 1999, Page and Brin offered to sell Google to Excite.com for less than $1 million. Excite rejected Google’s offer, citing Page’s insistence on replacing all of Excite.com’s infrastructure with Google’s. Alphabet Inc., Google’s parent company, is now worth over $760 billion and rising.

The #1 Reason Why You Cannot Sue Google

The reason you generally cannot sue Google for defamation (and related causes of action) is because it is protected under the federally enacted Internet law known as Section 230 of Communications Decency Act (CDA).

But what is the CDA and why is Google protected by it? 

Below, we will take a deeper look.

The Communications Decency Act: A Brief History

Drafted in 1996, the Communications Decency Act is credited as the primary piece of federal legislation which enabled the Internet to blossom into what it is today. The CDA was drafted with two primary legislative goals:

  • Regulate obscenity and indecency on the Internet, and
  • Immunize Interactive Computer Services (ICSs) from legal liability for the actions of third-parties who use their services (Section 230).

Section 230 of the CDA has commonly been referred to as the “twenty-six words that created the Internet.”

Section 230 was drafted with platforms like modern-day search engines in mind. Congress sought to protect and immunize such platforms from legal liability for displaying content posted by third-parties.

Without that immunity, present day search engines and other online platforms (including social media and content sharing websites such as Facebook, Instagram, Twitter, Youtube, etc.) would be unable to facilitate the free flow of information which connects and benefits us all. This is because acting as that facilitator would expose those Interactive Computer Services to countless lawsuits.

But what exactly does it mean to be an Interactive Computer Service? 

Section 230 Explained

Section 230 is the governing provision for why you cannot sue Google or other Internet search engines for defamation and related causes of action arising out of objectionable content available to the entire world to see through a search for your name or your business. Section 230 reads:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

In layman’s terms, Section 230 shields an ICS like Google from legal liability for displaying content published by third-parties.

Interactive Computer Services (ICS) cover a wide array of online platforms, including:

  • Search engines;
  • Internet bulletin boards;
  • Online dating services;
  • Online review websites;
  • Archived posting services; and
  • Any type of website that collects text, photographs or videos generated by others.

When determining whether immunity under Section 230 applies, courts typically apply a three-pronged test. If all three prongs are satisfied, then immunity is absolute; and not simply as an affirmative defense, but an outright bar to suit.

  • The defendant must be a “provider or user” of an “interactive computer service”;
  • The cause of action asserted by the plaintiff must treat the defendant as the “publisher” of the objectionable content; and
  • The objectionable content must be “provided by another information content provider.”

For example, in the 2003 case of Carafano v. MetroSplash.com Inc., the U.S. Ninth Circuit ruled that a computer matchmaking service was not legally responsible for false content in a dating profile provided by a third-party posing as another person.

In the landmark case of Jones v. DirtyWorld Entertainment Recordings LLC, the 6th Circuit emphasized that Section 230 accomplishes three goals:

  1. Maintains the robust nature of internet communications;
  2. Protects against heckler’s veto; and
  3. Encourages ICSs to self-regulate.

Important to understand is that the protections and shields granted to Google under the Communications Decency Act (CDA) apply to all search engines (Bing, Yahoo!, DuckDuckGo, Ask.com).

So, what exactly does Google do? 

Google as an Interactive Computer Service (ICS)

Google aggregates and republishes third-party content. Third-party content is also commonly referred to, in the context of Section 230, as user-generated content (UGC). Google generally does not publish or even host original content. Instead, it provides indexes and links to web pages which do publish and host such content.

Under Section 230’s definition of ‘Interactive Computer Services’, U.S. courts have held that Google is in fact an interactive computer service because it provides access by multiple users to a computer server.

As a result, Google enjoys broad immunity from defamation claims and other related causes of action.

After all, the only reason a fake review, malicious online attack, or false news article shows up in Google’s search results is because it was first posted on another platform! Google was (and is) not the original content creator.

Can Google Snippets Be Defamatory?

Google Featured Snippet

Sometimes in Google’s automated aggregation, summarization, and display of information, it sometimes displays the same in a way that can be construed as offensive. For example, in the 2016 case of O’Kroley v. Fastcase, Inc., the plaintiff, Colin O’Kroley, alleged that Google’s snippet algorithm created a libelous search result through its implication that he had engaged in indecent acts with a minor.

O’Kroley argued that Google’s automatic summarizing of a non-defamatory article, created a new, defamatory article. This creation of a new, defamatory article would then make Google a content creator, and thus, unprotected under Section 230.

While Google did perform “some automated editorial acts on the content, such as removing spaces and altering font,” the Court held these were in line with traditional editorial roles,  “deciding whether to publish, withdraw, postpone or alter content.”

Because Google does not create or develop content, or exceed the scope of traditional editorial functions, it maintains immunity under Section 230.

Ultimately, Section 230 of the CDA grants Google and other Interactive Computer Services (ICS) unfettered discretion to determine “what” to remove and “when” to remove it.

Minc Law First Amendment Fact: Heckler’s veto refers to governmental suppression of speech due to the anticipatory (and sometimes violent) reactions by speech opponents.

So, what is the difference between an Interactive Computer Service (ICS) and a print publication (New York Times, National Geographic, etc…)? 

Interactive Computer Services v. Print Publications

Whether you can sue a content provider largely depends on the amount of control exercised in the creation and publication of the offensive content before it is published.

Because publications such as the New York Times and National Geographic retain and exercise complete editorial and creative control over the content that they publish before it is published, they can be held liable for damages.

On the other hand, the law (driven largely by a public policy to allow the free flow of information on the Internet) has decided that Interactive Computer Services cannot be held liable for damages because they typically do NOT make any editorial or creative contributions to the content. They merely distribute it. Yet Section 230 vitally allows an ICS to edit or remove any content published on its platform without losing that immunity.

In Zeran v. America Online, Inc. the United States Court of Appeals held that lawsuits “seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions – such as deciding whether to publish, withdraw, postpone or alter content – are barred.”

Well, surely there are exceptions to the rule, right? 

There are, but they are extremely limited in scope and application.

Below, we will take a look at the circumstances under which you CAN actually sue Google.

Under What Circumstances You Can Sue Google

Now that you know the core reasons why you cannot sue Google, let us take a look at several circumstances where you can.

While Section 230 of the Communications Decency Act is broad, it does not provide absolute immunity to all lawsuits. There are several key exceptions in which Google may be sued like any other person or entity. United States v. Google Inc., No. 3:12-cv-04177 (N.D. Cal. Nov. 16, 2012).

The key exceptions under which you can sue Google for defamation and other related causes of action include:

  • Where Google is the original content creator;
  • Copyright and trademark infringement;
  • Direct business dealings; or
  • Other limited exceptions to the Communications Decency Act apply.

Where Google is the Original Content Creator

The crux of Section 230 centers around whether an ICS is the “publisher” or “creator” of the harmful information at issue. So, what happens when Google actually creates and publishes content? 

In that scenario, Google will forfeit its immunity under the CDA and may be held liable for the content posted. The creation and publishing of content may also, in certain circumstances, include material alterations made to content by Google or another ICS.

For example, if in the exercise of a traditional editorial function, Google were to change or fabricate a material fact in an article, then it may forfeit its protection under Section 230.

However, just because Google has express authority to modify or remove content, that does not make it liable for defamatory posts it refuses to correct or remove. This extends even in situations where an ICS has an active and “even aggressive role in making available content prepared by others.” Blumenthal v. Drudge. 992 F. Supp. 44 (D.D.C. 1998).

Copyright & Trademark Infringement

Any ICS, including Google, may be sued in cases where it is a direct or contributory infringer and consequently liable for copyright, trademark, or other intellectual property infringement.

Copyright Infringement 

In the 2010 case of Viacom International Inc., v. YouTube, Inc., Viacom alleged YouTube had engaged in a “massive” copyright infringement campaign by enabling users to upload, browse, and watch tens of thousands of Viacom videos without permission. Google, YouTube’s parent company, subsequently filed a motion for summary judgment claiming protection under the Digital Millennium Copyright Act’s “safe harbor provisions.” Google’s motion was granted under safe harbor provision 512(c)(1)(A)(i), which reads:

…A service provider shall not be liable for monetary relief….for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider – (A)(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing…

That was not the end of it. In 2012, on appeal before the United States Court of Appeals for the Second Circuit, Viacom employee emails showing awareness of infringing activity surfaced. Summary judgment in Google’s favor was reversed on the grounds that a “…jury could find that the defendants not only were generally aware of, but welcomed, copyright-infringing material being placed on their website.” Another appeal was initiated in 2013, but the parties ultimately opted to settle.

Trademark Infringement 

In Rescuecom Corp. v. Google Inc., the Second Circuit ruled that Google’s AdWords and Keyword Suggestion Tool’s recommendation of Rescuecom’s trademark to a competitor for an AdWords purchase could constitute trademark infringement if Google’s use of its mark was a “use in commerce.”

While the Court did not find that Google’s use of Rescuecom’s trademark was a “use in commerce,” and debated the meaning thoroughly, it did:

  • Lay the framework that Google may be sued under the Lanham Act when
  • Google makes a non-permitted “use in commerce” of a person or entity’s trademark.

Direct Business Dealings

In cases where Google has direct business dealings with a person or entity and commits a contractual breach or tortious act, they may be sued.

Limited Exceptions to the CDA

There are very limited exceptions to the CDA whereby an ICS will forfeit its immunity under Section 230 and may be held liable for content posted to or aggregated by the ICS:

Most of these exceptions are narrow in scope and do not fit the fact pattern for the overwhelming majority of disputes which come to our attention.

So, who can I actually sue if I have been defamed online?

Who You Can Sue For Defamatory Online Content

When in doubt, sue the publisher directly.

Think back to those twenty-six words that paved the way for the present-day Internet (Section 230), “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

Whoever created the offensive content at issue is your primary target. Successfully suing the content creator is often the only means by which removal from websites and Internet search result indexes can be accomplished.

For example, if you are seeking the removal of a libelous Facebook post, sue the person who posted it, not Facebook. If you want to remove a short, 140 character tweet, sue the Twitter user behind it, not Twitter. And if your business wants to take down fake customer reviews, go after the actual author of reviews rather than the review site.

But ascertaining the identity of an online defamer is quite often not an easy or straight-forward process. Not everyone posts nasty and false attacks under their actual Facebook or Twitter accounts, or any easily identifiable moniker. Sometimes you have to use the legal process just to “unmask” and identify the anonymous attacker you need to sue.

Known v. Unknown (Anonymous) Defendants

When suing for defamatory online content, you will typically be faced with two types of defendants:

  • Known defendants, and
  • Unknown (anonymous) defendants.

Known defendants do not require the extra due diligence conducted by attorneys in order to unmask the defendant. This is because they are, well…already identifiable. Unknown defendants, on the other hand, are persons who are acting in a pseudo-anonymous or completely anonymous capacity and require identification. There actually is a way to sue an anonymous person before identifying them – by filing a John Doe lawsuit.

John Doe lawsuits enable plaintiffs to sue an anonymous person by naming them as a “John Doe” or (preferably if possible) by their Internet username. The plaintiff can then conduct discovery to obtain data points (IP addresses, email addresses, and other personal information) from the online platform displaying the objectionable content and ultimately identify the defendant.

Once you have identified the publisher of the offensive content in question, it can be important to revisit and re-analyze the questions of “where” and “when” you can sue.

Where Can I Sue For Online Defamation? 

Most lawyers recommend suing in the jurisdiction where the defendant is located, and that is almost always the safest play. But the defendant’s home jurisdiction is commonly not your only option. Sometimes it is not even a possible option when dealing with online defamation.

Sometimes you do not know who the defendant is or where he or she is located. Other times, even when the defendant’s identity and residence is known, suing in another jurisdiction is perfectly acceptable.

U.S. defamation case law has developed around the idea that a publisher of defamatory content can be subject to the jurisdiction of the courts in any jurisdiction:

  • Where the objectionable content was published,
  • Wherever a target audience of the publisher is located, and/or
  • Wherever the brunt of the harm was intended to be incurred.

Illustratively, if a man launches an online attack against a Texas business from his keyboard in California, with the intent to drive away Texas customers and cause harm in Texas, then that Californian has subjected himself to the jurisdiction of the Texas courts. If you pick a fight in Texas, you have to fight the fight in Texas.

When determining where you can sue for online defamation, assessing the proper jurisdiction is not the only “where” you need to consider. Depending on the facts of your case, you may prefer to file your case in either state or federal court.

Procedurally, federal courts typically are stricter and more demanding. Federal judges tend to impose tighter timelines on parties’ discovery efforts and required court appearances may be more frequent. A unanimous jury verdict is also required to “win” your case. On the other hand, in most state courts, juries decide civil cases by super-majority vote (usually 3/4 of the panel).

All online defamation cases are unique, so we recommend reaching out to an experienced internet defamation attorney to discuss the pros and cons of suing in a particular venue.

business-owners-guide-remove-reviews

When Can I & Should I Sue For Online Defamation? 

Two important variables in defamation lawsuits dictating when a plaintiff can and should sue are:

Statute of Limitations: The “Can”

A statute of limitations is a time-limiting mechanism, prescribing a set length of time you have to initiate a lawsuit. Should you fail to bring your lawsuit within a statute of limitations’ prescribed period, you might ultimately forfeit your right to bring a suit altogether.

Defamation statutes of limitations vary by state, but typically clock in at 1 year. A handful of states do allow for 2 and 3 year time-frames to initiate a claim, but they are in the clear minority.

Several circumstances which may allow you to file your lawsuit outside the statute of limitations include:

  • When the defendant published the content anonymously or pseudo-anonymously with an intent to fraudulently conceal identity, giving rise to an equitable estoppel argument.
  • The publication as a whole has been supplemented, updated, or materially altered within the limitations period.
  • You did not discover the content or did not discover the injury from the content, despite reasonable diligence, until a date that is within the applicable statute of limitations.

Be careful! Some states do not consider John Doe lawsuits (anonymous defendants) to be ‘placeholders’ which toll the statute of limitations. For example, in 2010, Justice Terrence O’Donnell of the Ohio Supreme Court stated, “To construe the rule to allow the use of placeholders for unidentified defendants would eliminate the statute of limitations for every cause of action.”

Website Data Retention Policies: The “When”

The ultimate source of identifying information is commonly NOT the content hosting website, but rather any Internet Service Provider (ISP) to which you are led by user data, specifically Internet Protocol (IP) address logs obtained from the website.

Be mindful that ISP data retention policies can be shockingly short. Some windows as short as 60 days. Whether it be 60 days, 6 months, or 6 years, you simply do not know what data retention policies to be concerned about until you begin peeling back the layers of the onion. This can take some time to do. So do not wait.

Regardless of the statute of limitations or any concerns over data retention policies, you should file your lawsuit as quickly as possible.

Even if you are located in a jurisdiction with a 2 or 3 year defamation statute, never rule out the possibility that your case may be transferred to a jurisdiction with a 1 year statute. This could be for reasons of which you are not yet aware. If you do not act swiftly, you could find yourself out of luck and without available recourse no matter how damaging and offensive the content may be.

Ideally, you should (1) file your lawsuit, (2) identify the defendant, and (3) name the defendant in that lawsuit within ONE year of the original publication date. This helps ensure you have preserved, and do not inadvertently waive any of your rights.

Google’s Court Order Removal Policy

Court ordered injunctions may be issued as mandatory injunctions ordering a person or entity to specifically do something. They may also be issued as prohibitory injunctions ordering a person or entity to not do something.

Court ordered content removals, even though issued against and directed at the publisher of the content, can in fact lead to the de-indexing of web-pages specified in the order by Google and the other search engines.

De-indexing a web page removes it from search results. Google uses what is colloquially known as a ‘spider’ to crawl each web page on the Internet. This “spider” gathers data which is then used to create its search results through a complicated algorithm even the higher-ups at Google would probably have trouble explaining. Think of de-indexing as bug spray. The web-page still exists, but Google’s spider does not detect it and does not place it in its index.

Unfortunately, Google’s honoring of court ordered content removals has steadily declined over the past five years and can be inconsistent at best. Removing online content from Google and internet search results is no longer a “guarantee.”

Some legal experts suspect it is due to increased content removal requests by authoritarian governments. Others speculate it is in response to unethical attorneys and reputation management agencies abusing the removal process for profit. Whatever the reason, Google now closely vets all court orders it receives and routinely declines to de-index when the court order raises any red flags.

Prior to Google’s court order crackdown, litigants could easily secure default judgments against online defendants (even anonymous defendants who had been ‘served’ by posting a notice in the local newspaper). This allowed them to remove offensive content without considerable hassle or expense. But a more stringent removal request process has been implemented. Now Google is highly skeptical of any judgments which are not issued on the merits and produced as a result of contested litigation in which a:

  • Defendant was identified, and
  • Actually served with all proper process.

In today’s stringent removal landscape, it is essential that you work with experienced internet defamation attorneys to make sure you check all the necessary boxes BEFORE securing a court ordered removal and presenting it to Google.

Non-Litigation Options For Removing Defamatory Content

A lawsuit to remove offensive and defamatory online content sometimes just is not right for you and your situation. Maybe your budget does not allow for the expense. Maybe the statute of limitations has long since passed with no available exceptions. Maybe the content in question is factual in nature and not actionable. Or maybe you are not looking for a fight and simply desire to suppress negative content in Internet search results.

There are a handful of reasons why litigating might not be the answer for you.

So, what non-litigation options for removal are available for you? 

Approaching Google or Content Hosting Website to Request De-Indexing

Depending on the content or web-page you want removed, simply asking Google to de-index is always an option. Unfortunately, requesting Google to de-index content is probably not an action you should exercise with much hope of success. Google’s default policy is to display any content which is returned by its search engine based on the keywords used in the search.

That is why you can easily look up pornography and other arguably obscene material through a simple Google search. Google also, as a matter of policy, will not act as a ‘referee’ in any private disputes, such as deciding whether a review is fake or a post is defamatory.

How Can Minc Law Help? 

At Minc Law, we have developed and successfully implemented a variety of effective strategies and non-litigation approaches to remove or de-index objectionable content from various online platforms. These include:

  • News organizations,
  • Social media websites,
  • Blogs,
  • Review websites,
  • Discussion forums, and
  • Bulletin boards.

Get in touch with us today to schedule your free, initial no-obligation consultation by calling us at (216) 373-7706, or by scheduling a meeting with us online.

Making an Editorial Request

Sometimes, simply reaching out to a newspaper, website, or platform to ask them to remove unwanted (or outdated) content can get the job done. But be aware that this may be met with staunch resistance. This is especially true with news organizations who view any degree of content removal as destruction of a historical record.

Unfortunately, most laypersons do not have much success engaging in this type of self-help on their own. You normally only get one shot at a removal request, so be sure to make the most persuasive case possible. Once a decision is made, it can be extremely difficult to get it reversed.

★★★★★
Ali Arko gets great results. She is persistent and will get the job done for you. She had a newspaper article removed after an ex employee made inappropriate allegations about me to the newspaper. The newspaper did not check any of the facts of the case. The newspaper went through 3 different editors, and Ali was able to talk to two of them and was able to get the false article removed. The google search of my name was hurting my business. Thank you Ali for your great work. I highly recommend her.

A. T.,Dec 9, 2019

If a website refuses to remove the content, it still might agree to de-index. Websites can fairly easily de-index their own web-pages by simply applying a no-index tag within the <head> of a desired page AND removing the page from their XML sitemap.

The next time Google crawls the website, the web-page with a no-index tag will be removed from search results.

Are you being defamed online? We will get it removed. Contact Minc Law today!

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