Welcome to the new age of the Internet. Unbeknownst to many, an entire new industry has taken foothold online, which profits solely by spreading derogatory statements, malicious content, and other private information about people’s affairs.
Websites That Publish Defamatory Online Content
Websites like Thedirty.com, RipoffReport.com, Cheaterville.com, Scam.com, Jerk.com, PissedConsumer.com, and literally thousands of others like them are quickly establishing themselves as places people can go to gripe, smear, and publish negative and derogatory information about individuals and businesses alike.
Although many of these websites defend their enterprises under the First Amendment as “consumer advocacy” forums and places to expose those in our society who do not abide by our proverbial moral and social “codes” – make no mistake – these websites are fraught with abuse and are often used to spread false information and exploit unwary and innocent individuals and businesses.
These websites wield a huge amount of power. Information published on these sites will typically appear prominently on the first page of Google’s search engine results and is available for the entire world to see with only a few clicks of the mouse. Just as fortunes have been made by leveraging the power of search engines, if you or your business have the misfortune of being named on one of these sites, it can ruin and destroy your personal or your business’s reputation
Even worse is the seeming lack of recourse available to combat and take down content posted on these sites and the Internet in general. Once this content is published, many of these websites have policies preventing its removal by anyone, including the author, under any circumstance, regardless of the veracity of the content published or harm that it may be causing. Other times, sites will agree to remove content if a one-time or monthly fee is paid or an expensive arbitration service is used. These options understandably generate intense frustration and anger from victims who have been unfairly attacked on the pages of these nefarious enterprises
Fortunately, our nation’s laws and information providers are beginning catch up with the times and legal options are gradually becoming available to remove this type of unfair content from the Internet.
How We Got Here
To understand how to remove content from the Internet, it is important to understand how a federal law called the Communications Decency Act or the “CDA”, 47 U.S.C. § 230 protects these websites and allows them to operate as they do.
The CDA provides that when content is posted on an “interactive” website, which is most websites, the website in most cases cannot be held legally responsible for the content posted. Specifically, 47 U.S.C. § 230(c)(1) provides, “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.”
Because content posted to websites like TheDirty.com and RipoffReport.com is authored or submitted by users of the website and not by the site itself, these websites usually cannot be held legally responsible for the content. Under the CDA, the site is not considered a “publisher” of the content. This is true even if the content contains information that a website knows is false. The CDA applies to all website sites equally, including Facebook, LinkedIn, Craigslist, Yelp, and even Google. Users who post information on these sites are responsible for what they write; webmasters and operators of these sites are not.
The policy reasons underlying the CDA are simple: websites that allow third parties to post content to their site cannot possibly monitor the accuracy of the tremendous volume of information that users post. If websites were held accountable for their user’s speech, it would severely restrict the free flow of information available on the Internet. Therefore, the CDA provides immunity to prevent lawsuits from shutting down websites and other service provides on the Internet.
Under the protections extended by the CDA, websites that post third party content are generally immune from claims of defamation, invasion of privacy, negligence, and other tort claims associated with publication.
How to Remove Defamatory Online Content From The Internet
There is a prominent myth regarding the Internet that I’d like to debunk. The myth is that we are essentially powerless to defend against unfair online content and it’s virtually impossible to remove it from the web. Although the CDA provides broad immunity to websites, a range of options are available to attorneys to assist their clients in removing libelous and unwanted content from the Internet.
Despite the broad protections afforded by the CDA to websites, the following are several notable exceptions that provide for website liability and can be used to compel a website to remove content, even when the content has been provided by a third party:
- Intellectual Property Claims — Claims for copyright infringement, trademark infringement, and other intellectually property related claims such as the right to publicity are not covered by CDA immunity. Websites and service providers that are put on proper notice of intellectual property violations, like copyright infringement, should and often will promptly remove allegedly infringing materials.
- Criminal Law Violations – Websites are not immune from the enforcement of state and federal criminal laws, especially laws relating to obscenity and the exploitation of children.
- Communications Privacy Law – The Electronic Communications Privacy Act, Stored Communications Act, and related amendments or similar state laws are specifically excluded from CDA immunity.
- Editing Content That Materially Alters Its Meaning – If a website edits content created by a third-party and makes content that was otherwise not defamatory or illegal, defamatory, then a website will lose its immunity under the CDA.
- Promissory Estoppel – A website can, by explicit contract or promise, waive or be estopped from asserting CDA immunity. Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir. 2009); Scott P. v. Craigslist, Inc., CGC-10-496687 (Cal. Superior Ct. June 2, 2010).
- Encouragement to Post Content – Two federal appeals courts (Fair Housing Council of San Fernando Valley v. Roommates.com, 521 F.3d 1157 (9th Cir. 2008)(en banc) and FTC v. Accusearch, 570 F.3d 1187 (10th Cir. 2009)) have rejected website immunity under the CDA when a site “specifically encourages” the posting of illegal content by its users. The Southern District of Ohio recently found similar grounds for liability against TheDirty.com in Jones v. Dirty World Entertainment Recordings, LLCon July 11, 2013 (currently being appealed to the Sixth Circuit).
Author Liability and Removal
Authors of information published on websites are not immune from liability under the CDA. If the identity of an author of a post can be ascertained, the author can be confronted about his or her statements and can sometimes be convinced, by the threat of legal action or otherwise, to remove the information voluntarily (assuming the website where the content is published allows the author to retract the content). If necessary, legal action can be taken against the author and, in Ohio, an injunction can be obtained to force the author to remove the information from the Internet.
Voluntary Removal by the Website
Court Ordered Removal from Search Engine Indices
If information posted on a website is defamatory, but the author is unable and the website is unwilling to voluntarily remove the information (like Ripoff Report), options are still available to effectuate its removal. A little known remedy that circumvents this dilemma is obtaining a court order to remove specific website URLs from search engines results.
Here’s how it works: the harmed party must sue the individual that authored the information and obtain a valid court order declaring the content on the website defamatory and/or illegal. The court order can then be presented to a search engine, like Google, which voluntarily removes websites containing defamatory content from its search results upon being presented with a valid court order.
Although the content remains on the website where it was originally posted, once it is removed from search engine results it is essentially gone for most practical purposes. The content will not be viewed unless someone goes to the exact URL address or happens to search the website where the content is located.
This remedy can be more difficult if the identity of a poster is anonymous or unknown. Nevertheless, even this hurdle can usually be overcome through the discovery process and use of forensic Internet experts; however, I reserve discussion of this interesting and complex topic for another day.
These days the Internet can be a dangerous place for the reputations of individuals and businesses alike. In the words of Warren Buffet, “It takes 20 years to build a reputation and five minutes to ruin it.”
If you or your business is a victim of online libel, you are not powerless. It is likely that options with a good probability of success may be employed to get the content removed from Internet or search engine results.
Aaron Minc is an attorney with Minc LLC and focuses his practice on removing information from the Internet. More information about Internet defamation can be learned at www.minclaw.com. Aaron can be reached at (216) 373-7706 or firstname.lastname@example.org.
Removal of Defamatory Postings from User-Generated Content Websites
User-generated content sites have been developed to fill a broad array of niches and interests. Facebook is likely the premiere general purpose social networking website used by family and friends. Other important social networking platforms where the majority, if not all content is provided by users, includes Twitter, Reddit, LinkedIn and many other sites. Furthermore, there are certain sites dedicated to consumer complaints, like ripoffreport.com and pissedoffconsumer.com. Similarly there are user-generated platforms that purport to offer a service to help others avoid unfaithful boyfriends and girlfriends. Prominent sites in this niche include myex.com, cheater registry.com, datingpsychos.com, and an array of other sites.
Many sites will work with concerned users who believe that they are the target of defamation or other wrongful conduct. Some potential strategies to remove a post from the source include:
- DMCA takedown – If a person has used a photo created or taken by you, you can request the removal of the item. This can be particularly useful when a private photo for limited use is published widely by a party with no authority to publish it.
- Work through law enforcement to remove child pornography – Most sites are willing to remove sexually explicit photos of individuals under the age of 18. While the procedures to remove the photos will differ by site, you typically must provide proof the nature of the photo.
- Use of a court order – It is surprising to most, but sites are not required to comply with a court order to remove defamatory materials. Nevertheless, many sites will voluntarily comply making this a viable removal option.
- Revenge porn – Many sites will remove revenge porn, however the burden is on the requester to prove that the content is actually what is purported. An attorney can assist in illustrating the nature of the defamatory materials and can cite any relevant state laws which may apply.
While there are options to remove defamatory Internet postings, it is essential to note that the sites that post the user-generated content are provided with broad immunity against liability through Section 230 of the Communications Decency Act. While the law provides protection to the sites, individual users do not receive the same protections. In some instances it may be possible to have a site release the identity of the party who posted the defamatory materials. A victim of defamation can then pursue the original poster and litigate to hold the individual financially accountable for the damages that resulted.
Removal of Defamatory Search Result through a Service Provider like Google
In some instances the site may choose not to work with a party who is the victim of online defamation. While the justifications for this approach are numerous, many sites claim that it beyond their ability to referee or judge these matters. In some cases it may be possible to request Goggle to remove the search results provided that you have a valid justification for the removal. Google states that it will voluntarily comply with court orders that direct a third party to remove defamatory materials. Furthermore, in some instances and despite removal at the site level, the search result may continue to exist including a cached version of the page. When the site owner has removed a particular post, Google will also typically do so.
However, it is important to note that removal from Google or another search engine’s results is limited to exactly what it sounds like. That is, while the result is removed, it may persist on the third-party server where it is hosted. However, the removal of the page from the search index means that it will be very difficult, if not impossible, to locate the defamatory information without a direct URL. Since search engines account for a significant majority of web traffic, removing its listing can significantly impact the visibility of the page and its likelihood to cause further damage to your reputation and standing.
Rely on Experienced Internet Defamation Lawyers
If you are the victim of online defamation on a social media platform or on other sites, the experienced Internet defamation removal attorneys of Minc LLC may be able to work to remove those postings or photos on your behalf. To schedule a free, no-obligation initial consultation call (216) 373-7706 or schedule a meeting online.