One of the many legal tactics available to an attorney to remove defamatory content from the Internet is to get a court order declaring the content defamatory. Although websites and other internet service providers generally have broad immunity under Section 230 of the Communications Decency Act and typically have no obligation to remove content that is defamatory, many websites, ISPs, and search engines will agree to permanently remove content if a party goes through the trouble of obtaining a court order declaring the content defamatory and illegal.
Getting the URL’s of defamatory websites de-listed from search engines can be a great way to circumvent the hard line positions of websites like Ripoffreport.com, who typically refuse to remove content under any circumstance. Although the defamatory information remains on a website like Ripoffreport even after obtaining the court order, if major search engines like Google and Bing agree to remove the content from their search indicies, in most circumstances, the information will never be found.
In a major blow to this great remedy, the search engines Bing! and Yahoo have recently decided to change their policy of permanently removing URL’s from its search index after being presented a valid court declaring content on websites to be defamatory. Although I have not seen any formal statement from Bing directly addressing this policy change, I recently submitted a valid court order to Bing to remove URL’s from its search index that contained defamatory information and was sent the following reply from its legal department:
We have forwarded your request to our Legal Department for review and they have provided the following response:
We are in receipt of your email including a court order under which the Defendant has been directed to remove content from specified websites. Microsoft is not a party to that order.
Companies in the search business use automated crawlers to index pages from across the Internet based on the content of those pages. When a user enters a word or phrase in the search engine’s query field, the engine searches the index for websites containing content relevant to the words or phrases contained in the user’s query. The results, which are returned automatically, include pages related to the precise search query as well as other relevant pages identified by the engine’s algorithm. The process is entirely automated and driven solely by the content of the crawled sites.
No business relationship exists between the Bing.com service and the owners of the websites retrieved by the automated crawler. Inclusion of a particular site in a search result is triggered by the content on that site, and that content in turn is wholly controlled by the site’s owner.
Once you have contacted the website owner and the content has been removed from the site, that will be reflected in the search results displayed on Bing and other search engines.
Thank you and have a great day!
Bing Technical Support”
Bing’s new position regarding court ordered removals is very disappointing. Having a search engine remove URLs from its search index after presenting a court order is often the last option for relief for many individuals and businesses seeking to remove defamatory information from search engine results.
Additionally, although Bing’s new position is its prerogative and its agreement to take action and remove content in the past was always a voluntary decision, Microsoft/Bing hasn’t taken the time to update its own statement as to its policy regarding these matters on its own website. In its support pages, Microsoft still states that when it does receive a valid court order, it permanently removes defamatory links from its search index. See http://onlinehelp.microsoft.com/en-ca/bing/ff808447.aspx
“How we address allegations of libel or defamation
Similarly, countries around the world have adopted laws and procedures to address defamation, libel, slander, and other harms related to false statements that are made or implied to be fact and which might yield a negative perception about an individual, business, or other organization. We do not remove resources containing allegedly defamatory content from our index without a court order indicating that a particular link has been found to be defamatory. When we do receive a valid court order, we remove those links from our index permanently.”
For plaintiffs that have gone through the trouble, at great cost and expense, to obtain a court order based on this past stated policy, without knowledge that Bing has changed its position, in my opinion may have a valid claim for promissory estoppel against the search engine. A claim of promissory estoppel is an except to Section 230 Communication Decency Act immunity. See Barnes v. Yahoo!, Inc., 570 F.3d 1096, as amended at 2009 U.S. App. LEXIS 20053 at *33-34 (9th Cir. June 22, 2009); Scott P. v. Craigslist, Inc., CGC-10-496687 (Cal. Superior Ct. June 2, 2010)). However, whether or not there is merit to this argument is of little consolation to parties that may be adversely affected by Bing’s change in policy.
Moral of the story: until notified otherwise, parties should now be on notice that Bing and Yahoo are no longer removing URLs from its search engine after being presented valid court orders concerning defamatory content.
If you have questions about obtaining a court order to remove content from the Internet, call Aaron Minc at Sennett Fisher LLC. Obtaining a court ordered to remove content from the Internet is just one of the many proven ways that an experienced internet attorney can offer assistance with online defamation. If you or your business is being victimized by damaging material on the internet, do not hesitate to call the experienced internet attorneys at the law firm of Sennett Fisher LLC to discuss all available solutions that may be available. Fill out this form, or contact us at (216) 342-5127.
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