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, LLC on 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 Meyers Roman Friedberg & Lewis, LPA and focuses his practice on removing information from the Internet. More information about Internet defamation can be learned at www.defamationremovallaw.com. Aaron can be reached at (216) 831-0042 or AMinc@meyersroman.com.