Should A Site Be Forced To Takedown Content If A Court Rules Against The User?
from the a-bit-complicated dept
Back in November, we wrote about how some were trying to get around Section 230 safe harbors to get content taken offline. Basically, since a website isn’t liable for the content posted by users, the upset party would file a lawsuit against the “user” often knowing that the user will never show up in court (the discussion suggested even filing it in a way against a “phantom author” to make sure no one will show up in court). Since the user doesn’t show up, a default judgment is entered, and then the lawyer has a court order stating that the content is defamatory and can go to the website demanding that the content be taken down.
Now, in cases where the content actually is defamatory, this setup is probably fine (with some caveats). But in situations where the content isn’t defamatory and the default judgment is so “engineered,” it’s pretty ridiculous to then force a site to take down that content. And, in fact, Eric Goldman points out that, in one of these situations (default judgment entered, then with that in hand, requests were sent out demanding the content be taken down), a judge has sided with Ripoff Report (who didn’t want to take down the content) and said that the site has no obligation to remove the content, since “Ripoff Report’s relationship to the user is too “tenuous” (by entering into a user agreement for content publication) to constitute “acting in concert” under FRCP 65.”
Goldman is troubled by this, as is Ben Sheffner, who sees it as a bad situation when there’s a “wrong” that has no remedy. After all, the original complainant “won” their case saying that there was defamatory content — but there appears to be no legal way to then get that content taken down! It’s certainly an odd situation, but the more I think about it, I think the complaint that Sheffner makes (that this is a problem with Section 230) is entirely misplaced.
Section 230 works exactly as intended here: making sure that a third party is not made liable for the actions of others. The problem is with the default judgment process. It’s a situation where there’s really no “defense” for the content that was posted at all — which is Ripoff Report’s main concern. Now, there are plenty of reasons for why default judgments are granted when one party doesn’t show up, but it can lead to really bad results — such as potentially in these sorts of cases. Perhaps a more reasonable solution would be to set up a separate process that actually requires substantive review of the content before it can be forced offline — even if the supposedly liable party doesn’t show up. I recognize that opens up all sorts of other issues as well — but it seems like the most “fair” solution: don’t require takedown by third parties in default judgments, but include a separate process for establishing whether or not the content really needs to be removed. That leaves Section 230 intact, as it should be, and focuses the solution on the real issue.