Manhattan Attorney Sues Google Over Three-Word 'Libelous' Review That Isn't A Review Or Libelous

Defamation

from the 'I've-tried-to-be-reasonable.-Now-I'm-going-to-be-ridiculous.' dept

We’ve covered a lot of ridiculous defamation lawsuits here at Techdirt, but this one may have them beat. It’s not even that the lawsuit is bullying in any form. It’s that the lawsuit is at odds with itself, with the complaint more resembling someone thinking out loud than actually seeking to have a wrong righted. (h/t Ars Technica)

Manhattan attorney Donald J. Tobias wants the court to force Google to hand over all kinds of identifying information on a commenter (“Mia Arce”) who posted a three-word “review”: “It was horrible.”

Tobias simultaneously claims in his lawsuit that the review is both “plainly defamatory” and possibly a mistake. Tobias (the attorney) thinks the review may not actually be a review, but rather a reaction to the tragic suicide of Cornell professor Donald J. Tobias, who jumped in front of a subway train in 2013.

Tobias (the attorney) theorizes that “Mia Arce” may have witnessed the suicide and the “review” is simply a reaction to the suicide. Nevertheless, he sent a letter [PDF] to Google asking that this “review” be taken down or that it would pass on identifying information on the reviewer to him. Google, unsurprisingly, refused to do so. This didn’t please Tobias, who had earlier presented Google with the same conflicting claims (libel per se/possible mistake) only to run head-on into Section 230 of the CDA. From the lawsuit [PDF]:

This effort was, unfortunately, unavailing. On June 17, 2016, the Petitioner received a “form” e-mail, from the “Google Team,” wherein the said Respondent, apparently relying upon its purported right, assertedly by virtue of the provisions of the Communications Decency Act of 1996 47 U.S.C. to ignore the problem with which the Petitioner was now confronted, stated, among other things, that “Google has decided not to take action on your request.”

In doing so, the “Google Team” noted that while it had acted as the “host” for the placement of third party content, it was not “the creator or mediator of that content” and that it would therefore do nothing more than “encourag[e] [Petitioner] to resolve any disputes directly with the individual who posted the content” (steps that would include, of course, if need be, commencing a lawsuit against the said individual and obtaining against the said individual appropriate injunctive and/or monetary relief). Google did nothing, however, to provide the Petitioner with any information, such as the address, telephone number or e-mail address of the person that made the subject posting, or even confirm that the person who did the posting was in fact an individual named Mia Arce. To the contrary, the Petitioner was told in this “form” reply that such information would be provided only in response to what it called “valid legal process.”

This lawsuit is the first step in the “valid legal process” Google is demanding, although it’s unlikely a judge is going to find this approach “valid.” Tobias admits the posting is probably erroneous but still wants to treat it as libel in order to obtain identifying information on the reviewer. I don’t think many judges are going to entertain a half-baked libel lawsuit in which the petitioner openly theorizes the libel isn’t actually libel but a response to a tragic incident wholly unrelated to him (other than by name similarity).

An unspecified something being deemed horrible doesn’t fit the definition of libel per se and this attorney likely knows this. But whatever Tobias knows about libel law isn’t going to stop him from trying to force Google to remove the “review” and/or hand over identifying information. If Google is forced to do the latter, would Tobias actually pursue a defamation lawsuit against “Mia Arce” for a three-word comment that very likely doesn’t refer to him in any way? The answer, unfortunately, is probably “yes.”

Mr. Tobias, who said he’s practiced law for 40 years, vowed to press on with his grievance.

“I’m going to get to the bottom of this,” he told Law Blog by phone on Monday. “There should be some recourse…You can’t go around defaming people.”

Well… of course not. But that’s not what’s happening here, according to Tobias’ own theory. In any event, Tobias has hired a fool for a lawyer — one with as many pro bono “billable” hours as Tobias is willing to throw at it.

Filed Under: cda 230, defamation, donald j. tobias, donald tobias, reviews, section 230
Companies: google