More Shady Libel Lawsuits Resulting In Dubious Delisting Court Orders Uncovered

from the self-serve-RTBF dept

Now that Eugene Volokh of the Volokh Conspiracy has dipped into bogus lawsuits and DMCA notices targeting supposedly-libelous reviews and comments, he’s apparently stepped up his detective work. Volokh and Paul Alan Levy of Public Citizen managed to expose the person behind a series of bogus lawsuits aimed at cleaning up clients’ search engine reputations. (Pissed Consumer has also uncovered some of the same tactics.)

Volokh has uncovered more questionable lawsuits, which have led to more questionable court orders being sent to Google to delist content. As Volokh points out, these lawsuits may be slightly more legitimate, but they still bypass a great deal of the adversarial process.

Here’s another twist, which some people have used to try to deindex mainstream news articles (though without any success, to my knowledge, because Google seems skeptical of these particular requests) — they (a) sue the people quoted in the articles, (b) get stipulations from the people recanting their allegations, (c) get court orders based on those recantations and then (d) try to use those court orders to deindex an entire article.

Even if it’s granted that the stipulations are genuine (a possibility, but not a probability), there’s still the problem of who’s being cut out of the loop. While it’s true the correct target for a libel lawsuit is the person making the defamatory statements, filing lawsuits in such a way that the publications themselves remain unaware of the legal proceedings can harm these new entities indirectly. When content starts vanishing from Google, news sources are left with unlisted stories based on questionable assertions. Their integrity suffers damage when they’re not made aware a story’s source may have lied to them.

When a plaintiff sues the source, though, gets a stipulation and submits the order to Google with a deindexing request, the plaintiff is trying to short-circuit the news organization’s review of the matter. Instead, the plaintiff wants to just get the original story hidden, with no independent evaluation of whether the story was and continues to be correct.

There’s no review option and the continued publication of the story could possibly see the new organization facing a defamation lawsuit of its own. (Probably not a successful one, but one it would still be compelled to defend itself against.) Not only that, but individuals may be more susceptible to legal bullying than new agencies. This is perhaps what these plaintiffs are counting on.

Volokh covers two different cases following the same M.O. in his post. Both plaintiffs managed to obtain a stipulation from the alleged defamers and obtained court orders to delist content, despite there never being an examination as to whether the statements were truly actionable. To its credit, Google has refused to delist content based on court orders obtained this way, most likely due to the recent increase in bogus libel lawsuit activity.

As I mentioned, fortunately today Google (and other search engines to which these orders are submitted) can decline to implement such deindexing requests, taking the view that a stipulated judgment based on a source’s recanting (under legal pressure) is no reason to vanish a news story that relied on the source.

Unfortunately, Google’s “opt out” may not last for long. As Volokh points out, the California Supreme Court is currently reviewing a case that could, if the lower court’s decision is upheld, force Google to comply with these orders, whether or not they were obtained legitimately.

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Comments on “More Shady Libel Lawsuits Resulting In Dubious Delisting Court Orders Uncovered”

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Anonymous Coward says:

shady court orders!

How is it that a major interested party in a court order isn’t even notified? If you are gonna ask Google to delist a result, don’t you think the site with the result should be given reasonable notice to contest?

You know, you order my bank to give all my money to someone…but don’t bother telling me before hand…

Yup, seems fair!

Bergman (profile) says:

Re: shady court orders!

That’s why it’s a scam.

Why sue the person who will fight you in court, when you can sue someone (who is already employed by you) with the same name, who will settle the instant they are served?

The person who actually wrote the content they object to might never become aware that their content has been delisted. And if they do inquire why their content is gone, they’ll be treated to the mystifying experience of being told that it was taken down after the court case they lost, despite them never having been sued.

Anonymous Coward says:

I'd be careful saying that duly processed court orders are "shady" or "illegitimate".

I note that you avoid names.

“a source’s recanting (under legal pressure) is no reason to vanish a news story that relied on the source” — Certainly it is. You are then knowingly publishing (or indexing) FALSE statements. Like it or not, the court system is only way we have to deal with falsehoods.

Oh, and Google is NOT immune to court orders.

Anonymous Coward says:

Re: I'd be careful saying that duly processed court orders are "shady" or "illegitimate".

They’re "illegitimate" because they’re flagrant violations of basic due process. As the Supreme Court said in Zenith Radio v. Hazeltine:

It is elementary that one is not bound by a judgment in personam resulting from litigation in which he is not designated as a party or to which he has not been made a party by service of process.

If you want Google to do something in response to what you’re throwing at the court, Google needs to be made a proper party to the case, served papers, and given a chance to appear. END OF STORY.

How would you feel if you suddenly got an injunction in the mail telling you to delete something someone else posted to a forum you were an admin on seven years ago and subsequently forgot about, with no chance to make a case to the court that sent the injunction?

Roger Strong (profile) says:

Re: Re: I'd be careful saying that duly processed court orders are "shady" or "illegitimate".

…which leads to the robo-signing scandals of the last decade.

"The first you heard is when we seized your house? Well, we sent you a notification. You didn’t get it? Oh; that’s too bad. Now that we have a default judgement because you didn’t show up in court, it’s too late to appeal."

DB (profile) says:

Re: I'd be careful saying that duly processed court orders are "shady" or "illegitimate".

The act of ‘publishing’ (in this context) occurs on the date that the item is first made available.

It’s not ongoing libel just because a story continues to exist. You can sue a newspaper for a false story, but you don’t have a cause of action against a library that continues to makes the newspaper available to be read.

You might argue that is an obsolete definition in the online era. However that’s not the current precedent.

Of course in the example you give, the newspaper did write an accurate story. They correctly quoted a source. Even if the source later recants, the newspaper isn’t at fault. Nor is the library.

Bergman (profile) says:

Re: I'd be careful saying that duly processed court orders are "shady" or "illegitimate".

Google IS immune to court orders arising from court cases they were not invited to participate in.

But that’s not the issue at hand.

Suppose your legal name was Anonymous Coward and you posted something that someone, somewhere, considered to be libelous. But instead of suing you, they sued someone else with the same name as you, someone who they hired specifically because that person had the same name as you. And that person’s job is to plead no contest and agree to every demand made of them the instant they are served with the lawsuit.

So now, having ‘won’ a judgment against someone with your name, they go around demanding that your content be deleted by every site you posted it on, even though they never actually sued you.

Even if you were named specifically in a court order or injunction resulting from their lawsuit, you would not be bound by them in any way, because you are not the person that they sued. Civil court decisions are only binding on parties to the case under US law.

Wyrm (profile) says:

Re: I'd be careful saying that duly processed court orders are

I see plenty of objections there.
1. You’re getting a stipulation that the aggregations are false. Do you have proof it’s the same guy the article based his article on?
2. There could be other sources of information or other information completely. Delisting the whole article through a third party instead of notifying the author of the article means you’re “killing” the whole article instead of leaving a chance to fix it.
3. Something false is not necessarily libel. Not every falsehood is actionable.
4. Why go to such length to avoid serving the people actually involved? How come judges can order anyone to do anything without hearing them first? Or order something involving someone else?

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