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.
Hide this

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: defamation, default judgments, liability, remedies, section 230
Companies: ripoff report


Reader Comments

Subscribe: RSS

View by: Time | Thread


  1. identicon
    The Anti-Mike, 24 Dec 2009 @ 6:26pm

    Re: Re: Re: Re: Re: Re: Re:

    That is up to the courts. If the court feels it has jurisdiction, then you post it in a manner that is acceptable to the court. The only control the lawyers have is to choose the newspaper (or public post method) within the guidelines that the court requires to prove "service".

    Further, and this is important: If the anonymous poster isn't identified, and the service provider won't provide the information without court order, there is no way to know to serve the anonymous poster in Charleston (you don't know who it is), and the service provider is using Mike's "230! 230! 230!" chant to make it useless to post it in their city, so in the end, it is likely to be posted in the city or state where the offended party is located.

    That is the downside and sucky part of being totally anonymous, you do in the end sort of end up shooting yourself in the foot legally.

    Public postings / notices are at the court's discretion.

Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Make this the First Word or Last Word. No thanks. (get credits or sign in to see balance)    
  • Remember name/email/url (set a cookie)

Follow Techdirt
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Discord

Introducing the new Techdirt Insider Chat, now hosted on Discord. If you are an Insider with a membership that includes the chat feature and have not yet been invited to join us on Discord, please reach out here.

Loading...
Recent Stories

This site, like most other sites on the web, uses cookies. For more information, see our privacy policy. Got it
Close

Email This

This feature is only available to registered users. Register or sign in to use it.