NY Judge Laments The Lack Of A 'Right To Be Forgotten'; Suggests New Laws Fix That

from the the-first-amendment-would-be-a-problem dept

A NY state judge, Milton Tingle, has apparently decided that Europe's troubling right to be forgotten concept should be imported into the US (possible registration/paywall). The case he was dealing with -- the rather impressively an vaguely named "Anonymous v. Anonymous Jane Does" -- touches on an issue we've discussed for many years. What happens when you have defamatory content posted to a site, where the site is protected by Section 230 of the CDA, and the original posters cannot be found.

In those cases, as we've noted, there may be no effective remedy for the defamatory speech. The site cannot be forced to take it down, because if they're just a platform, they have no liability for someone else's speech. And since the person or people who are responsible can't be found, not much can be done. That appears to be the situation in this case:
Claiming they were prostitutes, anonymous commentators with the handles "JennaVixen," "Emma NYC Escort" and "Anonymous," posted opinions about the plaintiff's sexual habits.

One of the commentators said he or she also was "an ex-employee owed money who is suing [the plaintiff]."

The plaintiff sued in 2013, claiming the comments were defamatory per se. He said he never engaged in the sexual activity described, nor was he an employer who failed to pay employees.
Since the commenters were anonymous, and there was no way to track them down, the judge initially allowed the commenters to be "served" by posting the summons on the same site where the comments were made, Dirtyphonebook.com. Not surprisingly, posting the summons on the site didn't make the commenters show up in court (whether or not they even saw the summons). Thus, the plaintiff won in a default judgment. But, again, nothing specifically could then be done -- which the judge appears to understand. However, he's troubled by this lack of a remedy, and appears to use the opportunity to muse on importing the "right to be forgotten" in such cases:
Though it was not within the court's authority to create laws, Tingling said he could offer suggestions to the Legislature.

One thought, he said, was to take up a rule akin to the "right to be forgotten" in the European Union Court's 2014 case, Google Spain v. Agencia Espanola de Proteccion de Datos, Case C-131/12.

There, the court said individuals had the right under certain circumstances to request that search engines remove links to personal information that was inaccurate, inadequate, irrelevant or excessive for data processing purposes.

"Thus, the right to be forgotten offers greater protections than §230 of the [Communications Decency Act]," said Tingling.
Unfortunately, this is a dangerous approach to the situation and likely goes too far. First, even the lawyer for the plaintiff notes that this ruling gave his client "exactly what we needed" -- which is a court ruling that the content is defamatory. It is highly likely that a copy of that ruling is being sent off to various search engines who may choose to remove it based on that court ruling. There need not be a "right to be forgotten" which would be much broader and have many unintended consequences, potentially harming the First Amendment. There is no need to break the important protections brought forth by Section 230.

Instead, the judge has ruled that the content is defamatory, and the plaintiff and his lawyer have the ability to use that to request various sites take action in response and it is likely that many will follow through in doing so.

Of course, even that situation can lead to suppression of speech. Note that the case described above is not all that different from one we recently described involving Roca Labs suing anonymous commenters, where it seems fairly clear that Roca isn't looking to identify the commenters, but rather to get a default, in order to pressure Google into removing those negative reviews. This is why a legal change, a la the one suggested by Judge Tingle, would be so problematic. As it stands now, companies like Google can look at incoming requests showing legal rulings on defamatory content and decide for themselves whether or not the content should be removed from their index. Changing the law would open up another avenue for censorship through questionable means.

Reader Comments

Subscribe: RSS

View by: Time | Thread


  • identicon
    Anonymous Coward, 23 Dec 2014 @ 10:45am

    If Google insists on posting something after a court has ruled it defamatory, perhaps they should be sued.

    You twist yourself into so many positions in order to try and protect the profits of this mega-corporation. It's really f'd up.

    reply to this | link to this | view in chronology ]

  • icon
    CK20XX (profile), 23 Dec 2014 @ 11:11am

    Only immature people wish to erase history and be forgotten. Mature people learn to live with their embarrassments and become stronger for it.

    reply to this | link to this | view in chronology ]

    • icon
      alanbleiweiss (profile), 23 Dec 2014 @ 4:34pm

      Re:

      Actually that's a false flag claim under various circumstances.

      One that comes to mind is if information is posted that is flagrantly false, (as has been claimed in such cases all the time), then it has nothing to do with erasing history. It has every thing to do with restoring credibility where it is rightly due.

      Only immature people think "if its on the internet, it must be true, and should become part of history".

      reply to this | link to this | view in chronology ]

      • identicon
        Pragmatic, 24 Dec 2014 @ 5:13am

        Re: Re:

        Thank you. If enough people spread a lie around, it becomes "true." If enough people believe it, you can end up suffering in real life "because so many people are saying it. If it's not true, why are they saying it?"

        reply to this | link to this | view in chronology ]

      • icon
        Sheogorath (profile), 25 Dec 2014 @ 8:18am

        Re: Re:

        So why not go to court and get a subpoena to either get the defamatory material directly deleted and/or the posters' IP addresses handed over rather than demand that a single search engine delete links to the posts you find problematic? Simples!

        reply to this | link to this | view in chronology ]

        • icon
          alanbleiweiss (profile), 25 Dec 2014 @ 9:55pm

          Re: Re: Re:

          since I work in search marketing, I've had clients hire me to help with their online reputation. I don't always take them on as clients (Streisand effect, etc.)

          Once in a while, it's much more complicated. I had one client where a competitor hired an agency to post false content all around the web, mostly on sites that stand behind the "we just host it" claim.

          Even though my client won the legal battle, the posters had been "an outside agency", and used false profiles. Just to get the first court process done took two years and $100,000.

          To actually get a court to direct those sites to remove that content (since the "anonymous John Does" and their "agency" were unreachable) was expected to take at least another two years. And that much more money.

          Seriously. It's a major problem.

          Sure, I think forcing search engines to take down links is a mostly horrific path, the system is critically broken as it is, and real human lives, livelihoods and reputations are ruined all the time by malicious troll behavior and actions.

          reply to this | link to this | view in chronology ]

          • icon
            Uriel-238 (profile), 26 Dec 2014 @ 1:26pm

            It's a major problem when A FEW people have that power.

            No, instead we should just leave the ability to character assassinate to professionals like William Randolph Hearst? Or the current media moguls like Murdoch and Turner?

            When only a few people have this power, and that is what right-to-forget policies will allow, then people tend to believe all the slander put out by those sources. Hearst was notorious for calling a cannibal anyone he didn't like politically, and that was enough to cost them votes or credit. When everyone has that power, a couple things seem to happen:

            a. Some people develop the notion that we should be more polite. As Marge Simpson said "I guess one person can make a difference. But most of the time, they probably shouldn't."

            b. A lot of people realize that they are fools for believing things posted on the web without sources. Obama went through an entire campaign and a term-and-a-half with the internet rumor mill generating nonstop -- with the end result that we now think vicious idiots those people that once (or still!) criticize Obama for being non-native, or a muslim, or a communist. It's actually made it more difficult to take seriously those who criticize his policies for legitimate reasons (such as being pro-surveillance.)

            I think it's going to be tough while people in power choose to be willfully ignorant and cull their workers and associates on the basis of internet rumors. On the other hand, by throwing out good people and keeping those with squeaky-clean (e.g. well managed) records, they also hurt themselves by filtering for people who look first to cover their own asses.

            Maybe in the end when all our skeletons are revealed with only a little digging, we'll better forgive and respect others for being human.

            reply to this | link to this | view in chronology ]

          • icon
            nasch (profile), 29 Dec 2014 @ 10:34am

            Re: Re: Re: Re:

            Sure, I think forcing search engines to take down links is a mostly horrific path, the system is critically broken as it is, and real human lives, livelihoods and reputations are ruined all the time by malicious troll behavior and actions.

            I am in favor of section 230 protections, on the other hand it's problematic when the actual speakers can't be found. I just can't think of a good solution. Default judgments will be automatic, so that's not a good criterion of whether something is defamatory. It's not fair to force third parties to defend a case to decide whether it's defamatory. Some other countries have procedures that aren't adversarial that could be used in a case like this, but I don't think the US has any such tool.

            reply to this | link to this | view in chronology ]

  • icon
    Uriel-238 (profile), 23 Dec 2014 @ 11:15am

    In this discussion of "right to be forgotten" we're seeing very little of...

    ...a right to remember.

    Isn't the right-to-be-forgotten essentially a form of pinpoint historical revisionism?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 24 Dec 2014 @ 5:19am

      Re: In this discussion of "right to be forgotten" we're seeing very little of...

      So what do you call inaccurate information or outright slander/libel? History?

      Okay, fine. Now you've got to explain to your boss, who found that stuff online about you, that it's not true. Your word against a host of trolls, most of whom may seem perfectly reasonable.

      Good luck with that, particularly if you live in a right-to-work state.

      reply to this | link to this | view in chronology ]

      • icon
        Uriel-238 (profile), 24 Dec 2014 @ 10:49am

        Re: Re: In this discussion of "right to be forgotten" we're seeing very little of...

        If said boss believes everything that he finds on the internet then maybe it's not a good job to have.

        I know that may sound like a difficult truth in an economy where bosses can demand facebook passwords (or, for that matter, blowjobs) with impunity, but the problem you suggest is a symptom of the FUBAR economy, not an internet that archives every little comment about someone that may or may not be you by someone that may or may not know or care.

        I think XKCD nailed it in one. Once everyone is a victim of the internet, then people might be a bit more thorough and reasonable when using it as a resource to vet potential employees.

        If your state hates its workers so much that they make it that difficult to find a legitimate job, then I suggest you start looking for an illegitimate job. Once the state ceases looking out for your best interests you are already an outlaw.

        reply to this | link to this | view in chronology ]

  • icon
    limbodog (profile), 23 Dec 2014 @ 11:35am

    If you want to be forgotten

    Just post so much crap that the offending incident in on page 800 of google search results.

    reply to this | link to this | view in chronology ]

  • icon
    TKnarr (profile), 23 Dec 2014 @ 11:38am

    Anyone who's worked in the corporate world knows what happens when the "right to be forgotten" exists: management makes a dumb decision, are told why it's dumb, and insists on having it's way anyway. Then when the inevitable train wreck happens they disavow any knowledge of their original decision, delete all evidence of it and try to blame the people they ordered to follow the dumb decision for following their orders. And management hates it when it turns out I've kept a copy of the e-mails documenting the entire chain safely tucked away in a file folder and immune to the effects of Exchange's recall-message and delete-message functionality and the normal time-based purging of older messages (I delete messages when they're no longer relevant, not just because an arbitrary amount of time has passed). I file "right to be forgotten" right there alongside corporate "records retention" policies: their primary purpose is to give an excuse for the destruction of evidence of wrong-doing or willful stupidity before it can be used against the guilty parties.

    reply to this | link to this | view in chronology ]

  • identicon
    Jyjon, 23 Dec 2014 @ 12:35pm

    Forgotten

    Judge wants to be forgotten, forget him and everything he said, I won't object.

    reply to this | link to this | view in chronology ]

  • icon
    OldMugwump (profile), 23 Dec 2014 @ 12:54pm

    This

    ...is exactly where the 1st amendment comes in so handy.

    reply to this | link to this | view in chronology ]

  • icon
    Christopher (profile), 23 Dec 2014 @ 1:57pm

    Yes, it would open up a legal avenue for censorship but it would ALSO open up a legal avenue for people like myself to more easily, without having to go to the expense of hiring a lawyer, get defamatory stuff taken off the internet.

    There is TONS of stuff slandering my name online, taking comments I made in the past and 'cut and pasting' them together to say something that I did not say or even intimate.

    There needs to be some way to fix that issue of defamatory and slanderous posts without making someone bankrupt themselves by having to hire a lawyer.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 23 Dec 2014 @ 2:18pm

      Re:

      Make it too easy to get stuff taken down and anybody can get anything that they dislike taken down. Under such a system only rich corporations could afford to keep stuff up, as they can afford the lawyers to fight false take-downs, and that would achieve what they desire, a one way Internet.

      reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 23 Dec 2014 @ 2:29pm

      Re:

      While that may suck for you, your reputation or feeling do not justify opening the floodgates for censorship.

      The process of silencing someone else should be difficult, and require a court case, even if you're talking about blatantly incorrect statements. The alternative, people having their speech removed or delisted based upon nothing more than a claim that it's defamatory, would cause far more damage than it would prevent.

      Can you imagine how quickly a scammy company would be filing to have negative reviews taken offline should such a law be implemented? How quick a company that makes it's money shaking people down would file to have delisted sites that expose their actions?

      No, the current state of affair may suck to those that are paying out the nose for lawyers to deal with defamatory statements online, but the alternative would be worse for just about everyone else.

      reply to this | link to this | view in chronology ]

      • identicon
        Pragmatic, 24 Dec 2014 @ 5:26am

        Re: Re:

        Why must there only be an equally opposite reaction option? Proper moderation would actually solve most of the problems we have with people deliberately trashing our names or outright persecuting us online.

        It's one thing to complain about bad service, but quite another to harass a girl born with a shrunken arm, per the story in Ars Technica about the troll hunters.

        Are we really so dumb we don't know the difference? Is it really just a matter of perception? Is it really so subjective?

        Nobody is being censored if they can't circulate pictures of your daughter's dead body in her wrecked car while joking about her sexual habits and (possible) use of narcotics because the websites on which they are posted keeps taking them off.

        reply to this | link to this | view in chronology ]

        • icon
          nasch (profile), 29 Dec 2014 @ 10:38am

          Re: Re: Re:

          Proper moderation would actually solve most of the problems we have with people deliberately trashing our names or outright persecuting us online.

          Are you suggesting all web sites should be forced by law to moderate discussion forums?

          Nobody is being censored if they can't circulate pictures of your daughter's dead body in her wrecked car while joking about her sexual habits and (possible) use of narcotics because the websites on which they are posted keeps taking them off.

          Actually, they are. You may agree with that censorship, but that doesn't mean it's not censorship.

          reply to this | link to this | view in chronology ]

  • icon
    DannyB (profile), 24 Dec 2014 @ 8:18am

    America already has right to be forgotten

    You simply need to:
    1. Put your site behind a paywall
    and
    2. Host your site on a Comcast ISP

    reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Use markdown for basic formatting. HTML is no longer supported.
  Save me a cookie
Follow Techdirt
Techdirt Gear
Show Now: Takedown
Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

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