by Paul Alan Levy
Techdirt carries word of an ingenious scheme that two California lawyers have been running to get unflattering reviews removed from Google’s search results without ever proving defamation in an adversary proceeding and, indeed, without risk of an adversary proceeding.
Opinion Corp., which hosts the consumer review site PissedConsumer.com, noticed a suspicious pattern of such link removals accomplished by companies that have been criticized on its site. A company’s lawyers would file John Doe actions, but they never get around to issuing subpoenas to identify the posters (for which, in many jurisdictions, they would have to make a Dendrite showing). Instead, they claim to have identified the users by other investigative means; then they obtain confessions of error and fault from the formerly anonymous defendants; and finally they provide the ensuing court order to Google (another search engines) to get the matter removed from search results.
The search engines are not bound by such orders, just as the hosting sites are not bound, but search engines have typically exercised discretion to remove enjoined content as a matter of judgment and good citizenship, even if the hosting site stands on its section 230 immunity. Techdirt reports that the removal can extend beyond the specific comment that was found defamatory to the entire set of criticisms of the plaintiff company. And the agreed order that the Court is asked to sign need not even be in favor of the company that brought the lawsuit: according to Techdirt's analysis, the plaintiff company could be a shell while the order grants relief for a second, real company. And apparently there are some judges who don't look at the orders carefully enough to catch the bait and switch.
It is the possibility of such collusive litigation that has in the past impelled me to advise hosting clients not to be too ready to remove content when an order issued against the poster is only based on a default judgment; this is also why we were pleased to support Ripoff Report in its appeal in Giordano v. Romeo, arguing that section 230 provides immunity against injunctive actions as well as damages actions. And the possibility of such manipulations it is one reason why we have tried to urge trial judges to be suspicious of ex parte motions for early discovery.
But unlike some of my colleagues in the community of online free speech defenders, it has always been my view that Google’s willingness to route around hosting sites that refuse to accept libel judgments against their users, by removing sites from their search listing, should be welcomed, not condemned as an assault on free speech. By providing a useful back door, this device undercuts the litigation argument that section 230 ought to be construed, contrary to its plain language, to allow suits against hosting sites for injunctive relief particularly against hosting sites that have acquired a bad reputation.
What Should Search Engines Do?
But assuming that Techdirt’s analysis is justified – and I have been unable to get any response from the two lawyers whom the blog post criticized — it seems to me that Google and other search engines will have to be more scrupulous in considering whether a given court order merits the drastic measure of removing a link from its search results. Search engines It might be on the lookout for collusive situations – or, considering that the hosting site as well as the poster has an interest in protecting its ability to provide a platform for consumer complaints, the engines might make contact with the site itself and ask for input. And they should certainly limit the removal to the specific statements whose repetition was enjoined.
Do the Affected Private Parties Have Any Recourse?
In theory, Opinion Corp. might intervene in cases where this scam has been employed to ask to have the injunctions lifted, on the theory that the injunction has been used improperly to harm its interests. But I wonder whether, assuming that it can through a series of such interventions establish a pattern of conduct by these two lawyers, Opinion Corp. might have a sound claim for abuse of process. And the competitors of companies that have benefited from the apparent scam might have a claim for false advertising against those companies.
