A number of attorneys who specialize in online defamation/libel cases
have reported to me that Google has recently suspended its
longstanding, informal policy of removing URLs from US search results
that are specified in duly executed court orders. This poses a major
paradigm shift for many victims of online reputation attacks.
Beginning around August or September of this year, a number of
attorneys from across the US began receiving blanket denials after
submitting requests to remove defamatory content from Google’s search
results.
Since at least 2009, Google has had an informal policy of accepting
many removal requests when accompanied by a properly executed court
order specifying defamatory/libelous content at specific URLs. I’ve
personally seen a number of cases where hundreds and even thousands of
URLs have been submitted with court orders, and Google has removed those
URLs from search results.
But they’ve now stopped. Not for every single request, but for a sufficient number that it’s clear something has changed.
Background: Search engines immune to libel removal demands
It’s worthwhile to note that search engines, and various other types
of online sites and services, were made immune in the United States from
liability for things like defamation/libel by Section 230 of the
Communications Decency Act (“CDA”). For hundreds of years of established
law, publishers (such as of books and newspapers) could be held
responsible for content published through them.
With the advent of the internet age, it was initially unclear how
some types of websites should be categorized — were they publishers, and
should therefore be held directly accountable for defamatory content,
or were they merely distributors of others’ content, similar to
libraries and bookstores, and should therefore not be considered liable
for their content? There were concerns that categorizing all types of
sites as publishers would potentially have a depressing effect on
innovation and business in the nascent internet.
As the Digital Media Law Project
states,
in 1996, Congress elected to clarify any ambiguity and to
simultaneously provide protection for many types of sites by legally
defining them as
not being publishers:
No provider or user of an interactive computer service shall
be treated as the publisher or speaker of any information provided by
another information content provider.
“interactive computer service” means any information service, system,
or access software provider that provides or enables computer access by
multiple users to a computer server.
Most courts have held that through these provisions, Congress granted
interactive services of all types, including blogs, forums, and
listservs, immunity from tort liability so long as the information is
provided by a third party.
Google’s
help page for requesting removal of content cites Section 230 of the CDA for US users:
Despite this signpost that outright states,
“Google does not
remove allegedly defamatory material from our search results…”, in
practice, Google has long chosen to act upon court orders and removed
libel and defamation from the search results (legally speaking, court
orders identifying such content makes it no longer “allegedly”).
For victims damaged by false statements online, Google’s de facto
policy of removing defamation from their results has been a godsend.
Google alters its policy around defamation removal requests
I spoke with multiple attorneys specializing in online defamation
across the country, and they all report similar responses from Google
recently where the company declined to act on requests to remove URLs
listed in court orders. The responses for these included a brief
statement reading:
“At this time, Google has decided not to take action.”
It’s not unusual for Google to sometimes push back on such requests
in instances where a court order is not specific enough, where the legal
work has been sloppy or where URLs are incorrect. But the current
denial responses do not appear to be due to those types of protocol
mistakes.
Some requests appear to be still undergoing reviews and
consideration, and some related to prior removals appear to be still
pending consideration. The door to defamation removals may not be
completely closed. But some requests are simply being declined with no
indication as to why. And they are the sorts of requests that were
previously being reliably removed.
Why has Google decided to halt this practice?
We reached out to Google, but they have chosen not to make any
official statement at this time. I’ve been informed that Google may
still elect to act upon court-ordered libel/defamation removal requests
if they choose, on a case-by-case basis. As their help page established,
they consider themselves not legally obligated to do so.
For the professionals who assist companies and individuals with legal
removals, the lack of explanation around the apparent policy-shift or
process-shift is very disturbing, and makes it difficult to convey
reasonable expectations to defamation victims. And, in many cases, lack
of action on Google’s part will create greater hardship for victims, or
will even eliminate any real recourse at all.
The abrupt change in policy has invited a lot of speculation.
I know from multiple past discussions with various search engine
company insiders that they consider removals to be undesirably costly,
and that materials published on others’ websites are not particularly
their responsibility. Quoting what one insider once told me, “This is a
project that does not make money for the company, and does not save
money for the company, so it is a low priority.”
Electing to not take action on defamation removal requests seems in
line with this. They are a business, and should not necessarily be
motivated purely out of altruism, according to this line of thinking.
It is undoubtedly costly. Google processes thousands of URL removal
requests and maintains staff dedicated to all types of legal removal
reviews.
Removal requests may also be philosophically troubling in many instances. According to their
Transparency Report,
many removal requests citing defamation originate from government
agencies and law enforcement. (Albeit, it seems likely that many of
these removal requests may originate from countries that do not have as
strong freedom-of-speech laws as found in the United States.)
Perhaps Google is halting many US defamation removals to make a
statement against censorship, here at the tail end of what could be the
most rancorous political race in the world’s history.
It’s undoubtedly upsetting for fair-minded employees to be in the
position of sometimes removing URLs that critique governments and
politicians for countries where it may be deemed illegal to say negative
things about officials. But this does not seem to explain what is going
on here, since the requests being submitted do not appear to be unfair
attempts to censor, but rather malicious and untrue attacks on
individuals and companies.
Another explanation could be due to revelations from earlier this
year that some unethical attorneys and reputation agencies have abused
Google’s removal process and perhaps committed fraudulent actions in the
process.
In the spring,
Pissed Consumer reported
that a number of suspicious lawsuits with purportedly bogus defendants
were filed in California courts to obtain defamation court orders
enabling URLs to get delisted by Google. In October,
Pissed Consumer sued a reputation management company
and attorneys that are alleged to be behind “sham lawsuits” and “stooge
defendants” that were used to fool Google into removing undesirable
consumer reviews.
It seems likely that the revelations around these abuses may have
factored into the company’s decision to decline to act on some removal
requests. Could it be that Google is now applying some more restrictive
requirements around court orders that it will accept in the wake of the
unethical manipulation?
Possibly. But, having reviewed some of these requests, I don’t see
sloppiness or commonalities with the sorts of things that Pissed
Consumer has complained of. If motivated by the abuses alleged by Pissed
Consumer, Google could merely be starting to demonstrate that they are
autonomous in their decisions about whether or not to remove something.
For the attorneys and their clients who are now failing to procure
intervention on the part of Google after they have gone through
ofttimes-lengthy and costly litigation processes, the abrupt apparent
change in policy and lack of explanation are upsetting and confusing. Is
this shift temporary? Should they continue to submit the requests again
later? Should they modify the requests in some way? Does Google desire
different verbiage in court orders now?
Google is currently silent on the matter. But the statements that
Google will not take action may be communicating all that victims may
now expect: Your removal requests may be futile.
Should search engines be immune from defamation removal demands?
To a very large degree, search engines have become the internet. If
something is not indexed by Google or Bing, or it isn’t searchable and
prominent within the search engines, it might as well not exist.
When people are seeking information about a subject, they turn to
search engines. So, if the listings on the first page or two of search
results contain false, negative and damaging items about a subject, this
is where people are often most likely to encounter them. The search
engines are the starting point, the gateway to the internet.
Being able to remove results directly from Google largely snaps the
connection between the public and the libelous/defamatory content. This
option has been the best path for obtaining relief for many victims in
terms of comprehensiveness and speed.
Google’s suggestion that one should seek relief by going directly to a
webmaster to get the damaging content removed at the source will not
work for victims in many cases. If the originating site is also immune
under the CDA, then one may not be able to get materials removed, and
they will live on in the search results.
Consider Ripoff Report — a site that allows people to post any
claims, false or otherwise, about individuals and companies, but does
not allow people to subsequently delete what they wrote. Ripoff Report’s
policy is to never remove materials, even where one has court orders
establishing that content is completely false and defamatory.
Heretofore, one could obtain a court order to present to Google (read the definitive article on the subject, “
How To Remove Ripoff Reports From Google — Not Just Bury Them“).
Where sites like Ripoff Report are concerned, Google’s willingness to
remove URLs with court orders has been the only source of relief
available. The Section 230 protections of the CDA have resulted in many
similar situations where no one may be legally required to correct or
remove misleading and harmful materials.
In yet other cases, websites hosted in foreign jurisdictions may also
be beyond the reach of victims based in the US; the internet is a
global economy, and without a global solution for false and damaging
libel, people simply can become harmed in perpetuity.
Few victims can afford to hire attorneys in other countries where
defamation may be hosted, and some other countries may not provide the
legal protections established through hundreds of years of tradition and
precedent that are found in western countries. (Ironically, a person
with dual US/EU citizenship might be able to legally require Google to
remove damaging materials from being viewed by searchers within Europe, but not from searchers located within the United States.)
If the only solution available is to take court orders to the
websites where defamatory materials are published and persuade them to
remove the stuff, then costs increase for victims, as their attorneys or
online reputation agencies must go to many sites to remove stuff,
rather than to a single source.
I’ve seen multiple cases where defamatory content was spread across
hundreds and even thousands of URLs. Instead of communicating with one
entity, representatives must go to many, monitor them to see if they
comply and follow up when they don’t.
Inevitably, removal of defamatory content will also take longer if
Google does not assist. Even if you persuade an originating website to
remove something, the listing for it and cached version of the page can
live on in Google’s search results for months or even years, continuing
to damage one’s reputation. (Professionals may also circle around to ask
Google’s automated system to remove the URL due to the page being
removed, or one may request the Googlebot to respider the page to update
the cached copy to eliminate removed content.)
The human cost
Most people do not feel strongly about online reputation attacks.
That is, until their own reputations become impacted by some negative
things.
Those of us who work on these sorts of cases are aware that everyone
is vulnerable to significant damage from misrepresentation. Many have a
notion that they are good people, and therefore do not expect to have
their reputations attacked in any way. But it only takes one obsessed
customer. One crazy ex-girlfriend/boyfriend. One disgruntled employee.
Once someone libels you on the internet, there’s a very good chance
that the materials may find their way up on the first page of search
results. Many people make the mistake of thinking that if they avoid
having much about themselves on the internet, their reputation and
privacy are protected. But privacy and reputation are separate and
frequently unrelated entities. So, when something negative gets
published into the mix, it can abruptly become prominent.
Your data privacy is maybe intact, but your public reputation can be
trashed. Even when one has a strong and established web presence,
negative materials can often have an unfair advantage in rankings. Tomorrow, you can wake up and have your reputation ruined.
Online lies can be horrific to endure. They can be so malicious.
Imagine you’re the brilliant doctor who is falsely accused of
malpractice. You are the business accused of being a scam and cheating
your clients. You’re falsely accused of doing shoddy work. You’re
accused of being a Mafia collaborator, a Nazi sympathizer, a pedophile, a
nymphomaniac, a rapist or an adulterer. (This isn’t merely melodramatic
hyperbole on my part — I’ve worked on cases where people were falsely
accused online of each of these things.)
When the lie is the thing that defines your identity, then you lose
business, your company fails, and you cannot make new relationships. It
can affect everything about your life.
Defamation victims experience deep depression and sometimes consider
suicide. Due to the frequency of psychological distress associated with
online reputation issues, I interviewed a psychologist, and I refer my
reputation clients to them. This stuff takes an extremely heavy toll on
people. I’ve had clients who genuinely feared going out to restaurants
because they had been accosted by people who had read and believed
misrepresentation posted online about them.
In a completely opposite direction last year, Google
announced
that they would accept removal requests for revenge porn — without even
a court order being required. However, a number of porn revenge victims
I’ve assisted had instances of defamatory written statements on various
web pages in addition to images and videos published to harm them. So,
ironically, Google’s current policy shift will make it so that these
victims can theoretically get their images taken out of search with just
a note to Google, while related defamatory written content might not be
removed, even with a court order.
If this new paradigm becomes status quo, the attorneys expert in
these matters will likely halt assisting new clients, because there will
be no way to reasonably predict positive outcomes, and risk of failure
will be too high. If you’re defamed on Ripoff Report, which has over two
million reports posted, you’ll be out of luck. Your only recourse in
that case may be to change your name, as Google’s Eric Schmidt once
infamously suggested. So, defamation victims in the future may find less legal representation available to assist them.
In multiple cases I’ve worked on, reputation attack victims were
subjected to extortion. They were threatened that if they did not pay or
do something demanded, then an individual would ruin their reputation
online by posting falsehoods or private information about them. When
they did not pay up, the extortionist followed through, harming them
severely.
Here’s an example:
“Convicted Search Engine Optimizer Indicted For Retaliating Against Former Victim.”
While dramatic, this sort of case where the threat of online damage is
used to extort people is not all that uncommon. In another example, one
of Google’s own employees was
arrested and convicted for attempting reputation extortion to compel women to send him nude photos.
By revoking recourse to have defamatory listings removed, Google will
be effectively enabling more criminally minded people to use the search
engine’s inflexibility as part of their extortion schemes. Google’s
policy change is exposing the large legal loophole created by the CDA:
One may launch terrifically damaging materials, and those can rocket up
in visibility and never be removed.
Companies threatened by this may decide to simply pay up, rather than
risk having to shutter, go bankrupt or lay off employees. It’s
satisfying to have extortionists arrested and convicted, but from a
business point of view, it’s a losing proposition if you can’t undo the
evil damage that has torpedoed your company.
There’s always the “Eric Schmidt solution”: change your name. But
changing one’s name to side-step online reputation damage is very
costly, too — in terms of money and/or emotional currency.
If you’ve witnessed the costs for a company with a well-established
brand name to change that name, you’ll know that this can be extensive
and risky — replacing all signs, logos on letterheads, business cards,
products, websites — all while losing the equity and recognition built
in the name. I’ve also had a porn revenge victim that elected to change
their name; it’s not an easy process, fraught with all sorts of issues
you can’t foresee, and very difficult to explain to all who have known
you by your original name.
Even when you go through a business name change, the loss of identity can sink your company. As I described in “
When Brand Names Are Destroyed By Damaging Doppelgangers,” some companies don’t survive this process, since it’s like starting all over with an unknown name.
So, there’s nothing simple about a name-change, and one may not have
the necessary amount of money on hand to even make that work.
Is Google liable? Or could the immunity of the CDA be revoked?
I’ve long thought that Google chose to act upon defamation removal
requests out of a desire for self-preservation. I thought it was a
calculated strategy both to avoid risks of legislature removing some of
the immunity provided by Section 230 of the CDA and to reduce lawsuits
that they might have to face from desperate people. The immunity
provided by the CDA is a huge value to Google, and processing of
defamatory removal requests is a relatively small price to pay.
It’s possible for the legislature to modify the Section 230
protection. As I described above, it has enabled situations where
horribly damaging false content can be published, and there’s no
effective way to help the victims.
It’s possible for legislators to wake up to this and to try to
address the lacuna in the current laws. I think all it might take would
be a handful of defamed children of congressmen and senators, and
legislators might become very motivated to take action.
There is also the fact that the largest search engines are quite
different in nature than smaller forum operators, and even the social
media services. The search engines are not the equivalent of small
libraries or booksellers (which are considered “distributors” and
therefore not responsible for the content they have under offline
defamation assessments); they are frequently the doorway of the
internet.
And the search engines are large enough to be able to afford the
costs and the scale of evaluating removal requests. Demonstrably, Google
has been absorbing these costs for the better part of a decade, at
least, while their stock value has consistently risen across this
period. So concerns about absolving them from the costs of handling
defamation are likely minor and irrelevant.
Assisting online attack victims should perhaps be considered the cost
of success. The search engines bear responsibility for the policing of
the internet by making themselves so very central to people’s online
activities. They created this large, public marketplace, so they
inherently bear some responsibility for it.
Why should they declare themselves responsible for making the
internet faster, or for safeguarding privacy by browbeating webmasters
into using SSL (secure sockets layer), or trying to make the internet
more secure by flagging or suspending websites for malware — and then
turn about to disavow any responsibility at all for defamatory content
they index that destroys companies and lives? The omnipresence they’ve
created means they must share some responsibility.
The search engines have to employ removal evaluation staff anyway,
because they are also receiving many other types of legal removal
requests, such as in instances of trademark infringement, copyright
infringement and personal privacy issues. There has been something of an
imbalance in how the US has provided a high level of immunity around
defamatory liability to online distributors/publishers of third-party
content, while simultaneously ensuring the interests of big business are
represented by making those same types of sites handle copyright
infringement claims.
There are also alternative options for addressing the costs, if that
is the driving reason for suspending assistance. As I pointed out last
year, it should be possible for Silicon Valley companies to set up a
commonly supported
online reputation clearinghouse that they could all utilize to share the evaluation costs.
Take-down requests could be sent to a single location, evaluated, and
then acted upon by the major players in concert with one another. This
would potentially save on costs for all of those companies and also
reduce some costs for reputation attack victims. Sure, this requires a
level of cooperation among big tech companies, but the rewards could be
significant. Costs of evaluations of removal requests are not going
away.
One attorney I spoke with stated that he would even be happy to pay a
fee to Google for submitting removal requests. He acknowledged that
there are costs involved for the search engines, and a handling fee
might be reasonable — especially if the alternative is to lose any real
substantive recourse.
There is a possibility that Google’s abrupt about-face on these
requests may open them up to legal liability now, in spite of the CDA
protections.
One might argue that Google’s long practice of honoring court-ordered
defamation removals was an implicit acknowledgment of responsibility
and liability for content presented through search results. Or a claim
could be made on the basis of promissory estoppel — that attorneys and
individuals have been reasonably assured by long practice that Google
will remove content based upon court orders specifying defamatory
content, and this abrupt and seemingly arbitrary suspension of that
policy is wantonly damaging.
Some of the instances where Google denied take-down requests have
happened after victims pursued months or years of litigation to obtain
court orders, and they did this with the reasonable expectation that
Google would take action. These people are arguably damaged because they
based their decisions to litigate on Google’s years of consistent
policy.
The timing for Google’s change in practice is surprising, because the
legal climate around defamation laws is less certain right now. Back in
February,
Donald Trump made a campaign promise that he would “open up” libel laws, making it easier for famous persons to sue the press.
Even more recently,
Melania Trump is involved in a defamation lawsuit,
claiming the press and a blogger have made false and damaging
statements against her. As things currently stand, it’s conceivable that
Mrs. Trump could win her case, but if her defamatory content were
replicated on sites like Ripoff Report and elsewhere, then the content
could live on, easily accessible via Google search results.
Is it realistic that Trump might be able to change libel laws, and,
if so, could it provide greater protections for all individuals or
lessened immunity for web companies? It’s purely speculative, but the
incoming administration definitely has a conservative philosophy about
unfettered speech, and their party is in charge of both the Executive
and Legislative branches of government. One has the feeling that they
can enact any changes to the law that they might wish. And one can
imagine they might be motivated if Mrs. Trump were to find herself
balked subsequent to winning her case in court.
Conclusion: Inconclusive, for now
So, how should the online reputation management industry respond to
Google’s recent de facto paradigm shift? Will they begin to grant such
requests again, with the same level of consistency?
Some types of websites and online services will respond to
court-ordered defamation removal requests. I suggest that one first send
those court orders to every single site and ISP where defamatory
material is specified.
After you’ve gotten as much removed at the website level as possible,
then follow up with a submission of remaining URLs to Google,
explaining you have attempted to get everything removed but you cannot
do anything about the remaining URLs, and plead for them to take those
last URLs out of search.
Please let me know if you are successful, and I may post a follow-up report later.
Likewise, if Google later responds, we will try to post an update on this article.
