The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Companies and people seem to be trying to hide online materials that criticize them—and that includes material in professional publications, such as the New York Daily News, TV station websites, Gizmodo and the like. They are not suing those publications, alleging that critical stories are defamatory: If they did, those publications would likely fight back, especially since many of the stories are in fact likely to not be defamatory.
Instead, they sue commenters who post allegedly defamatory material. They often get default judgments against "John Doe" defendants, when the commenters are anonymous; sometimes they get stipulated judgments, to which the commenters agree. And then they send these judgments to Google, asking Google to deindex the whole page, which includes not just the allegedly defamatory comments but the critical story itself. (In the cases I note below, it appears that the plaintiffs didn't even first ask the media outlets to delete the allegedly defamatory comments, which supports my suspicion that the real goal was to get the critical story hidden.)
Indeed, this practice creates an obvious opportunity for abuse: Plaintiffs—or "reputation management companies" that they hire—could themselves arrange for the posting of the allegedly defamatory comment, to have an excuse to get the entire critical article deindexed. But even if none of these plaintiffs took advantage of this opportunity, and instead targeted genuine defamatory comments, the procedure still seems like an attempt to hide serious and credible criticism of the plaintiffs.
To Google's credit, it seems to be extremely reluctant to deindex such professional media articles, especially in situations where it appears that there hasn't been a real determination that the articles themselves are defamatory. Such deindexing of professional media articles by Google sometimes happens, but only very rarely.
Still, the very fact that the attempts are taking place highlights the importance of reporting on this practice. And that is especially so given the Hassell v. Bird case, in which the California Supreme Court will decide whether courts can require Internet companies to implement any court orders that are sent to them, rather than exercising their discretion to decide which orders may be the result of questionable processes such as these. After all, if Google had been bound by the orders discussed below, even though it wasn't a party to those orders (as the logic of the California Court of Appeal decision in Hassell v. Bird suggests Google would be), then it would have had to deindex all the articles I describe.
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Let us have a look at three examples.
1. Edwin Young is a prominent Texas minister and founder of the Fellowship Church; he has written many books, such as "The Marriage Mirror—Reflecting God in Your Marriage." In 2010, though, WFAA, a Dallas TV station, ran a story titled, "Prominent Grapevine pastor linked to luxury," which began:
Not long ago, the Fellowship Church in Grapevine was one of the largest and fastest-growing churches in the nation.
Its pastor, Ed Young, was making national headlines by encouraging married couples to have more sex.
But since that time, sources say membership has waned and some say Pastor Young may have lost his way putting himself and secrecy over God….
One former staff member who says he was close to Young but wishes not to be identified, described it this way: The lack of accountability. The lavish lifestyle that keeps increasing, while the attendance keeps decreasing.
Over the past few weeks, News 8 has been in contact with a number of individuals who were once close to Young at his massive Fellowship Church in Grapevine, disturbed by his direction and treatment of staff….
Of course, if these allegations were false and defamatory, they might well have warranted a defamation lawsuit against the TV station. But no such lawsuit was filed.
Rather, four years later, this comment by a user called "Noemi Perez Hernandez" appeared below the story:
The pastor is a homeless man who lives in a van down by the river and is not one who flies on private jets. He is known for abandoning a child 65 years ago with willful intent and this resulted in the destitution of the child 65 years ago. The childs name was Bernard Johnson and this is his biological son.
The comment was indeed pretty clearly false, but almost absurdly so. The news story described Edwin Young as a rich man—indeed, the question was whether he was richer than a pastor ought to be—who was "splashy and hip," and who is "jetting around the country" in an $8 million private jet. The comment suggested that Young was a homeless man who was at least about 80 years old. I doubt that anyone would have read the story with the comment and would have believed the comment.
But in any event, three weeks after the comment was posted, a lawsuit was filed in Florida state court by lawyer Zachary Sloan against "Anonymous John Doe 1." (Zachary Sloan had also filed a lawsuit on behalf of Profile Defenders, the reputation management company implicated in the apparently fake defendant / pro se plaintiff cases that Paul Alan Levy and I blogged about; but that lawsuit didn't itself fit the pattern described in Paul's and my post, and the cases that I discuss here likewise have a different pattern.)
The Affidavit of Diligent Search, which is required to show that the plaintiff actually tried to identify the defendant, says (plausibly) that plaintiff has reason to believe that the comment was posted under a pseudonym. But the Affidavit says nothing about any attempt to find the commenter's real name, for instance by serving wfaa.com with a subpoena to try to get the commenter's Internet Protocol address, which can sometimes be used to track down the commenter's real identity.
Instead, Sloan went through "service by publication," in which a notice was published in a local Florida newspaper announcing the action—a legally permissible method of service when a defendant is unknown, though one that's highly unlikely to actually inform the real defendant that there's a lawsuit. And he then got a default judgment, which specifically authorized the plaintiff to submit it to search engines to have the page at http://www.wfaa.com/story/news/local/investigates/2014/08/06/13492060 deindexed—and that page contained both the article and the comment. The order and the URL was indeed submitted to Google; to my knowledge, Google didn't act on the request, though it appears that WFAA deleted the story from its online archives in some site redesign measure, for reasons completely unrelated to the lawsuit. (The story is now back in the online archives.)
When I got in touch with the author of the article, he told me that he and his employer had never heard of the lawsuit, and had never gotten any request to get the allegedly defamatory comment removed—which is consistent with my conjecture that many of these lawsuits are really aimed at getting the underlying article deindexed. I e-mailed the lawyer, Zachary Sloan, and the client, Edwin Young, for their side of the story, but got no response.
2. Zachary Sloan also filed another similar case in Florida court, this one aimed in part at deindexing articles in Gizmodo, TechDissected, and DigitalTrends. Sloan's client, M & M Inc., was distributing a laundry product called Crystal Wash. Various writers were unimpressed; Gizmodo, for instant, published an article titled "This Kickstarter Is Clearly Just a Marketing Scam from the 90s"—here's an excerpt:
CrystalWash 2.0 claims that its laundry balls clean as effectively as detergent by shrinking water molecule clusters and producing hydrogen peroxide from rubbing ceramic against water. Ding ding ding! Is your bullshit detector going off yet? It should be. The whole idea of re-structuring water is a well-known scam that has been debunked by actual scientists.
Again, Sloan brought a lawsuit based on alleged libel in the comments, though this one against a named person, Aubrey Brooks. Brooks stipulated to being the author of the comments, and Sloan got a consent judgment based on that stipulation. That judgment likewise specifically authorized the plaintiff to submit it to search engines to have certain pages deindexed, and those pages contained both the articles and the comments.
The comments were again used as the tail to wag the dog. Had M & M and Sloan really just wanted to get the comments removed, they could have easily sent a copy of the judgment to Gizmodo and the other sites, and asked that the comments be removed (with the threat of trying to get the entire page deindexed if the comments weren't taken down). But apparently no such request for removal of the ostensibly defamatory comments was made, which suggests that using the comments to get the entire article removed was indeed the plan all along. I likewise e-mailed the lawyer and the company for their side of the story, but got no response.
3. But this isn't just Zachary Sloan's project. Consider Shavolian v. Anonymous John Doe 1, another Florida case, this one filed by lawyer Steven Andrews. David Shavolian is a New York real estate businessman who was the target of a workplace harassment lawsuit; the New York Daily News reported on the suit, with a headline that read, "Boss made her stand beside him while he urinated: harassment suit."
Some months later, an anonymous comment was posted on that story, deep amid many other comments, saying (falsely) "I know the jerk he was also arrested 3 times for dealing with drugs in the past 2 years." Shavolian, represented by Andrews, then filed a lawsuit against the anonymous commenter, and got a default judgment authorizing him to "submit this Order to Google, Yahoo, Bing or any other Internet search engine to have the Digital Defamation removed from that search engine's search results." There too there was no attempt to inform the New York Daily News to get just the comment removed. (I did reach Steven Andrews with regard to this.) Rather, the judgment based on the comment was submitted to Google, with a request to deindex the New York Daily News article. (Mike Masnick (techdirt) covered some related aspects of the case in mid-2015.)
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So three cases, three examples of people trying to get stories in professional publications to disappear from Google searches—even when there's no proof that the stories themselves are defamatory. (There are problematic attempts to deindex even nonprofessional criticisms, such as consumer complaints on consumer gripe sites. But I focus here on attempts to deindex articles in professional publication, because the dangers of hiding valuable, nondefamatory material are especially clear there.)
The process itself may well be consistent with court rules, with no fake defendants or other false assertions. But it should remind us that default judgments and stipulated judgments come with even less assurance of accuracy than normal civil litigation provides.
Such judgments might sometimes be fair ways of resolving the dispute between the parties; for instance, if you stipulate to a judgment, you might rightly be stuck with that stipulation. Yet it's dangerous to use those judgments to resolve the rights of third parties, such as news sites to which someone posts a comment.
I'm glad that Google tends to look askance at such judgments, especially when a comment is used as an excuse for getting a whole article deindexed. But people are still trying to use this technique, hoping that Google (or whomever else they send the order to) falls for it.