The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Steve Taplin (of Entrepreneur Realty) is a real estate agent in Arizona. He had solicited some business in California, and wound up with a 2010 desist-and-refrain order from the California Department of Real Estate.
Then, in November 2015, Taplin sued a Carl Williams in Arizona state court. The complaint, filed by Taplin without a lawyer, alleged that Williams was engaged in a campaign of defamation against Taplin, allegedly because of a dispute over some online advertising; the complaint listed the URLs of several allegedly defamatory sites. At least one of those sites included the California order, and also the text of State v. Taplin, a Georgia state case dealing with a criminal prosecution aimed at (as best I can tell) a different Steve Taplin. But there seems to have been a plausible case that the sites were indeed defamatory, and posted by Williams.
But in March 2016, Arizona lawyer Nino Abate stepped in to represent Taplin. And in August 2016, Abate did get a default judgment; here are the last four URLs listed in that judgment, out of a total of 14:
That's right—the default judgment included the URLs of the California order (housed on a California government page) and the Georgia appellate decision (housed on findlaw.com, a private service that provides free access to court opinions). The URLs weren't included in the complaint. They clearly hadn't been posted by Williams. They weren't defamatory; there's no evidence that anything in them was false, but in any event they are administrative and judicial decisions, which are immune from defamation liability.
There's no basis at all for a court to order the defendant to "take all action necessary to immediately take down any such materials from the Internet and/or Plaintiff may request removal and or deindexing of all content from Google and other search engines." My guess is that the court didn't closely examine the whole list of URLs supplied by the lawyer in the proposed order—courts often don't closely examine proposed default judgment orders—but just signed off on the order.
When I emailed Abate about this, he responded,
As I understand it, the CA Department of Real Estate matter was set aside by the department and the other case, as you point out, had nothing to do with my client but were being used by the defendant to defame my client. Accordingly, these two URLs were included in the judgment after a hearing before the court.
When I talked to Taplin, though, he told me that the California matter had not indeed been set aside (he states that Abate had thought it was set aside based on preliminary communications with the California Department of Real Estate), and the department likewise confirms that the matter had not been set aside.
And in any event, neither of Abate's arguments would be a basis for an Arizona court concluding, in a default judgment proceeding, that those two sites were defamatory. That they may have been quoted by Williams as part of a defamation campaign is no basis for deindexing them—and indeed deindexing them wouldn't do anything about Williams' quoting the material from those pages in his own posts, or linking to the pages in his own posts; it would only keep them from showing up independently, as their own pages, in a Google search for Taplin's name. (When I asked Abate whether there was any discussion of the California Department of Real Estate page and the findlaw.com page at the Arizona court hearing, he responded that he had "no further comment.")
So the order was issued—and was then submitted to Google for deindexing, either by Taplin or someone using his name. And Google did indeed deindex both the California page and the findlaw.com page, so that these two government decisions were hidden from Google users. My sense is that Google policy is generally not to deindex government pages or pages on sites such as findlaw.com; I think this is one order that just slipped through, which I assume was indeed the submitter's intention. (Google has made those pages visible again, once it was alerted to the situation.)
So that's further evidence, if any was needed, of the unreliability of default judgments (or of stipulated judgments). They may be necessary tools for resolving a controversy between two parties, but there's no real assurance that they reflect any sort of objective truth. And that bears on the dispute whether third parties—who didn't have a chance to participate in the case—should be legally bound by such orders. The California Court of Appeal decision in Hassell v. Bird, now being reviewed by the California Supreme Court, held that website operators (there, Yelp, but the same logic would apply to Google) should indeed be so bound; but that, it seems to me, is a mistake.
Note that Steve Taplin asked me to note that he acted on advice of his attorneys in this matter.