The Volokh Conspiracy

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Volokh Conspiracy

The reverse Streisand effect

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From O'Kroley v. Fastcase (6th Cir.) (some paragraph breaks added):

Colin O'Kroley googled himself and did not like the results. "Texas Advance Sheet," an entry read, followed by the words "indecency with a child in Trial Court Cause N . . . Colin O'Kroley v Pringle."

Truth be told, O'Kroley was never involved in a case about indecency with a child. What had happened was that his case, O'Kroley v. Pringle, was listed immediately after another case, a child-indecency case, on the Texas Advance Sheet, a service that summarizes Texas judicial opinions. If users clicked the Google link they would have seen how the Texas Advance Sheet works and would have seen that the two cases had no relation. But if they did not click the link and stayed on Google, they would see only the name of his case and the description of the other case separated by an ellipsis.

Claiming "severe mental anguish" from the listing, O'Kroley sued Google (and a number of other entities) for $19,200,000,000,000 (that's trillion), on causes of action ranging from "libel" to "invasion of privacy," from "failure to provide due process" to "cruel and unusual punishment," from "cyber-bullying" to "psychological torture."

The Sixth Circuit makes short work of O'Kroley's lawsuit; among other things, Google is immune from liability under 47 U.S.C. ยง 230 (it was just accurately quoting what the Texas Advance Sheet said, including the ellipses), and Fastcase - the author of the Texas Advance Sheet - wasn't properly served. Moreover,

On the frivolous side: He asks us to strike down the Communications Decency Act ("as a simple matter of logic"); he claims violations of the Eighteenth Amendment (the former prohibition on alcohol repealed long before the Internet came into being); he asks us to add Georgetown University as a defendant (because it might be using this case in its "Robots and Law" class); and he contends the judges below were "biased" against him (because "[t]hey may be ignorant about the English language"). To restate some claims is to reject them.

But here's an interesting twist, in the closing:

In most respects, O'Kroley didn't accomplish much in suing Google and the other defendants. He didn't win. He didn't collect a dime. And the search result about "indecency with a child" remains publicly available.

All is not lost, however. Since filing the case, Google users searching for "Colin O'Kroley" no longer see the objectionable search result at the top of the list. Now the top hits all involve this case (there is even a Wikipedia entry on it).

So: Even assuming two premises of this lawsuit are true - that there are Internet users other than Colin O'Kroley searching "Colin O'Kroley" and that they look only at the Google previews rather than clicking on and exploring the links - it's not likely that anyone will ever see the offending listing at the root of this lawsuit. Each age has its own form of self-help.

Funny, and a twist on how libel law is supposed to work, at least in some cases. Historically, if someone libeled me, and I won the lawsuit with a finding that the accusations were false, some people who heard the original accusations would then hear of my vindication, and my reputation would be in some measure restored. In practice, things rarely worked out that way, for many reasons. But here, it looks like O'Kroley did indeed get something kind of like that remedy.

Thanks to Disclosure: I have at times represented Google in my capacity as a lawyer, though not on anything related to this case.