The Volokh Conspiracy

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Free Speech

Is Wrongful Search Engine Optimization a Tort?

An anonymous lawsuit claims that it's tortious to try to artificially boost the prominence of an embarrassing article.


In 2004, John Doe sued his employer, claiming that the employer allowed Doe to be harassed based on Doe's religion (Islam). The lawsuit was covered by the Chicago Tribune, the Chicago Sun-Times, and the Kankakee (Illinois) Daily Journal; the Council on American-Islamic Relations also published an article about the lawsuit. The Chicago Tribune article accurately reported that, according to the Complaint, after Doe

was written up for threatening behavior, another allegation he denied, a general manager questioned him about his national origin and his views on the Sept. 11, 2001, terrorist attacks.

Because this was an accurate report of a court filing, it couldn't be treated as libelous or as putting Doe in a false light. (Accurately reporting others' accusations may often be libelous, but generally not when you're reporting accusations filed in court; that's an aspect of the so-called "fair report" privilege, and Illinois recognizes a broad version of that privilege.)

This 2004 lawsuit was not anonymous, and the newspaper articles mentioned Doe's name, which seems fairly uncommon. I'm calling him Doe now because the new lawsuit that I'm writing about was indeed filed anonymously.

Then in 2016, when Doe was looking for a new job—and not doing as well in the search as he thought he would—he Googled himself, and saw the Tribune and Sun-Times articles. He thought that the articles might make him look bad to employers, because they might make him seem either litigious or physically threatening. He then asked the newspapers to remove the articles; the Sun-Times did, but the Tribune didn't. According to the complaint, "At that time, the Chicago Tribune Article appeared on the seventh or eighth page of Internet search results for the Plaintiff's name on"

Then Doe (again, according to the Complaint), "contacted a reputation management company to minimize the appearance of the Chicago Tribune Article in Internet search results for his name." Doe thought the company's price was too high, so he didn't hire them. But then,

Sometime later, the Plaintiff noticed the Chicago Tribune Article rapidly rising in rank in Internet search results for his name [to #1 in the search results].

The Plaintiff also noticed that Kankakee Daily Journal Article newly appeared in Internet search results for his name [on the first page of the search results].

The Plaintiff also noticed that CAIR Article newly appeared in Internet search results for his name [also on the first page].

The Plaintiff also noticed other, new webpages containing exact excerpts from the Chicago Tribune Article appear in Internet search results for his name …. [T]he websites on which the New Webpages appeared did not relate to news at all. For example, a blog for an auto body repair shop [with whom Doe was completely unconnected] appeared in Internet search results for his name … [and] contained language copied from the Chicago Tribune Article.

No organic or natural renewed public interest in the Plaintiff, the Lawsuit, or the Lawsuit Articles had occurred. Yet, new websites appeared harvesting content from the Chicago Tribune Article. Indeed, search results for the Plaintiff's name rapidly changed in an unnatural and dramatic manner to emphasize the Chicago Tribune Article and other webpages referencing the Lawsuit and embarrassing content about the Plaintiff.

So, in 2018, Doe sued the unknown person who had orchestrated this, seeking damages and an injunction ordering defendant to undo the search engine optimization. (The reputation management company had "denied any involvement in affecting the search results.") The theories were:

  1. False light invasion of privacy. "[T]he Defendant sought to emphasize Internet content that falsely portrays the Plaintiff as engaging in threatening behavior" and "that also falsely portrays the Plaintiff as an undue litigation risk to potential employers."
  2. Intrusion upon seclusion. "Given the age of the article and events from 2004, as well as its placement in search results, the Lawsuit Articles and content associated therewith fell within near-obscurity in the context of Internet use. [T]he Defendant brought forth obscure articles and content securing their placement on the first page of search results for the Plaintiff's name."
  3. Tortious interference with prospective economic advantage. "The Defendant … [intended] to harm the Plaintiff," by "direct[ing] third parties away from doing business with the Plaintiff and … dissuad[ing] potential employers from hiring the "

This, I think, can't be right: The newspaper articles accurately reported court filings, and even if the employer's allegations discussed in the filings (that Doe "was written up for threatening behavior, another allegation he denied") were false, the fair report privilege—which usually arises in libel cases, but also applies to false light cases—protects accurate summaries of court documents, including complaints. (Even independently of that, accurately quoting plaintiff's own statement cannot be defamatory.   "[A] party's accurate quoting of another's statement cannot defame the speaker's reputation since the speaker is himself responsible for whatever harm the words might cause…. The fact that a statement is true, or in this case accurately quoted, is an absolute defense to a defamation action." And the same should apply quoting plaintiff's lawyer's words in the complaint filed on plaintiff's behalf.)

Now it turns out that, in some states, a showing of "motive to harm another" may indeed overcome the fair report privilege. Indeed, this historically was the general rule, though the modern cases depart from it. That theory might actually fit well a lawsuit such as Doe's (at least when the SEO-promoted newspaper article quoted a court document other than Doe's own complaint). But in Illinois, the privilege applies without regard to the speaker's motive (or to whether the speaker knew that the statements in the court documents were false or likely false).

Generally speaking, the various libel privileges also apply to interference with prospective economic advantage claims based on allegedly false or reputation-harming statements. "[W]here claims such as tortious interference and disparagement are based on statements that are qualifiedly privileged under defamation law, the protection afforded those statements … must also apply in the derivative claims." "As with defamation actions, where the conduct allegedly causing the business interference is a defendant's utterance of negative statements concerning a plaintiff, privileged speech is a defense." Illinois precedents are not entirely clear on this (compare Zdeb v. Baxter Int'l (Ill. App. Ct. 1998) with Turner v. Fletcher (Ill. App. Ct. 1999)); but Illinois law also sharply limits the interference tort to situations where the plaintiff can point to specific prospective business partners who "contemplate[ed] prospective contractual arrangements with the plaintiff" but then declined because of the interference—and it doesn't seem that Doe can point to such specific prospective employers. (Libel law doesn't require such evidence of specific prospective business partners, because it rests on the theory that defamatory statements will often damage reputation and business prospects in ways that are hard to pin down; but libel law, as I mentioned, is definitely limited by the fair report privilege.)

Finally, the intrusion upon seclusion claim is also a loser: It requires that "the matter upon which the intrusion occurs is private," and court filings aren't private. Classic "examples forming the basis for the tort include invading an individual's home; an illegal search of his or her shopping bag in a store; eavesdropping by wiretapping; peering into the windows of a private home; and persistent and unwanted telephone calls." But highlighting published accounts containing information from public court filings wouldn't qualify. Indeed, the intrusion tort is generally focused on intrusive techniques of gathering information about a person, as well as on access to the person's private space; the disclosure of information about a person is generally the province of another of the "invasion of privacy" torts, disclosure of private facts—but that tort also can't be applied to public record information.

But at least so far, we haven't gotten a substantive ruling on these theories. Doe first sued in federal court, on the theory that the defendant and Doe were citizens of different states. But Magistrate Judge Eric Long ordered Doe to explain why the court has jurisdiction:

"Because the existence of diversity jurisdiction cannot be determined without knowledge of every defendant's place of citizenship, 'John Doe' defendants are not permitted in federal diversity suits." Howell by Goerdt v. Tribune Entertainment Co., 106 F.3d 215, 218 (7th Cir. 1997). While there are exceptions to this rule, none apply here. It is not an exception that Plaintiff does not know the defendant's name.

Doe then dropped the federal lawsuit, sued in Illinois state court, and sought discovery of the defendant's identity. Just last month, he dropped the case, though I can't be sure whether it's because he gave up, because he found the defendant and got the defendant to settle the case, or because he found the defendant and plans on suing the defendant elsewhere. If Doe does refile the lawsuit, though, we may hear more on the underlying tort law (and First Amendment) questions.