At the end of December, I reported at Search Engine Land on what what seems to have been a major change in Google’s internal policy. (See: Paradigm shift: Has Google suspended defamation removals?) Google has effectively begun to decline requests to remove defamation from its web search results, although it has been honoring those takedown requests for many years now, when accompanied by properly-executed court orders.
While I phrased the title of that article “Has Google…” and ended with a question mark, the reality is that the company has completely stopped removing URLs for defamation. The Search Engine Land editors and I opted for that interrogative title phrasing because Google declined to make any official statement about the matter. This lack of transparency around this has created a lot of consternation among attorneys who deal with online defamation, along with their clients — I polled a number of attorneys across the country and consistently found they had all encountered a change in their dealings with Google in the past few months. It seems that some stuff that was already being processed prior to Google’s apparent policy change may still be acted upon, but most new requests are getting denied with no reason provided.
As I outlined in the article, the past year has seen some significant news around alleged instances of frauds perpetrated upon courts by attorneys and/or online reputation management agencies. I cited claims made by Pissed Consumer about court orders obtained to remove their pages based upon “stooge defendants” and fake/sham lawsuits. A number of readers subsequently brought to my attention a series of other articles on the matter by Paul Alan Levy and Eugene Volokh where they had identified a number of other lawsuits that centered around similarly suspect defendants, and the goal seemed to be to engineer a quicker and easier path to obtaining court orders to remove pages from search results:
From the listing of cases outlined in these articles, one might well assume that perhaps all defamation removal requests submitted to Google could have been similarly trumped-up on artificially-engineered defendants and court orders. But, that’s not so. There are plenty of highly-ethical attorneys who take their responsibilities seriously and have submitted real, valid, properly-executed court orders to Google requesting removal of URLs that falsely defame people and companies. Victims and their attorneys are unlikely to publicize when they prevail in legal cases and takedown requests, because attracting publicity to such activity could well induce the Streisand Effect, undermining the reparative activities they’ve undertaken in improving their reputations.
So, if it wasn’t clear from my article, Google has suspended most takedowns from the goodguys now, as well as from the bad.
Eric Goldman has also pointed out that Google’s legal department may be looking beyond just their own cases involving takedowns, such as in a case decided upon by the California Court of Appeal back in June of 2016, where Yelp was ordered to remove reviews that were found to be defamatory. (See “Yelp Forced To Remove Defamatory Reviews – Hassell v. Bird“.) The Hassell v. Bird case involved an instance where a trial court had found in favor of the plaintiff that a review was defamatory and the defendant defaulted — did not show up to defend against the accusations. Yelp complained that they were being ordered to take action despite not being a party in the original case, arguing that they should have been able to contest some of the claims in that earlier litigation. The appeal court’s opinion seemed to enable a path whereby some defamation claimants might be able to exert legal pressure to make (California-based) content-distributor companies remove stuff with court orders obtained through ex parte / default judgments of the very sort that were investigated and reported on in the Volokh and Levy articles where such judgments were obtained with the apparent goal of removing content from Google web search.
Goldman, who appears to be an apologist/defender of Section 230 protections, makes some points about how the Court of Appeal’s decision in the Hassell v. Bird case seems a bit circuitous in arriving at making Yelp more accountable for a third-party’s reviews posted there in light of the CDA protections for user-generated content sites, all while ignoring that the defendant might be legally compelled and able to remove the offending reviews themselves without requiring Yelp’s intervention. (I simplify — Goldman outlines a number of different legal contentions involved in this case.) From a legal standpoint, Goldman seems to make some good points, although I disagree that default judgments are necessarily an “unreliable” path to justice — since there are instances precisely like Hassell v. Bird where a defamation case defendant will decline to appear in court — if someone can avoid court costs and potential loss of a case by merely not showing up, everyone would do this — critics of ex parte cases neatly avoid proposing alternatives. But, the aspect we’re interested in is whether Google and other Section 230 protected sites and service providers might find cause for concern by the appeal court decision.
Some are speculating that the decision in that case influenced Google’s move to halt court-ordered defamation removals. However, it’s clear that Google has already historically considered itself immune under Section 230 regarding defamation removal court orders, and I can’t see them putting the breaks on their voluntary removals policy merely to abruptly start making a legal point — no, this was much more likely to have been done as a response to the handful of cases where defendants may have been faked-up in order to short-circuit the legal process and obtain court orders to fuel takedowns in a cheaper manner or in instances where there would have otherwise been no legal basis for a defamation finding.
Google’s move seems to communicate that they may have become frustrated with an inability to discern valid, well-executed defamation removal requests from those bad ones that have been trumped-up through unethical means.
This is unfortunate, because, as I had described, Google’s abrupt policy change is a terrible development for present and future defamation victims. People who have been damaged by outright lies, fabrications, exaggerations and malicious publication of private personal information suffer loss of business, inability to obtain employment, and difficulties in making new relationships. This is often not a situation where justice is being meted-out in terms of people necessarily deserving to have a bad reputation.
I think the staunch defenders of Section 230 protections would do well to recognize the suffering of individuals and businesses when there’s absolutely no avenue for relief. While the economic advantages of keeping costs lower for companies is certainly a valid and admirable concern, that also needs some degree of balance rather than the apparent attitude that victims in these cases are some form of acceptable collateral damage in return for us all being able to search for celeb images and use our iPhones. As I opined in the Search Engine Land article, these companies already have substantial staff devoted to processing legal removal applications for bigger business interests like copyright violations, and there are potential ways user-generated content sites could save on processing legal removal requests. This is not an either-or scenario where we must choose between victims of false accusations and companies providing useful services.
What one would hope would be for Google to simply limit the granting of removal requests by only suspending consideration for the attorneys and legal cases involved in unethical manipulation, similar to how the company penalizes websites that are found to be using black-hat SEO methods and spamming the search engine. Google has differentiated websites that are bad players versus good through many sophisticated methods. One would wish that they would apply similar sophistication towards evaluation of defamation removals, too, and not slam shut the door to relief for all victims.
One also rather hopes and expects that complaints might be filed against attorneys and other individuals that have cooperated in schemes to deceive the courts — what appears to have been done in some instances is serious enough to merit criminal penalties. The entire community has an interest in removing the bad players from the equation.
Meanwhile, as things currently stand, the only viable option for defamation and reputation attack victims will be to contract with the services of reputable online reputation management (a.k.a. “ORM”) firms and work towards displacing the negative materials with positive or neutral things.
UPDATE: Eugene Volokh has now written an article reporting on my article and also commenting on it. In my article, I stated clearly that Google suspended their approvals, but not in every single instance — he quotes the Techdirt article about my article, saying “Google seems to have stopped responding to defamation lawsuit orders,” and he says that characterization is “something of an overstatement”. Like him, my contacts at Google also state they haven’t completely halted, and attorneys involved say a little activity is still happening. But, from the samples of cases I’ve seen, there are legit cases getting denied, just as I had described.