Should A Site Be Forced To Takedown Content If A Court Rules Against The User?
from the a-bit-complicated dept
Back in November, we wrote about how some were trying to get around Section 230 safe harbors to get content taken offline. Basically, since a website isn't liable for the content posted by users, the upset party would file a lawsuit against the "user" often knowing that the user will never show up in court (the discussion suggested even filing it in a way against a "phantom author" to make sure no one will show up in court). Since the user doesn't show up, a default judgment is entered, and then the lawyer has a court order stating that the content is defamatory and can go to the website demanding that the content be taken down.Now, in cases where the content actually is defamatory, this setup is probably fine (with some caveats). But in situations where the content isn't defamatory and the default judgment is so "engineered," it's pretty ridiculous to then force a site to take down that content. And, in fact, Eric Goldman points out that, in one of these situations (default judgment entered, then with that in hand, requests were sent out demanding the content be taken down), a judge has sided with Ripoff Report (who didn't want to take down the content) and said that the site has no obligation to remove the content, since "Ripoff Report's relationship to the user is too "tenuous" (by entering into a user agreement for content publication) to constitute "acting in concert" under FRCP 65."
Goldman is troubled by this, as is Ben Sheffner, who sees it as a bad situation when there's a "wrong" that has no remedy. After all, the original complainant "won" their case saying that there was defamatory content -- but there appears to be no legal way to then get that content taken down! It's certainly an odd situation, but the more I think about it, I think the complaint that Sheffner makes (that this is a problem with Section 230) is entirely misplaced.
Section 230 works exactly as intended here: making sure that a third party is not made liable for the actions of others. The problem is with the default judgment process. It's a situation where there's really no "defense" for the content that was posted at all -- which is Ripoff Report's main concern. Now, there are plenty of reasons for why default judgments are granted when one party doesn't show up, but it can lead to really bad results -- such as potentially in these sorts of cases. Perhaps a more reasonable solution would be to set up a separate process that actually requires substantive review of the content before it can be forced offline -- even if the supposedly liable party doesn't show up. I recognize that opens up all sorts of other issues as well -- but it seems like the most "fair" solution: don't require takedown by third parties in default judgments, but include a separate process for establishing whether or not the content really needs to be removed. That leaves Section 230 intact, as it should be, and focuses the solution on the real issue.
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Filed Under: defamation, default judgments, liability, remedies, section 230
Companies: ripoff report
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Ham Sandwich
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We do. It's called service of process. See Rule 4 of the Federal Rules of Civil Procedure.
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Really? Feel free to explain.
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I don't see the problem in this case
Easy enough for them to post a response "We attempted to contact this complainant, however, we are unable to do so. We have obtained a judgment in our favor that this comment is defamatory. If you have a concern or issue with our product or service, please contact us so we can try to make things right."
That shows that the company/business/person is concerned enough to try to do the right thing, and to my mind would tend to make me discount the original post.
Additionally, Ripoff report makes it plain that they do not willingly remove a post, just because of this sort (and other types) of abuse. If I see one comment as I suggest above, that's one thing. If I see a string of them like that, then I will suspect the person/company/business isn't making a good faith effort to address complaints and perhaps should be avoided.
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Just a point
The informative ars technica article, http://arstechnica.com/tech-policy/news/2009/12/justice-elusive-for-chicago-family-defamed-online.ar s states that the injuction received against the poster is not enforceable against the site, since it was not joined due to Section 230 considerations.
This is a weird "catch" associated with safe harbour laws, and it's weird that ripoff report won't remove the content since their terms explicitly says no defamatory content.
That being said, the interesting piece under debate is how to "fix" the laws without setting them up for abuse.
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a default judgement is still a judgement
A default judgement is a judgement, and the service provider should be required to act if they are in the position to complete the judgement. It doesn't put them in any risk, they would only be following the court order.
I don't understand for a moment why speech that is judged to be libelous or slanderous (even through a default judgement) should be protected and remain online, only because it was hosted by a third party. If anything, leaving the posts up there and not taking the courts ruling into consideration might make it possible to show that the service provide condones and supports the message, which would then might not be "230" protected, as it would be in part their speech.
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The only remedy left is a public notice (newspaper) or a posting in the court house (depending on how things work in your area).
It's one of those things: You cannot have all the benefits of being anonymous AND all the benefits of being known. Real life isn't a buffet, you have to choose A or B, not both.
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Defamatory or not is free speech.
Would people criticizing a dictator appear in a court of law?
Somehow I doubt that.
Would Bin Laden appear in a court of law?
Would Black people in 1900 appeared in a court of law?
Would people criticizing their bosses appear in a court of law?
Would "deep throat" have appeared in a court of law right after the scandal?
Nope.
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The best way to fight defamation.
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Further, and this is important: If the anonymous poster isn't identified, and the service provider won't provide the information without court order, there is no way to know to serve the anonymous poster in Charleston (you don't know who it is), and the service provider is using Mike's "230! 230! 230!" chant to make it useless to post it in their city, so in the end, it is likely to be posted in the city or state where the offended party is located.
That is the downside and sucky part of being totally anonymous, you do in the end sort of end up shooting yourself in the foot legally.
Public postings / notices are at the court's discretion.
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putting it in the newspaper shouldn't really count anymore, i think, anyway. unless said newspaper is free and widely distributed, anyway. too likely to remain unseen.
that's my thoughts, anyway.
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As the story is presented above, it's essentially all about the procedure. It leaves out the essence of the case. That's fine for an appeals court - it's what they are supposed to do. But it's not a reasonable way to judge what's actually *right* here.
Take a look at http://arstechnica.com/tech-policy/news/2009/12/justice-elusive-for-chicago-family-defamed-online.ar s which outlines the facts. This isn't about a business complaining that they were labeled as dishonest. It's about a series of vicious postings by an ex-husband about his ex-wife and her entire family.
Nor is it about a poor innocent who wasn't informed that there was a case being tried against him. He declined to defend himself, in a case decided at the beginning of October. When people really have some legitimate reasons for not showing up in court - or can show they weren't actually served properly - they can petition for a rehearing. Nothing like that has happened here.
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Ripoff Report's Response...
I normally prefer not to comment on the outcome of specific cases. However, the "reporting" on this case has been horribly inaccurate and incomplete, to the point that it is seriously misleading people about the facts of this case and the reasons for the result. While people can and should debate these important issues, doing so based on inaccurate and incomplete facts is helpful to no one. With that in mind, here are some additional facts which may help you to reach an informed decision about the outcome of this case.
BACKGROUND HISTORY
First of all, this case involved three separate postings on the Ripoff Report site. The first two posts were made in October 2003. Links to these posts are here:
Post #1: October 15, 2003
http://www.ripoffreport.com/dead-beat-moms/megan-blockowicz-aka/megan-blockowicz-aka-megan-s-w fbbc.htm
Post #2: October 31, 2003
http://www.ripoffreport.com/Prostitutes/Megan-Blockowicz-Mar/megan-blockowicz-mary-blockow-47e 98.htm
Post #3: April 22, 2009
http://www.ripoffreport.com/liars/lisa-blockowicz/lisa-blockowicz-julie-bevans-7y56d.htm
The first two posts are the source of many of the statements which are allegedly defamatory. If you review them, you will note that both of the posts focus primarily on Megan Blockowicz. That's important because Megan Blockowicz was NOT a plaintiff in the Blockowicz v. Williams lawsuit. Rather, the only parties to that case were Megan's adoptive parents, David and Mary Blockowicz, and their other daughter, Lisa Blockowicz. Why is that important? Because as a general rule, in order to sue someone for defamation, the statements at issue have to be about you, not about a family member.
A second comment about these first two posts -- both were made in 2003, and the lawsuit was not filed until six years later in 2009. Why is that important? Because most states (including Illinois, where this action was filed) have very short statutes of limitation for defamation claims. The reason for this is because protecting free speech is extremely important, and if someone is really the target of false statements, the law expects them to act immediately before memories fade and evidence is lost. If a plaintiff fails to act promptly and they bring their lawsuit even one day after the statute of limitations expires, the law will forever bar them from suing on those claims.
In this instance, Illinois law provides that defamation claims are subject to a one-year limitations period which begins to run on the date the offending statements are posted, not the date when the plaintiffs discover them. Thus, any claims based on the first two posts would have expired as a matter of law in October 2004 -- nearly half a decade prior to this lawsuit being filed.
So why didn't the judge see this initially? After all, people reporting on this story have stated that a federal court found the statements to be false and ordered them to be removed. How could the judge make those findings if the statements were really so old? Why wouldn't the judge simply throw out the case, at least as to those older statements?
The answer to that question is that this case did not involve a trial. Instead, the case ended with a "default judgment" which means that the defendants did not appear (this is treated like a forfeit in sports). For the reasons explained later below, the fact that the defendants did not appear here is not necessarily surprising, nor does it mean they would have lost if they had appeared.
However, when a defendant defaults, the judge basically takes the plaintiff at their word and assumes the plaintiff's claims are true even if they aren't true. So what did the plaintiffs tell the judge about the posting date of these reports?
In Paragraph 11 of their Complaint (which you can read here: http://www.scribd.com/doc/24464314/Letter-From-Plaintiffs-Counsel-Complaint), the plaintiffs listed some of the offending statements but they failed to inform the judge that the first two posts were made in 2003. In fact, the actual posting date is conspicuously missing and is not found anywhere in the Complaint. Rather, in Paragraph 13 of the Complaint, the plaintiffs claim that the Defendants "update the false posts and 'reports' from time to time, including as recently as March and April 2009, by revising the original reports."
In other words, the plaintiffs' Complaint never informed the judge that the first two reports were from 2003. Instead, they alleged that the statements were updated/revised in 2009. If that was true, the statute of limitations probably would not have barred claims based on the older two postings. However, because this case ended in a default judgment, there was no trial and no defense lawyer or anyone else to point out these problems, so the judge simply assumed that the plaintiffs were being truthful.
The plaintiffs later admitted that, in fact, they were aware that the first posts were actually made in 2003, not 2009. In addition, they stated many of the allegations about Megan's legal history were true. Here's a direct quote from the declaration of David Blockowicz filed with the court:
In or around 2003, I became aware that Mr. Williams and/or his associate, Michelle Ramey, were posting inflammatory statements regarding Megan and her family on the internet, including at sites such as . While there appeared to be some elements of truth in these statements to the extent they related to Megan, the statements were exaggerated and intended to paint Megan in as negative a light as possible while painting Mr. Williams in as positive a light as possible.
Obviously, those who have written about this case have assumed that all of the statements at issue were false. If they had reviewed the court record first, they would have seen that wasn't the case. No matter how rude or unkind a statement may be, the First Amendment absolutely protects the right of people to express their views truthfully.
PROCEDURAL HISTORY OF LAWSUIT
In order to understand the outcome here, it is also important to understand the procedural events which occurred previously in the case. The lawsuit was filed on June 30, 2009 against two defendants -- David Williams and Michelle Ramey. Apparently Mr. Williams was the ex-husband of Megan Blockowicz. We have no idea who Ms. Ramey is or why the plaintiffs believe she had anything to do with these statements.
On the same day the Complaint was filed, the Plaintiffs also filed a motion asking the court for a preliminary injunction which would require all of the offending statements to be removed.
Under Rule 4 of the Federal Rules of Civil Procedure, copies the summons and Complaint are normally required to be personally served on each defendant. Obviously, the goal of personal service is to make sure each defendant is aware of the case so they can appear and explain their side of the story, raise any defenses which may apply, and so forth. By the same token, judgments which are entered without personal service are subject to later attack on the basis that they are void.
According to the court docket, neither the Complaint nor any of the related pleadings were ever personally served on Mr. Williams or Ms. Ramey. Instead, six weeks after the case began, on August 17, 2009, the plaintiffs filed a motion asking the court for permission to serve the defendants using alternative means; i.e., means not authorized by the Rules of Civil Procedure. Courts can and do routinely grant these types of requests, but even when they do, it does not prevent the defendant from seeking to vacate the judgment at any point in the future if they can show that they did not receive actual notice of the case. Assuming the defendant can show that they did not receive actual notice and that they have a "colorable"¯ defense, the judgment would be considered void and the court would be required to vacate it.
According to their motion and supporting declaration, the plaintiffs were not able to personally serve Mr. Williams or Ms. Ramey because they did not have an address for them. According to the plaintiffs' lawyer, he conducted an Internet "public record search"¯ and found an address in Oregon for David Williams (not an uncommon name; a Google search for "David Williams" in quotes produces nearly 2 million hits). This address turned out to be a rented mailbox. Copies of the pleadings were mailed to that address, but there was no evidence they were actually received by Mr. Williams or that the person renting the box was even the right David Williams. In addition, the plaintiffs' lawyer stated that he had sent copies of the legal pleadings to an email address which he believed belonged to Mr. Williams. However, plaintiffs never attempted to contact Ripoff Report asking if we had contact information for the authors of the three posts (we do).
The record does not reflect that any efforts were ever made to serve Ms. Ramey other than by sending mail to the PO box for Mr. Williams.
Three days after their motion was filed, on August 20, 2009, the judge issued an order stating that plaintiffs' efforts "were sufficient" and that no further attempts at service were required. There is no evidence in the record that this order was ever sent to or received by Mr. Williams or Ms. Ramey. Not surprisingly, since none of the papers were ever personally served, no one appeared or filed an Answer on behalf of the defendants.
A little more than a month later, on October 1, 2009 the plaintiffs filed a motion asking the court to enter a judgment by default. Five days later, the court entered a default judgment and a permanent injunction which required the defendants (Mr. Williams and Ms. Ramey) to remove the statements identified in the plaintiffs' Complaint.
RIPOFF REPORT'S INVOLVEMENT
One week after the default judgment was entered, on October 13, 2009 Ripoff Report was approached via email by the lawyer for the plaintiffs. The email included an attached cover letter and copies of the Complaint and default judgment; available here: http://www.scribd.com/doc/24464314/Letter-From-Plaintiffs-Counsel-Complaint. Prior to receiving this letter, Ripoff Report had never been contacted by any of the plaintiffs regarding these postings.
As a general rule, due to the millions of posts on our site and the huge volume of takedown demands we receive, we normally cannot and do not spend a great deal of time investigating each specific demand. However, upon reviewing the material sent by plaintiffs' counsel, several red flags were immediately present that caused serious concerns.
First, according to paragraph 10 of the Complaint, the plaintiffs stated that "RipoffReport.com often attempts to charge individuals and companies money if they wish to respond to 'reports'... ." This offensive allegation was and is completely false and is similar to other false claims which have been proven groundless in other cases. The fact that such a bogus claim was presented caused us to question the legitimacy of the other allegations in the case, so we decided to give this one a closer look.
During that process, we immediately noted that two of the three postings were made in 2003. Since the statute of limitations for defamation claims in Illinois is only one year, we were baffled at how anyone could obtain a court order requiring the removal of such old material when claims based on these posts would have expired half a decade ago.
Next, we noticed that the first two posts were not primarily about the plaintiffs; they were about Megan Blockowicz who was never a party to the case. In addition, many of the statements (such as those referring to Megan Blockowicz as a "scumbag") were clearly the opinions of the author. As a basic matter of defamation law, opinions generally cannot be proven to be either true or false, so it is normally impossible for an opinion to support a defamation claim. By extension, courts generally cannot issue injunctions prohibiting people from expressing their opinions. Such an injunction would be unconstitutional on its face.
We also reviewed the docket and determined that the "judgment" was not entered after a full trial on the merits as should normally occur. Instead, it was obtained by default (meaning there was no trial) and the docket reflected that the defendants Mr. Williams and Ms. Ramey were never personally served -- they were served via email (albeit with the court's consent).
The final red flag was found in our own records -- we pulled our server logs to determine whether the people who had been named as defendants (David Williams and Michelle Ramey) were actually the authors of the three reports at issue. What we found was that our logs showed there were three different authors with different names, addresses, phone numbers, email addresses, and, yes, three different IP addresses. Although the authors may have provided fake names, none of the information such as the email addresses (which Ripoff Report automatically confirms before allowing any posts) was consistent with the information obtained by the plaintiffs. This raised the possibility that Mr. Williams and/or Ms. Ramey did not create the posts and that the plaintiffs had therefore sued the wrong defendants.
Based on these substantial concerns and our general policy against removing reports, we advised the lawyer for the Blockowicz family that Ripoff Report could not agree to remove the posts.
THE COURT'S DECISION
Because we would not agree to remove the posts, on Thursday, October 29, 2009, we received an email containing a motion filed by the plaintiffs asking the court to "enforce"¯ the injunction entered against Mr. Williams and Ms. Ramey by requiring Ripoff Report to remove the three reports about Megan Blockowicz and her family. Normally, parties are allowed at least three weeks to prepare a brief responding to such motions, but in this case, the plaintiffs' attorney set a hearing in Chicago the following week, meaning we had only a few days to respond.
In their motion, the plaintiffs' lawyer accused us of "actively aiding and abetting" the defendants' violation of the injunction based on our "simple greed". The brief also argued that, in effect, Ripoff Report did not even deserve to have a day in court.
In response, we explained that although the plaintiffs had presented a story which looked very sympathetic, the true facts were significantly different. We noted that the first two posts were made in 2003, not 2009, and that the plaintiffs had produced no evidence that Mr. Williams and Ms. Ramey were actually responsible for creating these posts (these were simply unproven allegations). We also pointed out that the plaintiffs admitted many of the statements about Megan Blockowicz were true. Finally, we noted that we were not aiding and abetting Mr. Williams or Ms. Ramey and that the plaintiffs had never bothered to send the injunction to them (NOTE: injunctions are not enforceable against anyone, even those named as parties, unless and until the defendants receive "actual notice"¯ that they have been enjoined. This did not occur here because there is nothing in the record showing the plaintiffs ever sent the injunction to Mr. Williams or Ms. Ramey).
After reviewing our initial brief, the court asked for additional briefing, which we provided. In the end the judge found that the law simply does not permit an injunction against one person to be "transferred" to someone else without giving that person an opportunity to respond.
If that doesn't make sense, consider this example -- say a person files a lawsuit against someone else claiming that they improperly took control of bank account # 123-456. The defendant is never served with the lawsuit and they fail to appear, so the court issues an order saying that bank account #123-456 must be immediately transferred to the plaintiff. What happens if that account actually belongs to YOU? Would you expect the bank to just comply with the order and give all your money to the plaintiff without allowing you to be heard? Is that fair?
While I admit the facts aren't exactly the same, legally this is exactly what the plaintiffs attempted to do here. Regardless of the offensive nature of the statements, the Ripoff Report believed that the free speech implications of this tactic were too important to ignore. In other words, while we don't necessarily defend the actual speech involved here, we felt that the process used by the plaintiffs was inconsistent with the First Amendment.
Many people have also commented that this decision was based on the immunity conferred by the Communications Decency Act, and then have implied that the ruling means that the CDA bars all injunctive relief against websites.
That conclusion is incorrect. Although many cases have held that the CDA bars injunctive relief against websites, nothing in the court's ruling was based on the CDA. Rather, the decision was primarily based on the notion that in the United States, courts will not suppress or censor speech without first giving the affected party the right to be heard. In this case, all that means is that if the plaintiffs want to remove speech from Ripoff Report (or any other site), they are obligated to make the site a party to the case so it can decide whether to defend the statements or not.
FINAL COMMENTS
Okay, so now that you've heard our legal position, many people may still ask -- why won't Ripoff Report just do the right thing and remove these statements? Why would you have a policy that says you don't investigate reports and yet you also won't remove reports?
First of all, as explained above, no one has "proven"¯ these statements are false. In fact, the plaintiffs admitted that many of the statements about Megan were true. No matter how much we may dislike what is said, in this country the First Amendment does not allow the censorship of true speech.
Second, statements which call someone a "scumbag"¯ are certainly unkind, but we do not suppress speech simply because it may offend someone. In fact, the United States Supreme Court has repeatedly explained that the opposite is true:
[T]he fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker's opinion that gives offense, that consequence is a reason for according it constitutional protection. For it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas.
FCC v. Pacifica Foundation, 438 U.S. 726, 745-46, 98 S.Ct. 3026, 3038, 57 L.Ed.2d 1073 (1978) (emphasis added). In short, the antidote for unpopular or cruel speech is not censorship; it is more speech.
Truth be told, on occasion we may remove reports when it's clearly appropriate to do so. But this was not such a case. Here, because the plaintiffs never bothered to contact us prior to filing their lawsuit, we were never given any opportunity to decide whether to work with them to delete or redact parts of these reports. In addition, by making false statements against us in court which cost tens of thousands of dollars to defend, the plaintiffs' lawyer made it extremely difficult for us to consider voluntarily agreeing to remove these reports.
In closing, while I do not expect everyone to agree with our decisions and policies, I think it's important to understand that there are two sides to this story. Now that you have heard ours, I welcome any comments/opinions that anyone may wish to share with me - david@ripoffreport.com.
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Re: Defamatory or not is free speech.
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