NY Judge Laments The Lack Of A 'Right To Be Forgotten'; Suggests New Laws Fix That
from the the-first-amendment-would-be-a-problem dept
A NY state judge, Milton Tingle, has apparently decided that Europe's troubling right to be forgotten concept should be imported into the US (possible registration/paywall). The case he was dealing with -- the rather impressively an vaguely named "Anonymous v. Anonymous Jane Does" -- touches on an issue we've discussed for many years. What happens when you have defamatory content posted to a site, where the site is protected by Section 230 of the CDA, and the original posters cannot be found.In those cases, as we've noted, there may be no effective remedy for the defamatory speech. The site cannot be forced to take it down, because if they're just a platform, they have no liability for someone else's speech. And since the person or people who are responsible can't be found, not much can be done. That appears to be the situation in this case:
Claiming they were prostitutes, anonymous commentators with the handles "JennaVixen," "Emma NYC Escort" and "Anonymous," posted opinions about the plaintiff's sexual habits.Since the commenters were anonymous, and there was no way to track them down, the judge initially allowed the commenters to be "served" by posting the summons on the same site where the comments were made, Dirtyphonebook.com. Not surprisingly, posting the summons on the site didn't make the commenters show up in court (whether or not they even saw the summons). Thus, the plaintiff won in a default judgment. But, again, nothing specifically could then be done -- which the judge appears to understand. However, he's troubled by this lack of a remedy, and appears to use the opportunity to muse on importing the "right to be forgotten" in such cases:
One of the commentators said he or she also was "an ex-employee owed money who is suing [the plaintiff]."
The plaintiff sued in 2013, claiming the comments were defamatory per se. He said he never engaged in the sexual activity described, nor was he an employer who failed to pay employees.
Though it was not within the court's authority to create laws, Tingling said he could offer suggestions to the Legislature.Unfortunately, this is a dangerous approach to the situation and likely goes too far. First, even the lawyer for the plaintiff notes that this ruling gave his client "exactly what we needed" -- which is a court ruling that the content is defamatory. It is highly likely that a copy of that ruling is being sent off to various search engines who may choose to remove it based on that court ruling. There need not be a "right to be forgotten" which would be much broader and have many unintended consequences, potentially harming the First Amendment. There is no need to break the important protections brought forth by Section 230.
One thought, he said, was to take up a rule akin to the "right to be forgotten" in the European Union Court's 2014 case, Google Spain v. Agencia Espanola de Proteccion de Datos, Case C-131/12.
There, the court said individuals had the right under certain circumstances to request that search engines remove links to personal information that was inaccurate, inadequate, irrelevant or excessive for data processing purposes.
"Thus, the right to be forgotten offers greater protections than §230 of the [Communications Decency Act]," said Tingling.
Instead, the judge has ruled that the content is defamatory, and the plaintiff and his lawyer have the ability to use that to request various sites take action in response and it is likely that many will follow through in doing so.
Of course, even that situation can lead to suppression of speech. Note that the case described above is not all that different from one we recently described involving Roca Labs suing anonymous commenters, where it seems fairly clear that Roca isn't looking to identify the commenters, but rather to get a default, in order to pressure Google into removing those negative reviews. This is why a legal change, a la the one suggested by Judge Tingle, would be so problematic. As it stands now, companies like Google can look at incoming requests showing legal rulings on defamatory content and decide for themselves whether or not the content should be removed from their index. Changing the law would open up another avenue for censorship through questionable means.
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Filed Under: defamation, milton tingle, new york, right to be forgotten, section 230
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You twist yourself into so many positions in order to try and protect the profits of this mega-corporation. It's really f'd up.
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Seriously, Slonecker, you're a joke, and not even the good kind!
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One that comes to mind is if information is posted that is flagrantly false, (as has been claimed in such cases all the time), then it has nothing to do with erasing history. It has every thing to do with restoring credibility where it is rightly due.
Only immature people think "if its on the internet, it must be true, and should become part of history".
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Once in a while, it's much more complicated. I had one client where a competitor hired an agency to post false content all around the web, mostly on sites that stand behind the "we just host it" claim.
Even though my client won the legal battle, the posters had been "an outside agency", and used false profiles. Just to get the first court process done took two years and $100,000.
To actually get a court to direct those sites to remove that content (since the "anonymous John Does" and their "agency" were unreachable) was expected to take at least another two years. And that much more money.
Seriously. It's a major problem.
Sure, I think forcing search engines to take down links is a mostly horrific path, the system is critically broken as it is, and real human lives, livelihoods and reputations are ruined all the time by malicious troll behavior and actions.
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It's a major problem when A FEW people have that power.
When only a few people have this power, and that is what right-to-forget policies will allow, then people tend to believe all the slander put out by those sources. Hearst was notorious for calling a cannibal anyone he didn't like politically, and that was enough to cost them votes or credit. When everyone has that power, a couple things seem to happen:
a. Some people develop the notion that we should be more polite. As Marge Simpson said "I guess one person can make a difference. But most of the time, they probably shouldn't."
b. A lot of people realize that they are fools for believing things posted on the web without sources. Obama went through an entire campaign and a term-and-a-half with the internet rumor mill generating nonstop -- with the end result that we now think vicious idiots those people that once (or still!) criticize Obama for being non-native, or a muslim, or a communist. It's actually made it more difficult to take seriously those who criticize his policies for legitimate reasons (such as being pro-surveillance.)
I think it's going to be tough while people in power choose to be willfully ignorant and cull their workers and associates on the basis of internet rumors. On the other hand, by throwing out good people and keeping those with squeaky-clean (e.g. well managed) records, they also hurt themselves by filtering for people who look first to cover their own asses.
Maybe in the end when all our skeletons are revealed with only a little digging, we'll better forgive and respect others for being human.
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I am in favor of section 230 protections, on the other hand it's problematic when the actual speakers can't be found. I just can't think of a good solution. Default judgments will be automatic, so that's not a good criterion of whether something is defamatory. It's not fair to force third parties to defend a case to decide whether it's defamatory. Some other countries have procedures that aren't adversarial that could be used in a case like this, but I don't think the US has any such tool.
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In this discussion of "right to be forgotten" we're seeing very little of...
Isn't the right-to-be-forgotten essentially a form of pinpoint historical revisionism?
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Re: In this discussion of "right to be forgotten" we're seeing very little of...
Okay, fine. Now you've got to explain to your boss, who found that stuff online about you, that it's not true. Your word against a host of trolls, most of whom may seem perfectly reasonable.
Good luck with that, particularly if you live in a right-to-work state.
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Re: Re: In this discussion of "right to be forgotten" we're seeing very little of...
I know that may sound like a difficult truth in an economy where bosses can demand facebook passwords (or, for that matter, blowjobs) with impunity, but the problem you suggest is a symptom of the FUBAR economy, not an internet that archives every little comment about someone that may or may not be you by someone that may or may not know or care.
I think XKCD nailed it in one. Once everyone is a victim of the internet, then people might be a bit more thorough and reasonable when using it as a resource to vet potential employees.
If your state hates its workers so much that they make it that difficult to find a legitimate job, then I suggest you start looking for an illegitimate job. Once the state ceases looking out for your best interests you are already an outlaw.
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If you want to be forgotten
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Forgotten
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This
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There is TONS of stuff slandering my name online, taking comments I made in the past and 'cut and pasting' them together to say something that I did not say or even intimate.
There needs to be some way to fix that issue of defamatory and slanderous posts without making someone bankrupt themselves by having to hire a lawyer.
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The process of silencing someone else should be difficult, and require a court case, even if you're talking about blatantly incorrect statements. The alternative, people having their speech removed or delisted based upon nothing more than a claim that it's defamatory, would cause far more damage than it would prevent.
Can you imagine how quickly a scammy company would be filing to have negative reviews taken offline should such a law be implemented? How quick a company that makes it's money shaking people down would file to have delisted sites that expose their actions?
No, the current state of affair may suck to those that are paying out the nose for lawyers to deal with defamatory statements online, but the alternative would be worse for just about everyone else.
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It's one thing to complain about bad service, but quite another to harass a girl born with a shrunken arm, per the story in Ars Technica about the troll hunters.
Are we really so dumb we don't know the difference? Is it really just a matter of perception? Is it really so subjective?
Nobody is being censored if they can't circulate pictures of your daughter's dead body in her wrecked car while joking about her sexual habits and (possible) use of narcotics because the websites on which they are posted keeps taking them off.
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Are you suggesting all web sites should be forced by law to moderate discussion forums?
Nobody is being censored if they can't circulate pictures of your daughter's dead body in her wrecked car while joking about her sexual habits and (possible) use of narcotics because the websites on which they are posted keeps taking them off.
Actually, they are. You may agree with that censorship, but that doesn't mean it's not censorship.
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America already has right to be forgotten
1. Put your site behind a paywall
and
2. Host your site on a Comcast ISP
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