De-indexing injunction could impact news websites
A Missouri circuit court judge’s ruling regarding a blog post could impact the future of news websites. The issue of de-indexing news stories and comments made on websites such as Ripoff Report have been at center stage in recent months, particularly with the attention focused on Arizona’s Kelly/Warner case. Two attorneys, Arron Kelly and Daniel Warner of Kelly/Warner Law are facing a complaint filed by the Arizona Bar Association for allegedly submitting documents to the court containing fake names and forged notaries for the purpose of removing online criticism and negative comments. Also named in the complaint is Raeesabbas Mohamed, an associate of the firm.
The Arizona bar alleges that the respondents engaged in “the filing of fraudulent and/or frivolous lawsuits aimed at removing online criticism of the firm’s clients.”
Internet takedowns, de-indexing and delisting have resulted in courts venturing into new territory. Libel and defamation have significantly changed since the inception of the World Wide Web. People are posting negative comments under their own name and also anonymously, making it sometimes difficult to track down the responsible person.
For the courts, it often means ruling on First Amendment rights and cases show judges sometimes have varying opinions. Those opinions can have an impact on newspaper websites.
Jason Hartman v Quentin Kearney, Jackson County Circuit Court, Case No. 1516- CV01981
The case of Jason Hartman v Quentin Kearney involved a lawsuit brought by a number of property management companies with claims against Hartman, a nationally known real estate advisor, in Jackson County Circuit Court, Kansas City. The claims were related to statements made by Hartman and his companies about the other companies’ businesses and business practices, which those companies said were false statements of fact, which defamed their reputations and harmed their business relationships, Mopress reported.
Hartman argued that he had Kearney’s company, Results Property Management, overseeing one of his properties and received invoices with vague explanations. Hartman recorded a video showing his invoices and questioning the propriety unitemized bills.
Hartman, who hosts a popular podcast, alleged he had received numerous com-plaints about the manner Results operated and had found discrepancies in his investigation of their business practices.
As Mopress reported, Hartman continued to put out negative publicity and the companies asked the circuit judge to enter an injunction. They did not to stop creating content, but rather to de-index Hartman’s content.
What is de-indexing?
De-indexing means your website or post won’t show in search unless the URL is typed in the search bar. It is used to prevent people from finding certain content.
In many instances, Google will arbitrarily de-index a website or post because of cloaking, doorway pages or stealth redirects. There are other reasons involving the violation of Google’s terms of service. Sometimes, as in the case of Hartman, a judge orders the de-indexing. By not indexing Hartman’s content, people would be unable to find it without the exact URL.
When an appellate court refused to lift the injunction, Hartman went to the Missouri Supreme Court. This time, he had media on his side.
The Missouri Press Association, along with the Missouri Broadcasters Association, asked the state Supreme Court to allow them to join in the request for the court to consider whether the injunction was permissible under the First Amendment. The state Supreme Court denied a request for a hearing, leaving the injunction to stand.
That decision left Hartman’s postings unsearchable, raising more questions as to how the Missouri court’s decision could impact the future of news agencies that publish content in the internet.
Not all courts in agreement
In 1996, Congress enacted 47 USC 230 (Section 230), which says websites–including search engines–aren’t liable for third party content. Google is the most used search engine on the World Wide Web.
Unlike the tactics Kelly/Warner is alleged to have used for de-indexing or removal, Google has been involved in some high-profile cases over removal requests.
One such case is that of entertainment industry professional Beatrice Fakhrian. Seeking to remove a negative review posted on Ripoff Report, Fakhrian sued Google. “Fakhrian’s lawsuit sought to hold Google responsible for the Ripoff Report post, which the court says is exactly what Section 230 prevents. To get around Section 230, Fakhrian argued that she informed Google that the post was defamatory, but Section 230 applies even if there’s notice of the allegedly problematic content. The court also dismissed Fakhrian’s complaint for waiting too long to sue; the post was made in 2008 and she didn’t sue until 2014, and the defamation statute of limitation is typically one year from publication date,” Forbes reported.
A more recent high-profile case, Google LLC v. Equustek Solutions Inc., the District Court for the Northern District of California granted Google’s motion for preliminary injunctive relief that a Canadian court order to delist Datalink search results globally cannot be enforced in the United States.
This case evolved around a 2011 patent dispute in Canada between Equustek Solutions, Inc. and Datalink Technologies Gateway LLC. Datalink had been falsely selling its own products as Equustek products and incorporating Equustek’s trade secrets into their own designs. The primary individual defendant fled the country after refusing to comply with several Canadian court orders, JOLT Digest. Google blocked more than 300 Datalink websites from its Canada-specific search results, but did not delist the sites on search results to users outside of Canada, such as those on Google US.
The Canadian Supreme Court upheld a trial court decision ordering Google to delist Datalink search results worldwide.
The District Court for the Northern District of California granted preliminary injunctive relief against that Canadian court order on the grounds that that the Canadian order likely disregards Section 230 of the Communication Decency Act of 1996.Google, the court ruled, benefits from US federal law, and undermines the public interest that Section 230 protects – safeguarding free speech on the global internet, JOLT reported.
Bypassing defamation lawsuits
Defamation lawsuits can become costly, and it’s much easier and less costly to attempt to have a negative review delisted or de-indexted. That is rte service Kelly/Warner Law provided that they are now under the microscope of the Arizona Bar Association. Known as reputation management companies, a number of them exist and can be found by searching the internet.
Many people are aware that suing a newspaper or other publication will result in a court battle, hence, they sue the commentator and request de-indexing of the entire news page.
“To Google’s credit, it seems to be extremely reluctant to deindex such professional media articles, especially in situations where it appears that there hasn’t been a real determination that the articles themselves are defamatory. Such deindexing of professional media articles by Google sometimes happens, but only very rarely,” said Eugene Volokh, columnist with the Washington Post.
By de-indexing an entire page from a news site, it jeopardizes the future of fair and balanced reporting as well as the First Amendment. Requiring an entire news page of non-defamatory content be removed because of one commentator could cause valuable information to be hidden from the public and government transparency could be jeopardized as well.