Removing Offending Web Posts

by Erica Johnstone

Lawyers with a firm grasp of online jurisprudence view website operators as potential allies in combating unlawful speech. When providing advice about how clients or their company can reclaim an online reputation, a wide array of claims may be available for use against the poster of an unlawful publication: impersonation, harassment, surreptitious publication of intimate photos, and defamation, to name just a few. Be that as it may, the client will eventually ask one unavoidable question: What about targeting the website itself?

From the client's perspective, the website facilitated the injury the client has suffered. It's the website that allows the widespread dissemination of harmful content and then reaps profit from the malicious conduct. Shouldn't a lawsuit be brought against the website operator? Lawyers must not be tempted by either the client's earnest desire for redress or by "deep pockets." The answer, almost always, is no.

Under section 230 of the Communications Decency Act, websites cannot be held liable for content published, disseminated, or made available by a third party (such as their user). (See 47 U.S.C. § 230(c).) There are narrow exceptions to this rule. For example, websites may lose immunity if they had an active role in creating the unlawful content (Fair Hous. Council v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008) (to be liable, the defendant must create the illegal content)). Also, despite the protection of section 230, websites remain vulnerable to intellectual property–related claims, such as those arising under copyright, trademark, or patent law. (47 U.S.C. § 230(e)(2).) Those nuanced issues aside, what's the best way to approach a website that passively hosts, but did not create, the defamatory content and is most likely immune from liability under section 230?

If approached with care, even immune websites may be helpful to clients seeking to reclaim a tarnished reputation. The first step is to identify the proper contact--the person at a website most likely to respond to a friendly request to remove the harmful content. Read the website's terms of service. These often will set forth categories of unlawful speech that the website will not tolerate, and provide contact information for help removing such content. If a website doesn't make this information readily available, investigators may search for it in the Whois database (whois.domaintools.com/), a repository of ownership information for all Internet domains throughout the world.

The next step is to review the content. Is it legally actionable? As stated above, speech that harasses, defrauds, or defames may be actionable against the poster, but it likely can't be the basis of a claim against the website itself. Even when websites feel confident in their immunity, positive results for the client can often be achieved by simply writing a polite letter to the website: Identify the unlawful content, cite the terms of service provisions (if any) and laws violated by the original poster of the content, and explain the client's reasonable request in light of the specific facts at hand.

Most websites are generally receptive to such requests, either because the postings violate their terms of service, or based on the provider's editorial judgment and compassion for the victims of such conduct.

A minority of websites refuse to remove unlawful content, even at the request of the original poster, and even if the plaintiff has a court order requiring the poster to remove the content. These websites argue that users are easily intimidated into removing content, and that the response to offensive speech should be counter-speech, not removal of the speech. Alternatively, they may point out that there is simply no rule that forces them to remove the content, and so they won't. Such refusals have spawned numerous lawsuits and much creative lawyering on behalf of a harassed or defamed client.

For example, in one case an Internet search for a family's last name brought up as its first result an ex-husband's defamatory rant against his former wife and her family. The plaintiffs, the Blockowicz family, sued the ex-husband (the poster of the content) in federal court. When the defendant failed to respond, the court issued a default judgment against him, along with an injunction ordering him to remove the defamatory postings from websites (Blockowicz v. Williams, 675 F. Supp. 2d 912 (N.D. Ill. 2009)).

With the court order in hand, the Blockowicz family approached various websites to enlist their help in deleting the postings. All but one website complied. The Blockowicz family then sought a third-party enforcement of the injunction, asking the court to compel the operators of Ripoff Report.com to remove the defamatory postings pursuant to rule 65(d)(2)(C) of the Federal Rules of Civil Procedure. The district court held, and the Seventh Circuit affirmed, that that rule did not authorize it to enforce the injunction because, although Ripoff Report had ignored the injunction, it did not violate the order by aiding or abetting the defendant, and therefore it was not in "active concert or participation" with the defendant. Accordingly, rule 65(d)(2)(C) did not authorize the court to enforce the injunction against the nonparty website (Blockowicz v. Williams, 630 F.3d 563 (7th Cir. 2010)). The result is that even when a plaintiff that properly files suit against the poster (and not the website) wins an injunction requiring the defendant to remove the defamatory statements, a website operator can simply refuse to remove the defamatory statements.

Most websites value their credibility and will often remove content that's defamatory or unlawful. Sometimes, however, they won't. Instead of bringing a legal claim, the client may be better served by hiring a "search engine optimization" service to push the content off of the first pages of search results. Anyone who attempts to take the content down through litigation must be prepared for a long-drawn-out (and expensive) legal fight.

Erica Johnstone is a partner with Ridder, Costa & Johnstone, a San Francisco law firm focusing on IP, Internet, and privacy laws.

---