By Whitney C. Gibson, Published December 6, 2012
Originally Posted by Melissa Agnes: Crisis Manager, Speaker, Consultant
Read more at: http://www.melissaagnes.com/
Since we launched the Internet defamation practice group at Vorys, Sater, Seymour and Pease, I have encountered a number of misconceptions about the removal of information from the Internet. In this post, I have outlined and dispelled the seven most common misconceptions that I hear from clients.
1. You Can’t Remove Information from the Internet
The truth is there are many options to remove harmful information from the Internet, including:
- Contacting the poster and issuing a Cease and Desist letter;
- Negotiating with the poster to take the information down;
- Obtaining a Court Order against the individual who posted the information on the Internet. Once a Court Order has been obtained, we can submit it to websites and search engines, who will typically honor the Order and remove the information from the web.
2. The First Amendment Protects Publication of Information on the Internet
The courts have remained clear that the First Amendment does not protect defamatory speech, copyright infringement, trademark infringement and other illegal conduct on the Internet. Therefore, in many situations where someone is being damaged online, there are valid legal arguments as to why the First Amendment doesn’t apply, including case law supporting those arguments.
3. It’s Cheaper to use SEO Techniques to Push False Content Down in Search Results
In the past, the only option was to turn to online reputation management professionals who use search engine optimization tactics to push bad content down in search results. This method is becoming increasingly difficult due to changes in search algorithms, which means the visibility and impact of false statements could substantially increase over time as the information moves up search indices, is copied by other links, etc. In addition, these techniques are often more expensive than hiring an Internet defamation attorney and require ongoing payments to a company to try and post positive information in order to move the negative pages down the ranks.
4. You Should Only try to Remove False Content if it is on the First Page of Google.
One of the fundamental problems with this approach is that most states have a one or two-year statute of limitations for defamation claims. Therefore, it is very important for you to take appropriate measures to try and remove this information before it’s too late. The statute of limitations does not restart simply because something on the Internet moves from the 8th page of Google to the first search result. This often leaves companies frustrated as they want to try and remove the information once it moves to the first search result, though because the statute of limitations has passed, their options for removal are limited.
5. Communications Decency Act Prevents the Removal of Information from the Internet
In fact, most third-party websites will remove defamatory statements from their websites if you submit a Court Order ordering the defamer to remove the material. Additionally, various search engines, such as Google, Yahoo!, and Bing, will also remove links from their search engines that contain information which the courts have ordered to be defamatory.
6. You Can’t Identify Anonymous Posters
Typically, we can identify individuals who post false information through the use of cyber investigation services, and/or through subpoenas to provide the identity of the posters. Also, if for some reason we cannot identify the defamer through the subpoena process, we can obtain the screen name used to post the defamatory information and serve the screen name with a lawsuit. Even if we can only obtain the screen name, we can typically obtain a Court order against the screen name that we can submit to the search engines, and they will removed the URLs containing the defamatory content.
7. You Can Only Remove Defamatory Information from the Internet
We can remove most information that is harming a business online, other than simply defamation. We can take action to remove information if it:
- Intentionally interferes with a company or business through customer diversion, misleading information used to impact consumer decisions, or false statements;
- Intentionally uses information to negatively impact existing business contracts;
- Intentionally uses information to negatively impact potential business opportunities that have a likelihood of resulting in a business relationship;
- Intentionally or recklessly causes emotional distress for an individual due to posting information on the Internet (this relief is not afforded to businesses);
- Uses the image or likeness of another without that person’s consent;
- Involves the interception, disclosure, and/or intentional use of an electronic communication (email) without the electronic communication account holder’s consent;
- Violates the Stored Communications Act, if a third party accesses an electronic communications service and obtains electronic communications while they are in electronic storage;
- Involves use of a company’s trademark in commerce to, generally, cause consumer confusion, mistake, or deceive;
- Involves use of a company’s trademark to divert consumers to a website that is not actually selling the trademark owner’s product;
- Involves Trademark Infringement Cyber Squatting (when a person or entity creates a web domain with the same or substantially similar name of a recognized source); and/or
- Is online/civil harassment.