Episode 47 | Posted on

Protect Your Online Reputation with Kenton Hutcherson

If you own a website or online business, you will want to comply with the law, protect your content, and keep your brand’s reputation positive. Kenton Hutcherson explains how to keep your business secure, and the steps to take if someone posts defamatory content about you online. Kenton is an internet lawyer who knows how to navigate the intricacies of the digital world. While the law varies by state, understanding your rights is the first step to a successful online business and reputation. We discuss the difference between defamation and invasion of privacy, removing defamatory content from search engines and more!

Transcript

Hello and welcome to Marketing Speak. I’m your host, Stephan Spencer, and today I have Kenton Hutcherson with us. He’s an internet lawyer from Dallas, Texas and an outstanding one at that. I’ve heard him speak at PubCon, actually I’ve heard him speak a couple of different times, particularly on the topic of online reputation management and how to deal with it from a legal perspective. Kenton has pioneered the practice of obtaining court orders to remove defamatory content from the Google search index. He has obtained the removal of over a thousand web pages from Google using this court order technique. You’re going to learn all about it. It’s really innovative so I’m super excited to have on Kenton, it’s great to have you.

Thanks for having me.

Let’s talk first off about Ripoff Report because they just seem impenetrable that you cannot get anywhere filing a lawsuit against these guys. Why is this a case, why are they so bulletproof, and what’s the work around?

Sure. The reason why they are in a sense bulletproof is there is a federal law called The Communications Decency Act. It was made to try to allow internet companies to grow and develop. Essentially what it says is if you’re a website, you’re not liable for content posted to your site by third parties. The benefits to this law make a lot of sense. Let’s say you’re Google or Yahoo! or even Facebook and a third party comes in and posts something that is false and defamatory about somebody else. Traditionally, under traditional defamation law, you would be considered a publisher of that content or republisher of that content and could be held liable for that defamation. If that was the case, then a lot of these companies like Google and Yahoo! wouldn’t exist because the legal liability would just be overwhelming. In order to avoid that, they’d have to investigate everything that gets posted on their websites in some way. That way, it allows these companies to exist and flourish. The caveat to that, I guess this is an unintended consequence, to the Communications Decency Act, is that it has opened the door for websites that cater to negative reviews such as Ripoff Report. There’s other ones of course, Consumer Complaints Board, etc. People can post any type of statement they want about anybody else. People are defamed on these websites. Of course, often times, there are truthful reviews and so there’s the good and the bad in that sense. Where you do have a situation where somebody posts a review that is false and defamatory about you, the Communication Decency Act says that you can’t go after the website. The unintended consequence is that a lot of these websites have policies where they remove defamatory statements under any conditions. Ripoff Report I know has different programs, their Corporate Advocacy Program, they also have this Arbitration Program where after you go through an arbitration process and prove your case, they may reduct certain specific statements but the report still remains is my understanding. The problem is that these websites have turned it into a machine where they make money off of a lot of these defamatory complaints. It’s unfortunate but that’s the way it is. Congress, of course, needs to change its law. They need to amend it to prevent these websites that make money off of defamation that they host. That, to me, seems to be a bad thing. It has hurt a lot of people and yeah, that’s kind of why they are able to exist. They’ve been sued a number of times and I’ve been involved in a few lawsuits against Ripoff Report. They’ve been very successful in terms of using this immunity under the Communications Decency Act to protect them. The work around, because you mentioned that hopefully there is something that can be done. The work around which we kind of developed about 70 years ago is if you can file a lawsuit against the author of a defamatory report about you, if you can obtain a court order or injunction that requires them to take action to remove the Ripoff Report or any other defamatory statements that they make on the internet, you can send that to Google and Google has a policy where they will honor that court order and remove that from their search index. They will remove the Ripoff Report or whatever other defamatory web page from their search index. That’s fantastic because what it does, nobody’s really searching Ripoff Report for you. If they are, then they probably already have their pre-negative opinion about you. If you can get it out of Google, that solves 90% of your problem. Once we figured that out, filing a lawsuit against the author of a report is much quicker, it’s much cheaper, it’s much more successful than if you were to file a case against Ripoff Report. Ripoff Report will defend these cases tooth and nail. If they lose one, then it opens the flood gates and it destroys their business model. That’s what we do. We’ve been very successful using that strategy. As it turns out, we’re the first ones that I know of that used that strategy and then we wrote an article in 2011 on the website search engine land kind of detailing how you use this strategy. Now, there’s other lawyers that use it as well. It’s helped a lot of people, whereas before they had no hope. They had no recourse to deal with these types of defamatory reviews about them.

Ripoff Report will defend these cases tooth and nail. If they lose one, then it opens the flood gates and it destroys their business model. That’s what we do.

Let’s briefly talk about Ripoff Reports business model. You said they make money off of defamation, how does that happen?

Sure. I want to be very careful about this. They claim that what they’re making money off of is not necessarily defamation but the chance to give you the ability to repair your reputation. They have this Corporate Advocacy Program where basically what they do is you hire them to investigate the reports about you and to make things right. My understanding of what they do is they come in, they contact the authors of the various reports about you. Some of them they may find to be false and they’ll say that. After the investigation, we found that this company’s a good company and we found this report to be non-credible. Or sometimes what we’ll do is let’s say the report is true, then what they do is they try to work on the client’s behalf with the author of the report to satisfy them, to make them happy and repair the situation. In that perspective, they’re not making money off defamation because it’s not defamation, it’s a true and valid report. They are helping the client repair the reputation by making things right with people. The other problem they have is their Arbitration Program which is where they have an arbitrator. They may be using a former judge, they may have multiple, I don’t know how many they have. Basically, you go in and you submit your case. I’m saying here’s what’s been alleged about me, here’s evidence showing why that’s false. The person that’s the author of the report is given the opportunity, my understanding is, to submit their case saying why the statements are true. The arbitrator evaluates it and then renders a decision and then they publish that decision as my understanding and then they may reduct certain statements that the arbitrator finds to be false and defamatory. That’s my understanding. You can certainly go to their website and learn more about it. Their characterization of the program I’m sure is going to be different than mine. But yeah, that’s kind of how they operate, based on my understanding.

Great. Paying them for this Corporate Advocacy Program is quite expensive and it doesn’t eliminate the problem, it actually perpetrates this really horrible situation where they’re making money off of people getting their reputations tarnished. Instead, you have this other approach that we’ll discuss in just a minute. Before we do, I wanted to do a couple of things here. First off, can you define defamation and contrast that with other forms of reputation management? There’s slander, and some other terms that have been probably thrown around interchangeably by those who don’t understand the legal definitions. Maybe we can start there.

Sure. You have this broader category of defamation. Within that are two different types of defamation which are libel, which is defamation in written form, which is typically what we see on the internet because it’s in writing. There’s also slander which is oral defamation where you make an oral statement about somebody. If you’re at a big meeting and you say oh, that person is a thief. That’s not libel, it’s slander just because it’s simply oral. To qualify for either libel or slander or defamation generally, what you need to be able to show is that the person that is the defendant has made a statement about you-it has to be about you or considered to be about you-that contains an assertion of fact or implies an assertion of fact that is false and disparaging about you. You can have situations where sometimes people will make an opinion, “In my opinion, this person is a murderer,” that can imply facts that you killed somebody, that can still constitute defamation. When we get a case, we look at the statements that are made and we zero in on what are the statements that contain assertions of fact. We identify all those and then we go to the clients, show us which one of these are false. Sometimes, they’ll be a combination of true statements and false statements and then how do we prove they’re false. That’s defamation. There’s some other things that you’ll see, there’s false light which is similar to defamation which is where they’ll say something about you but they’ll say it out of context. It implies defamatory statements. There’s also business disparagement where somebody makes statements about your economic interest. Let’s say you’re a restaurant and somebody publishes that the fish at your restaurant are poisoned, then people aren’t going to go in and go to your restaurant and order fish or probably order anything for that matter. That’s not really about you so much as it is about your economic product, your business products or services.

Defamation is about a person and not about a company.

No, I’m sorry. Defamation is about a person, it can also be about a company. The distinction between defamation and business disparagement, there’s a few. The main differences are if I were to say this company is scamming people, that’s defamation. You’re talking about them, you’re talking about their reactions. Whereas if I were to say that this company is selling products that infringe somebody else’s patent, you better be careful because then you’re buying patent infringing products. That is business disparagement, you’re disparaging the quality of some attribute of their products or services.

That’s a distinction I’m not quite grasping. We’ll move on. I wanted to also go back to this concept of a company like Ripoff Report being not liable because of the Communications Decency Act. Let’s delve a little bit deeper here. I’m first going to give you an example here just because there’s this legislation out there that protects website owners doesn’t mean that you are immune from getting sued. I got a lawsuit that was frivolous, clearly I was protected by the legislation, but frivolous law suit was filed by this lady who is a literary agent and I had built a website back in the 90s calledwriters.net. She filed a lawsuit against me, me personally and not my company, which was the actual owner of the website. She included in the folks she was going after Wikimedia Foundation which are the guys that run Wikipedia. She was suing Wikipedia, she was suing these different associations of writers like The Science Fiction Writers and so forth, kind of ridiculous. I had to spend a bunch of money and it took years before that lawsuit went away, it was finally thrown out. I still had to respond to [00:[16:14] a depositions and all that unless it’s a badly formed lawsuit that can get thrown out right away. Hers wasn’t thrown out right away so we had to go through this whole process. Finally, years later, it was thrown out. Bottom line is that the Communications Decency Act does provide some protections but doesn’t prevent somebody from filing a frivolous lawsuit. What’s your advice for dealing with frivolous lawsuits? Is there a way to kind of shortcut that process? Have you figured out this work around for removing defamatory content?

What you can do depends on where you are, what state you’re in. A few states have what are called anti-slap laws which is where if you’ve been sued for anything related to free speech, then you can claim that what you’re doing is an exercise of free speech. What that can do is it can force the other side to present what’s called a prima facie case to the court, basically just evidence sufficient to show that they have a viable case against you. You can bring in affirmative defenses such as the Communications Decency Act and say, “Hey look, we’re a website, we didn’t create the content, somebody else submitted it to the website.” Using that, you could say, “Look, the lawsuit is frivolous on this basis and so the court has to dismiss it.” Typically in cases like that, if you prevail, if the other side is not able to meet their burden by showing that they have evidence to support their claim, the case will be dismissed. Typically, the other side is going to be required to pay your attorney’s fees. The other side may be required to pay a sanction on top of the attorney’s fees. We’re typically on the plaintive side. We deal with these anti-slap motions, we file the case knowing that this may come up. We’re not going to file it unless we have a legitimate basis for doing that. Of course, as you mentioned people do file for these cases sometimes, that’s a way of dealing with it so that you don’t have to deal with all that discovery, hopefully. You can have the case adjudicated much quicker. And if you prevail, you force the other side to pay for your attorney’s fees for the case. Not every state has this. I know California has it, Texas has a statute like that, and Texas’ is fairly new. Most states, I’d say, do not have it.

Great, and then there’s this thing called the Digital Millennium Copyright Act which provides some protections but also provides an ability to request that some content be taken down if it’s infringing copyright. The DMCA takes down notice, you can file with the website owners, web host with search engines. When is that something that is appropriate or an option?

Sure. If somebody goes in and posts something that copies content that you have copyrighted, that you created, you don’t necessarily have to have it registered with the Copyright Office, you just have to have what’s called a common-law copyright which is where you can show that you either created it or you acquired it. Maybe it was done by an employee, so the company owns the copyright. Perhaps you purchased the copyright from a third party. If you own the copyright and then somebody goes in and copies that and puts that in a posting, you can submit a DMCA, take down notice to the website, you can submit it to the host provider, you can submit it to the search engines. What happens is typically if they are republishing content that infringes copyright, they’re liable for copyright infringement. But if you send them this take down notice at the DMCA, they can review the take down notice and either comply and remove the content that you claim is copyright infringing or they can say, “No, we don’t believe it applies. We don’t believe this is copyright infringement.” At that point, if they decline to remove it, then you can sue them for copyright infringement for being a publisher. You still have to win your case that they are liable for copyright infringement but it opens a door for you to be able to sue them. [00:22:03] One of the important distinctions here is sometimes we’ll see people, let’s say somebody makes a Ripoff Report about you and you go in and say, “Alright, I will buy the copyright of the content in that Ripoff Report from you,” and then submit a DMCA take down notice to Google. There’s a few problems with that. First is for a DMCA take down notice to be effective, the alleged infringement has to happen without authorization. If the author of the report posted it, they posted it with their own authorization. Continued publication on the website does not constitute infringement or unauthorized use because you can’t go claw that back, you can’t go retroactively and apply the DMCA, it has to be if you acquired the copyright, it’s only valid against subsequent people that infringe that copyright. The second problem which I should mention is that Ripoff Report claims copyright over everything on their website, or at least they claim an irrevocable license to all the content. When you submit a Ripoff Report, you agree to their terms of service which say that, “I agree that I’m giving Ripoff Report an irrevocable, exclusive license to this content.” By doing that, Ripoff Report claims that essentially they are the exclusive holders of the license to that content. Anything on Ripoff Report is not going to be infringement because they own the license. From that perspective, the DMCA would be invalid. However, let’s say somebody were to go in and make a Ripoff Report and publish something that is taken from your website or is separately copyrighted, the author doesn’t have the ability to give them a license to content that the author doesn’t own. If you find that, then you can send the DMCA notice to Ripoff Report. My understanding is I think they would comply with that, but there’s exceptions, there’s a fair use exception. They may say, “Yeah, this is all fair use. We can use material that criticizes a certain material.” If you take pictures from somebody’s website, that could be considered to be fair use in connection with a complaint about them. It could be, depends on the situation of course. But yeah, that’s kind of how we use the DMCA. The DMCA can be very effective because it can give you a hook to have content removed where if it does apply, not necessarily for Ripoff Report or for websites generally, it’s a very easy thing to do to submit a DMCA take down request. It’s pretty inexpensive, it’s pretty quick. If you have a valid claim, it can be a very simple, quick thing to do. I should note however that if you do something improperly, if you just submit a DMCA request in contents removed that you don’t have copyright over, then the person whose content you removed can have a claim against you for a wrongful DMCA take down request. That can get pretty ugly. You got to make sure that you have a valid basis for submitting that.

With the Digital Millennium Copyright Act, if you are the website owner, if you’re considered a publisher versus not a publisher, you have certain rights and responsibilities with each. It’s better to not be considered a publisher but instead just a distributor of information. If you’re not going in and editing the discussion forum posts, you’re not moderating, you’re just letting it be. That gives you more protection than if you go in and you edit stuff, correct?

I think what you’re talking about is more in terms of the defamation context and under the Communications Decency Act. For example if you have a website and you post content on your website that is false and defamatory about somebody else and they sue you, you can’t claim the CDA, Communications Decency Act, because you are the author. You’re not hosting content from a third party, you’re hosting your own content. The CDA doesn’t apply. Similarly, it gets into a grey area, it has to be evaluated on a case by case basis. If you are a website and you edit the content in some way, it could be seen as you being a co-publisher of that content. It depends, if you go in and you add maybe a period where there wasn’t one before, then that’s pretty innocuous content editing, you’re probably not going to be held liable. But if you add content that makes a statement defamatory in some way, it changes the defamatory character of that content. In that case, the CDA probably is not going to protect you and you can be liable as initially co-author of that content, a joint author of that content.

If you add content that makes a statement defamatory in some way, it changes the defamatory character of that content. In that case, the CDA probably is not going to protect you and you can be liable as initially co-author of that… Click To Tweet

And then there’s this Right To Be Forgotten Legislation which I guess would only work in Europe if it applies. You’re not going to remove it from US Google if you invoke this legislation. Could you briefly describe what the Right To Be Forgotten Legislation is about?

Sure. I’m not as familiar with that, it’s a European law, it’s not an American law. Basically, what it is is if you’ve been defamed or somebody has posted pictures that invade your privacy or just stuff generally that you don’t like, the Right To Be Forgotten allows you to submit a request to the search engines or any type of website and ask that they remove content about you. I’m not as familiar with the details of that, I don’t know if you can request removal of certain things or if it’s requesting that they remove every single reference about you so that you essentially become invisible to the search engines. That is a pretty powerful tool to have content about you removed. Like you mentioned, it is limited. It’s only going to apply within Europe. If there’s content that’s negative about you and you live in France, Google will, I presume, remove it from Europe but the content will still appear if someone does a search in the United States. That’s my understanding of the Right To Be Forgotten.

Alright, excellent. Let’s jump back to now your process for removing defamatory content. This relies on the fact that Google provides a form or a process for you to submit when you have a court order that says that this stuff is defamatory and should be removed off the internet. There’s all process involved, you have to file a lawsuit and it’s not against the Ripoff Report or Pissed Consumer website, it’s actually against the person who’s defaming you and it could be an anonymous person. Walk us through that process.

Sure. The way that the process works, the end game that you need is you need a court order against a specific individual or entity that has defamed you. To get to that point, you have to first identify the person. Often times, there’s pretty strong circumstantial evidence that indicates who the author is. Other times, you just don’t know. Where we don’t know, what we do is we file a lawsuit against John or Jane Doe or multiple John or Jane Does. Then, there’s a few things we can do. One of the first things we’ll do is we’ll try to issue a subpoena in that lawsuit to the website host, either Pissed Consumer, Ripoff Report, or wherever and ask for the information that they have that identifies the author. That’s going to be the IP Address, their email address, whatever name they provided. Once that happens, depends on the entity, Ripoff Report has a procedure where they say, “Alright, we got the subpoena. Before we can provide this information to you, we need a couple things. The first thing we need is we need you to post a notice on the Ripoff Report saying that this subpoena has been issued so that it provides the author of the report notice that this is happening.” Second, they ask you to present evidence showing that you have a valid claim because you can’t just go in and unmask somebody, you have to show that they have in fact broken the law or committed defamation. They ask you to present essentially a prima facie evidence that there are assertions in fact about you that are false. Once that happens, they go in and they notify the author through whatever email address that they have on file, give them a certain period of times, 10, 20 days or something like that, in which they can file a motion with the court to quash the subpoena or object to the subpoena in some way. If they don’t do that, then they typically will comply with the subpoena and provide you with that information. Of course they’re entitled to object, in that case you have to go to court and file a motion to compel to get them to comply with the subpoena. From my experience, as long as you jump through the right hoops that they want you to jump through, they’re pretty good about honoring the process that needs to be honored for a subpoena. That’s the main technique we use to identify anonymous authors. There’s another technique that we use in certain cases where the client has a pretty good idea, a pretty good suspicion about who the author is but we don’t know for sure. What we’ll do is we use a forensic, linguistic expert. What that is is an expert on the way people write, the different writing patterns people use, the different punctuation, different styles that people use. The person that we use is the guy who copy for the FBI, he was with the FBI for 20 years and essentially created this whole field. It’s really cool because it’s not just mumbo jumbo, he goes in and he creates this detailed report showing why certain writing matches the known writing of a person. To do that, you have to have known writing samples from the suspect. If they’re a former employee, then you’re probably going to have emails from them, there will be some memos that they’ve written. If not, then you have to rely on seeing if you can get Facebook postings or other things that they’ve posted on the internet that you can affirmatively tie to them. Having the known writing sample is key. We have a case that I’m working on right now where we honestly did not know who authored certain online postings. We submitted known writing samples from 18 different people, I want to say, to the expert. He evaluated that and said, “Alright, everybody else I can definitely say they did not do it. This person is the person that did it.” They can’t give you an opinion of 100% that they actually did it but they can say that this person is very, very highly likely that this person authored it, that the linguistic characteristics of the writings are consistent to a very high degree. We did that, we figured out who it was, we filed the lawsuit. They off the bat said, “Yep, I did it.” At that point, they didn’t contest authorship, the case is still going on. They can contest other things, whether or not our statements are true or false, whether or not there’s damage, that type of a defense. It’s pretty cool, it’s really impressive. They can do this big report talking about semi colons and dashes and word choice. In trial, they’re very compelling witnesses. That’s the first process, identifying the author. Once that happens, we then have to substitute them into the case. Instead of John Smith versus John Doe, you have John Smith versus Stephen Spencer. Whatever the name is of the author, you substitute them in as the defendant and then you proceed with the litigation. Identifying the author is often times the hardest part of the case because particularly where they’re anonymous, a lot of times the things they say are so over the top that proving falsity is not very difficult to do in most of these cases. The case either often times will settle the case with the defendant and have an agreed order that gives us what we need to go to Google or sometimes they fight the case and we have to fight it all the way and go to trial. We do that sometimes. Most of the times, they settle out because it doesn’t make sense for them to continue to fight the case that’s going to cost them a lot of money in attorney’s fees and they’ll probably lose at the end of it. If we can get the court order quickly, then we’ll be much more generous to them and sell them an agreement than we would otherwise.

Great. You keep mentioning Google but what about Bing? Does this process also work with Bing?

It used to. A few years ago, Bing and Yahoo!, Bing controls Yahoo!’s search results. If we got Bing to remove it from their search engine, it will also be removed from Yahoo!. Bing and Yahoo! used to honor these court orders as well. They no longer do. That happened two, three years ago I want to say. I don’t know specifically why, my guess is it cost them money to have people receive the court orders, review them, and then do whatever they need to do to remove it from their search index. They now basically just ignore it. That’s not good. The flip side to that is these defamatory pages like Ripoff Report, they don’t typically rank as high in Yahoo! or Bing as they do in Google. It doesn’t cause as much harm on their search engines as it does in Google. It is what it is. It still is worth it to most of our clients to have the material removed from Google even though we can’t get it out of Bing and Yahoo!.

Got it. Is there any kind of limitation around the time frame that you can utilize this technique?

That’s a very, very good question. The answer is absolutely there is. To file a defamation case, you have to do within the statute of limitations. That varies by state. In Texas, it’s one year. In California, it’s one year. Florida, it’s two years. New York, it’s one year. In most states, it’s only one year. There are a few states where it’s two years and then the most it exists is going to be three years. We have a case in Connecticut right now where it’s a two year statute. You kind of need to know that, but you also need to know particularly where the defendant is anonymous, you need to file your case as soon as you can. The reason for that is when you go through and do the subpoena process to identify who the defendant is, every step of that process takes time. If there’s an anonymous defendant, I don’t know who made the posting, I file the case, I issue the subpoena to Ripoff Report if the report is on Ripoff Report. It’s going to take about a month, maybe more, before I can get anything back from them. Once I get that back, it could lead me to a fixed IP Address that can tie it to a particular company or perhaps a particular individual. Typically, it’s going to lead to a dynamic IP Address. In that case, it will connect it to an internet sourced provider like Verizon, Time Warner, Comcast, or AT&T. At that point, I then have to issue a subpoena to that ISP to figure out which one of their subscribers was assigned that particular IP Address on that specific date and time that the posting was made. In doing that, you are relying that they still have those records. These ISPs, depends on the company, but they have retention policies where they only keep those records for a certain period of time. Sometimes, they’ll be a year, sometimes two years, sometimes only six months. If you go down this road and then you subpoena the ISP and they’ve already purged those records, at that point you’re in a tight spot. You have to rely on other information to bring your case forward which got to be the forensic linguistic expert, maybe circumstantial evidence. Perhaps you can use subpoenas to other people when asked if they made the report. Your chances of succeeding in terms of identifying the author fall dramatically the longer you wait. Essentially, you’re in a race. You’ve got to get the case file, you’ve got to get your subpoenas out the door as quickly as you can so that you can get the information while it’s still fresh, so to speak.

What if you don’t identify that person, the John Doe or the Jane Doe, you never figure out who that is. Can you still have a successful removal of that disparaging or defamatory content?

There are a few things that you can do. One thing that we’ve done in the past is let’s say they have a screen name, they post it under a name, Sherry Jones or whatever. Sometimes, what we’ll do is we’ll file the lawsuit, we’ll name Sherry Jones as the defendant, and then do service by publication which is where in any lawsuit you’d have to serve a defendant to give them notice of the case so that they can present their defenses before court will issue an order or a judgment in your favor. Service by publication is where you tell the court, “Hey look, we can’t locate this person. Let us serve them by posting a notice in the newspaper,” each data has around specific rules about how you do it. You post a notice in the newspaper once a week for four weeks or six weeks and then at some point they’re deemed to have been served. 99% of these cases, the person that’s been served by publication doesn’t appear in the case so you get a default judgment. Courts know this is likely that there’s going to be default, they’re likely the defendant is not going to receive actual notice. These judgments are easy to overturn often times. If you go through that process and you get the judgment, you can get the court order that you need and you can then send it to Google. My experience has been that sometimes they will honor that and sometimes they won’t. Sometimes they’ll say, “Hey look, you need to actually bring in the actual person. We need to see that they actually participated in the case. Otherwise, this technique can be opened up to abuse.” My response to that is this is how the legal system is structured. It’s designed to deal with situations where you have a party that has been injured and they need to have the injury addressed and resolved. This is the legal system that their society has chosen to use to deal with that type of situation. I certainly understand the concerns on the other side. If you go through that process, you need to know that there is a decent chance that Google will decline to honor that court order. When that happens, that sucks. You go through the process, it costs you a bunch of money, it takes a lot of time, you get the order and then Google says no, it’s pretty frustrating. I don’t typically do that many cases like that anymore just because if I don’t know that I can help my client then I’m not as comfortable doing the case in that type of situation.

We talked about dealing with defamation where let’s say there’s a copyright infringement and you can use a take down notice, you use your process which sounds really amazing as long as it’s within the time frame, the statute of limitations time frame. A couple of other ways that you could make a case is that there is emotional distress that was inflicted or invasion of privacy. Could you talk about those?

Sure. There are other situations where people will be attacked on the internet. It doesn’t necessarily fit into a defamation situation. For example, I had a case where we actually went to trial back in December where my client was in a terrible, horrible situation. She was a victim of human trafficking and her husband, who’s now her ex-husband, unfortunately, took numerous videos of her. He pimped her out to 60 other people and he kept lists of it, the dates and times, the money that he charged, he video taped it. When she finally escaped from him, he published this all over the internet. In that case, he’s not defaming her so much as he’s invading her privacy by publishing content without her permission that clearly is intimate in nature. She did not give her consent to have that material published, she did not give her consent to be forced to engage in that process, and she did not consent to either the taking of the video or the publishing of the video. Sometimes in a situation, if somebody’s trying to extort you, if somebody’s just making threats against you online, it may not fit into defamation but you might be able to assert a claim for invasion of privacy. You might be able to assert a claim for intentional infliction of emotional distress where somebody’s basically just trying to badger you online. That can be another cause of action that can lead you to get a court order to have material removed from the search engines and also hopefully the underlying website where the content appears.

Right. You mentioned before we started recording that Google had made some changes regarding court orders, how they handle them, could you elaborate on that?

Sure. Google has gotten a little bit more picky with court orders. Before, what we would do is we’d have a court order, we always draft it for the court and the court can always change it if they feel fit. We basically say these are the URLs that the negative content appears, that the defamatory content appears. The defendant has to take all the action they can to have this content removed. Google has started to scrutinize these orders a little bit more. Sometimes, they’ll ask where the defamatory content is specifically on the page, sometimes they push back where if you have a website or a web page where there are posts from multiple people, that some of those statements are going to be true but you have a statement that clearly is defamatory. Sometimes, they push back on removing the entire page because they don’t want to in a sense infringe the free speech of the people that made truthful postings. They’re not entirely consistent with that. I look at it as look, this webpage contains unlawful content. It doesn’t matter if they put truthful content on there as well, breaking the law is breaking the law, it ought to be removed. They also have taken the steps where they will typically notify the host websites of the court order. If you’re a website and you’re notified that this particular posting is false and defamatory on a page that contains multiple postings, the website may choose to remove that posting. In doing so, they allow the remaining postings to stay on that website and essentially stay in the Google search results.

So basically if there are negative posts about you and you want the whole page to disappear, what they could do is they could just remove the one that is “defamatory” and the other ones that are just negative but that don’t fit under defamatory or weren’t included in the court order can stay.

Google, unless it’s a web page that they control like if it’s a blogger page, if they don’t control the webpage then for them it’s all or nothing. They either remove the entire page or they don’t remove anything. If there’s one defamatory posting and there’s ten postings on the page, they may go to the host of the page and say, “Hey look, there’s this court order saying this content is defamatory.” Maybe they’ll say remove that or remove the page, or maybe they’ll just come back to you, the party who’s requesting removal, and say, “We can’t remove it because there’s other content on there that is made by other parties and we can’t remove that.” That’s pretty frustrating. I think if you were to have a system where they go, let’s say Pissed Consumer which is a website where you can have a whole bunch of negative reports on the same page by different people. You can get a court order against one of them. In a situation like that, if Google were to say to Pissed Consumer, “Hey look, please remove this one report. Otherwise, we have to remove the page.” Pissed Consumer, from what I’ve experienced, will remove that one defamatory complaint so as to preserve, keep everything else that has not been declared to be unlawful so that all that content can remain. I guess this is all to say people going into this need to know that sometimes Google will remove everything on the page or just remove the page outright, sometimes they will contact the website to show them a court order and to have these specific content that the court finds unlawful removed so that everything else can remain, or sometimes they’ll just decline to honor the request. They haven’t been completely consistent from my experience in terms of how they handle that type of situation.

Great. This would also be applicable in a situation where it would be let’s say Yelp and there’s a huge bunch of reviews, many of them could be positive, but then there’s this defamatory one. You want the defamatory one removed and not the entire page out of Google which has a whole bunch of other positive reviews.

Right. Yelp is kind of an interesting situation and I do need to preface this by saying that I represented Yelp in a very limited capacity as a local council in response to a subpoena a number of years ago. I don’t represent them now, I haven’t represented them in a number of years. Google seems to treat Yelp a little bit differently. I have had them on our court orders regarding postings on Yelp but I’ve had a lot more where they’ve declined to remove the web pages for the reason that there are postings from a lot of other people on the same page. Also, Yelp is not designed to be a negative forum, it’s not like Ripoff Report, Pissed Consumer where you go to describe your bad experience so it’s pretty much all negative. Sometimes they’ll have positive stuff but the actual reports, the purpose of why it’s there is for the airing of negative complaints. Yelp is not necessarily that way. Of course there’s plenty of negative complaints on there but there’s also plenty of positive stuff, it’s kind of neutral in terms of the reviews that it’s looking for. From my experience, it’s much harder to get Google to remove a Yelp complaint. I don’t know why, I don’t know why they treat certain websites differently from others. Yelp, from my experience, you have a much higher percentage of having Google decline to honor a court order regarding Yelp than you do of having them honor it and that’s frustrating because if there’s unlawful content, then it’s unlawful content. I can say this, Yelp has also taken a stance where they disfavor people filing lawsuits against people for making defamatory Yelp reviews. They work under the assumption that all the reviews are free speech and they will post things on their website saying this company has filed a lawsuit against an author of a Yelp posting. I don’t agree with that, and the reason why I don’t agree with that is because just because we have free speech, doesn’t mean we have the right to defame people. We have the right to free action, I can move my arms and legs however I want to move them. That doesn’t give me the right to punch you or to kick you. We have free speech, we can say whatever we want, but I don’t have the right to defame you. That is a tortious act, that is an unlawful act, it’s not protected by free speech. Going in and presuming that all speech is free speech is problematic because people break the law, that happens. We have a society where people break the law all the time. If you don’t allow for people who are victims who have been harmed because of unlawful actions to stop that unlawful harm from continuing to occur, to me that’s a bad thing. I don’t think that you should jump in and assume that everything that’s posted online is true and correct in just a matter of opinion and expression of free speech because it’s not, people go online and use the internet to hurt people. It happens all the time. If you’re a website, if you’re a search engine, if you’re a forum, you need to strike a balance where you allow people to speak where a court has determined after due process that certain speech is unlawful, then in my opinion you ought to remove it.

Going in and presuming that all speech is free speech is problematic because people break the law, that happens.

Are you referring in part to chillingeffects.org when stuff does get removed, Google submits it into Chilling Effects so that Chilling Effects can list the content has been removed?

I’m not referring to that. As far as what the Chilling Effects does, I don’t really have much of a problem with that. They basically want to document when content is removed. The good thing is once that gets in there, it doesn’t really harm the client anymore. It doesn’t continue to show up in Google as a search result. There will be a link at the bottom of the page that says we’ve removed certain content, click here at Chilling Effects to find out why. At that point, you haven’t given them a mirror spot on Google that simply accuses them of being fraudulent or breaking the law or what have you. You go there, you can see that there’s been a legal process, it’s been judicator in their favor. From that perspective, I don’t see Chilling Effects, I think they have the new one right now but essentially it’s the same as Chilling Effects which documenting that I think is fine. Obviously, people can abuse the system. People could obtain court orders in cases where it’s found that there is defamation but maybe in reality the statements were really true. That’s the best system that we have, but keeping a record of all those instances to me seems to be a legitimate thing to do. I think we just need to do the best that we can in society which we have a legal system, it should be respected and honored and pursued, and is designed to protect the rights of everybody involved. Once a court has declared something to be unlawful, then it should not be continued to be published on the internet in my opinion.

Alright. Now, last topic here, damages. There’s monetary damages, actual damages, statutory damages, there’s the ability to escape paying damages if you file bankruptcy. Let’s dig into that a little bit and then we’ll wrap up.

Sure, here’s what you need to know. If you file a defamation case, you can recover actual damages. Whatever damage you’ve lost in terms of your business, maybe it’s also going to include mental anguish. You also can sometimes recover damages for loss to your reputation. You’re not going to be able to obtain statutory damages, that really only comes into play in an internet context in copyright, typically, copyright cases. For defamation, invasion of privacy, you can get your actual damages, defamation cases where it’s considered defamation per se, where it’s presumed that you’ve been damaged, where they accuse you of committing a crime or sexual impropriety. There’s a few other things involved that can constitute defamation per se. They can get presumed general damages. You also can show that they did it with actual malice, they committed the defamation lawfully. You can get exemplary damages which are punitive damages, they’re designed to punish the defendant for doing the act over and above simply making you whole. The thing that often happens in these cases, the person that’s defaming you often times, not all the time but often times, is going to be a consumer that’s defaming a business. They’re not going to have $100,000 in the bank to pay damages to you. Even if you obtain a judgment against them for $100,000 or a $1 million, they can say, “Hey look, I don’t have the money, you can’t do anything about it.” They may also file bankruptcy and say, “Hey look, I’m going to court and I’m basically saying here’s all my assets, these are the liabilities which includes the million dollar judgment in your favor,” they can try to have all the debts that they have discharged after their assets are applied to those debts. In that situation then, your judgment for monetary damages that you acquired against them can disappear. As it turns out, that’s actually not the case. Under Bankruptcy Law, there is an exception for debts or judgments that are made because of a willful or intentional tortious act. Let’s say you beat somebody up, you put him in the hospital, they have all these hospital bills. You’re clearly liable and so you just say, “Hey, I’m filing bankruptcy. You can’t get me, I don’t have any money. I’m filing bankruptcy.” Under this provision of the Bankruptcy Code, you cannot discharge that debt that you owe that person that you beat up. That will follow you forever until you pay it off. The victim in this situation can continue to pursue collection activity against you, they can try to garnish your wages, they can try to freeze your bank accounts, they can hunt for all your assets and it’s going to follow you around forever until you pay it off. In a lot of these cases, it can be very stressful thing to deal with for the rest of your life. You can never buy a house, you can never buy a boat. If you buy a car, it’s not going to be a very nice one. Your credit’s going to be terrible. For a lot of our clients where they’ve been harmed, it’s a very personal thing, they will continue to go after these people but try to have their judgment satisfied forever because they are likely going to continue to feel the effects of what they did for a very long time. Know that, don’t defame people on the internet, it’s a bad thing.

Yes, it is. For people who have been defamed, you’ve given them a ton of really valuable information and strategies to deal with it. Thank you so much. If somebody wanted to work with you, to hire with you to help them go after somebody who has defamed them, to deal with online reputation management issue within Ripoff Report or Pissed Consumer or Complaints Board or wherever else, how would they reach you?

They can reach us, we have our website. It’s hutchersonlaw.com. There’s an online form you can fill out there. They also can certainly call us, the firm number is 214-443-4200 or they can email us at info@hutchersonlaw.com. We do these cases all over the country. We’re based in Dallas, Texas but whenever we do a case outside of Texas we affiliate with local council and send an attorney who’s licensed to practice in that state. We work with them and we get admitted to the case, essentially, along with them. We do the line share of the work because that’s what we do. They are there simply to provide guidance from local practices and stuff like that. The actual case itself we do. We have cases all over the country, I’ve got cases right now inCalifornia, Connecticut, Georgia, of course we have a number in Texas, we have two in Missouri, we’ve got them in New Jersey, we’ve done a bunch of cases in Florida. It runs wherever we need to go, we’ll go. We’ve done them in Hawaii and Alaska too, that was fun.

Awesome. You’re going to be speaking on this very topic at PubCon at Las Vegas.

Yep, down in Vegas in October. Everybody come to PubCon, it’s pretty awesome.

It is a great conference. I do it year after year and I love it each time. Thank you so much Kenton, and thank you listeners. We will catch you on the next episode. This is Stephan Spencer signing off.

Important Links:

Your Checklist of Actions to Take

☑ The Digital Millennium Copyright Act can be effective in having copyrighted content removed, and it’s easy, quick, and inexpensive. Just make sure that you have a valid basis for submitting a removal first.

☑ If you post content on your website that is false and defamatory about somebody else and they sue you, you can’t claim the Communications Decency Act, because you are the author. Don’t do it!

☑ Email Kenton to discuss your legal rights, ask any questions, or to work with him. He is based in Dallas, Texas, but works with people around the country

☑ If you are in Europe, use the Right To Be Forgotten Legislation law, which states that if you’ve been defamed, you can submit a request and ask that the website removes content

☑ If you would like to get defamatory content removed from a website, but aren’t 100% sure of who the author is, use a forensic linguistic expert. They can create a detailed report showing why writing matches a certain person, and give you evidence

☑ If you are going to sue somebody, be prepared for them to fight the case and go to trial. While many times people will admit fault and settle, it could also be a continued fight that will cost a lot of money.

☑ If you have something removed from a search engine, it won’t be removed from competing search engines as well. It’s best to have content removed from Google, than the other engines, as it’s the most popular.

☑ To file a defamation case, you have to do within the statute of limitations, which varies by state. Talk to a lawyer or read up on your state laws to make sure that you’re within that time frame.

☑ If you can’t identify a defamatory author, do a service by publication. You tell the court that you can’t locate this person, and ask to serve them by posting a notice in the newspaper.

☑ If you have a website or forum, you need to strike a balance where you allow people to speak, but are also keeping an eye out for hurtful or untrue comments that should be removed.

About Kenton Hutcherson

Kenton Hutcherson is an Internet lawyer from Dallas, Texas.  He pioneered the practice of obtaining court orders to remove defamatory content from the Google search index.  He has obtained the removal of over 1,000 webpages from Google using this court order technique.

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