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April 13, 2009
Blogspot Sued for Dead Blogger's Content--Davis v. Google
By Eric Goldman
Davis v. Google, 09 CH 15753 (Cook County Ct. complaint filed April 9, 2009)
Venkat sent a very interesting lawsuit this morning that raises some complex policy issues. The complaint alleges that Sean Healy created a blog at unknowncolumn.blogspot.com and posted defamatory content about speedskater Shani Davis' mom, Cherie Davis. [I believe the post in question is at http://unknowncolumn.blogspot.com/2006/02/memo-to-cherie-davis.html -- I'm not going to link to it, but it did show up as my first search result for "Cherie Davis"]. The complaint further alleges that Healy is now deceased, so he can no longer remove the content on Cherie's demand, and he did not have a "probate estate" to take over his blog. As a result, Cherie feels like she has nowhere to turn to clean up the alleged defamation, so she is suing Google's Blogspot for a takedown injunction.
On the face of it, the lawsuit is clearly preempted by 47 USC 230, and Google ought to get a quick and unambiguous win. However, there are some lurking policy issues about dealing with online content posted by now-deceased individuals:
* Presumably the content and the account passed through Healy's estate. Even if there was no "probate estate," whatever that means, there is still a legal protocol for succession of Healy's assets--including the copyrights in his blog. So someone now owns Healy's blog, and it should be possible to determine who that is.
* Even if the legal rights have been allocated, taking control over a deceased accountholder's account is not always easy. The last time I recall this issue being discussed, it was in the context of taking control over deceased military personnel's email accounts. Online providers have different policies about how to deal with this--and for good reason, as too loose a policy could enable account hijacking, plus there may be concerns about the deceased accountholder's privacy. I wonder what Blogspot's policy is. This issue won't come up often, but it will definitely come up again.
* If Cherie can't sue Healy's estate, instead of suing Blogspot, I wonder if Cherie could seek a declaratory judgment that the content is defamatory. I would be shocked if Blogspot wouldn't honor a declaratory judgment in Cherie's favor, and it's not exactly like Healy would contest it.
* If Blogspot won't voluntarily remove the content, I wonder if Cherie could have more cost-effectively achieved the same net result through a reputation management service. A good reputation management service should be able to obscure several year old content that hasn't been recently refreshed.
Posted by Eric at April 13, 2009 08:52 AM | Content Regulation , Derivative Liability
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