Another Failed Effort to Remove a Ripoff Report Posting–Karnaby v. Mckenzie
By Eric Goldman
Karnaby v. Mckenzie, 2012 WL 2149457 (Conn. Super. Ct. May 10, 2012)
Fadi Sabastian Karnaby sued Mckenzie, a pseudonym, for allegedly false postings to Ripoff Report and other sites. The Ripoff Report posting in question. For reasons that aren’t clear, Karnaby apparently didn’t seek discovery for the identity of Mckenzie from the various review websites. Instead, Karnaby got permission to “serve” the complaint against Mckenzie by posting the case details in the Ripoff Report rebuttal box (see comment #2 in the prior URL). When Mckenzie no-showed in response to this so-called “notice” (surprise, surprise), Karnaby sought a default judgment.
Karnaby’s request puts the judge in a pickle. If Karnaby hasn’t definitively identified Mckenzie, then how will anyone know that the person uniquely associated with “Mckenzie” violated the injunction? To me, this highlights the weakness of “serving” Mckenzie via a Ripoff Report rebuttal; that gives us zero comfort that Mckenzie got actual notice of the suit. Contrast Fortunato v. Chase Bank. For all we know, Mckenzie did a dump-n-run at Ripoff Report and provided a bogus or never-checked email address to Ripoff Report, ensuring that no notification would ever reach him/her. Contrast that with, say, service via Facebook, where it’s much more likely that users are checking in regularly, and it may even be possible to check the person’s Facebook account to see if they’ve continued to use the account after notice was sent via Facebook.
Instead of monkeying with the injunction request, the judge really should have blown the whistle on the service issue. That leads to the next curiosity, which is why Karnaby hasn’t more aggressively pursued Mckenzie’s unmasking? Overall, it looks like Karnaby tried to cut some corners and pushed the system too far.
The judge also expresses concern about Karnaby’s specific injunctive requests, saying that the requested injunction was too broad and overly restricts future speech. Finally, the judge refuses Karnaby’s request that Mckenzie be required to take down the posted content, saying that the court can’t monitor the execution of that request in addition to the other deficiencies.
Of course, even if the court issued the injunction, Karnaby’s plan for removing the Ripoff Report posting isn’t entirely clear given Ripoff Report’s well-known no-takedown policy. Mckenzie doesn’t have the legal rights to remove the report him/herself any more, and the court can’t force the Ripoff Report as a non-litigant to remove the posts either. See the Blockowicz and Giordano cases. So I’m scratching my head wondering how Karnaby planned to get around Blockowicz/Giordano. Or, if there was no plan, then what was the point of seeking the injunction in the first place?
One possibility is that Karnaby hoped that the search engines would deindex the post based on the default judgment. I discuss that tactic here. Alternatively, Karnaby might have saved some time and money by taking advantage of Ripoff Report’s VIP arbitration program. Even though it may be anathema to pay money to Ripoff Report to ameliorate a review in its own database, at least it would have been cheaper than running to court.
Meanwhile, I’m always a little intrigued when a plaintiff can’t get its requests in a default judgment. As we’ve recently noted, judges seem so willing to accommodate plaintiffs in a default judgment (e.g., 1, 2) that it’s shocking when a judge seriously pushes back. Sometimes that’s a tipoff that, even without any adversarial proceedings, the plaintiff or his/her lawyers found a way to cheese off the judge (see, e.g., Nexon v. Kumar).