When Should Search Engines Ignore Court Orders To Remove Search Results? (Forbes Cross-Post)

By Eric Goldman

Companies and individuals are constantly seeking more effective ways to scrub unwanted online content. One common technique is to get a court declaration that content is unlawful and should be removed, and then send that ruling to websites and search engines anticipating that they will honor the court order. As reported by Search Engine Watch, some attorneys accuse the Bing search engine (a Microsoft property) of recently deciding to refuse all of these court orders. Bing says that’s not true, but the allegations still highlight some important considerations when courts order search engines and websites to remove content.

Background

Search engines aren’t liable for indexing or linking to third parties’ defamatory content due to 47 U.S.C. 230, a 1996 federal law that says websites aren’t liable for third party content. Search engines have defeated numerous lawsuits in these circumstances. See Murawski v. Pataki, Parker v. Google, Mmubango v. Google, the Nieman and Getachew cases and others.

Due to standard civil procedure rules (FRCP 65(d)(2)), courts also cannot force search engines to remove defamatory content when the search engines aren’t a defendant. In 2010, the Seventh Circuit Court of Appeals confirmed that websites could ignore court orders in lawsuits they didn’t defend (see Blockowicz v. Williams involving the Ripoff Report website). The court expressly recognized that victims may lack any legal tool to forcibly remove defamatory content from the Internet.

Despite this, it may be possible to remove defamatory content from search indexes in one of two ways. First, if the originating website removes the content, the search engines will follow suit the next time they re-index the site. However, sometimes the originating website won’t voluntarily remove the content and cannot be legally forced to do so, such as when it’s beyond a court’s reach or relying on Section 230.

Second, the victim can obtain a court ruling that the content is unlawful and then present that ruling to the search engines. Although the search engines aren’t legally obligated to honor the court ruling, for a long time, search engines routinely honored court removal orders. For example, see this Feb. 2011 discussion of the practice (and my criticisms of it).

This near-foolproof way to de-index search engine content created abuse opportunities. Companies and individuals unhappy with unflattering or negative content—even if truthful—can obtain court removal orders with surprising ease. Either they sue the content originator and then offer to settle the case if the defendant stipulates to a court order; or they hope the defendant does not appear in court, at which point they can make unopposed requests to the judge, which are frequently granted unquestioningly.

Bing’s Policy Change?

Over the years, search engines have apparently recognized this abuse and toughened their policy. I believe Google] is paying closer attention to abuses of court orders than it used to. For example, earlier this year I reported how a Google lawyer explained that Google looks for any reason to keep content in their search index.

Bing’s official policy says:

We may remove displayed search results containing allegedly defamatory content. For example, we might remove a displayed search result if we receive a valid and narrow court order indicating that a particular link has been found to be defamatory.

This policy hasn’t changed, but some reputation management attorneys recently claimed that Bing has been categorically rejecting their court orders. A Bing spokesperson told me that Bing does “not categorically reject all court orders where we are not legally bound.” Still, like Google, Bing may have stiffened how it actually reviews court orders.

Implications

Ignoring a court order may sound like it undermines the rule of law, but we should welcome the search engines’ more careful scrutiny of court orders. A “court order” appears to be the official outcome of a rigorous process, but court orders are not all created equal. In particular, courts in ex parte (unopposed) proceedings all too frequently rubber-stamp plaintiffs’ requests because the court only hears one side of the story. The resulting court order often does not reflect a meaningful adjudication of the content’s merits.

A search engine also should ignore court orders that are overbroad. For example, a court may order a defendant to remove an entire post or (even worse) an entire website to redress a single allegedly defamatory statement. I see court orders like this more frequently than you would expect and more frequently than I should.

In these cases where the judicial process may be being abused, search engines should exercise some discretion. Truthful negative content is the most imperiled content in our ecosystem, and search engines sometimes are the only party in a position to keep it from being suppressed.

[Photo credit: rubber stamp marked with law and order // ShutterStock]