Google Isn’t Required To De-Index Negative Ripoff Report–Fakhrian v. Google (Forbes Cross-Post)

We’ve frequently seen that many people want a “magic wand” that would allow them to decide exactly what search results Google shows for their names. Hence, the popularity of the so-called “right to be forgotten” in Europe, with nearly 1.5M requested URLs removals at Google to date. However, as highlighted by a recent courtroom win by Google, US law gives search engines like Google wide latitude to keep third party search results in their indexes–even if the indexed content is legally problematic.

The case involves an allegedly defamatory Ripoff Report post about entertainment industry professional Beatrice Fakhrian. Ripoff Report has generated substantial legal friction because (1) it only asks for negative reviews, (2) historically it had an absolute policy against removing user posts, even if defamatory (Ripoff Report has since slightly relaxed its absolutist stance), and (3) Ripoff Report’s venerability causes its posts to show up highly in Google’s search results. Seeking to excise the negative Ripoff Report posting from Google’s search results for her name, Fakhrian sued Google.

This is an easy case from a legal standpoint. In 1996, Congress enacted 47 USC 230 (Section 230), which says websites–including search engines–aren’t liable for third party content. Fakhrian’s lawsuit sought to hold Google responsible for the Ripoff Report post, which the court says is exactly what Section 230 prevents. To get around Section 230, Fakhrian argued that she informed Google that the post was defamatory, but Section 230 applies even if there’s notice of the allegedly problematic content. The court also dismissed Fakhrian’s complaint for waiting too long to sue; the post was made in 2008 and she didn’t sue until 2014, and the defamation statute of limitation is typically one year from publication date.

This ruling doesn’t break any new ground legally. Search engines, including Google, have previously used Section 230 to defeat lawsuits over third party content in their indexes (see, e.g., Ask.com’s 2007 win in Murawski v. Pataki, and see this roundup post); plus the First Amendment further limits the liability of search engines for their indexing decisions.

Still, the case highlights the growing disparity in the legal regulation of search indexes between the United States and the rest of the world. Due to Section 230 and the First Amendment, it is difficult or impossible for individuals in the United States to legally dictate what search results show for their names; while the rest of world increasingly is transferring search engine indexing decisions into the hands of plaintiffs and regulators. While the US legal rules do leave open the possibility that false or harmful information will remain in search indexes, the rules also help preserve negative truthful information from unwarranted scrubbing–and without negative truthful information, the marketplace of ideas will be grossly distorted.

Case citation: Fakhrian v. Google Inc., 2016 WL 1650705 (Cal. App. Ct. April 25, 2016). Unfortunately, like so many other California appeals court decisions, the court designated the opinion as non-precedential.