In wake of EU decision, Chairman of Rose Law Group Cyber Law Department Chris Ingle discusses ‘’ and defamatory posts on the Internet

chrisBy Chris Ingle

When the European Union recognized the “right to be forgotten” it seemed likely that it would only be a matter of time before there would be a push in the United States to adopt a similar law, or at least amend to the Communications Decency Act to permit courts to order Websites to remove material if it is unlawful in some manner. This decision may be the first step towards such a change.

The Website is notorious for capitalizing on false and defamatory comments posted about other people. A plaintiff seeking to remove such information faces several hurdles.

First, they have to know that there are laws that can help them. Online defamation is relatively new area of law so finding a competent attorney can sometime be a challenge.

Second, they have to file suit before the statute of limitations expires, which is often a challenge in and of itself. In Arizona the statute of limitations is one year, and in some states it is as little as six months. That means that a person needs to know about the comment, hire an attorney, and file a lawsuit within six months after the comment was posted, or else the plaintiff may be time-barred from ever taking action to have the content removed. There are many people who do not notice an Internet posting within that timeframe, and even if they do, most people do not know that there are attorneys who can help them with such things.

Third, the plaintiff must file suit and use a series of subpoenas to identify the author, serve the author with the lawsuit, and prove that the comments were false and defamatory. The plaintiff needs to obtain a signed judgment for defamation because that is the only way to get major search engines such as Google, Yahoo, and Bing to remove such content. If the defendant has assets or a job it may be possible for the plaintiff to recover his or her legal expenses, but often the defendant will be an individual with little or no assets. A plaintiff is often well-advised to focus on getting the content removed as a primary goal, with collecting on the judgment left as a secondary goal.

Fourth, the plaintiff then has to submit the judgment to Google and Microsoft with a request for de-indexing. Google and Microsoft have historically been good about removing Webpages that a court has determined to be defamatory, but their conduct has been a matter of corporate policy, not law. If Google and Microsoft were to start refusing to de-index false and defamatory content there would not be a lot that a plaintiff could do to “force” them to remove that content.

These challenges have created pressure to change our existing law. Online defamation victims would benefit from legislation providing a quick and expeditious way of getting false content removed from the Internet. The European “right to be forgotten” is more expansive; the right to be forgotten extends to true information that is outdates, embarrassing, and irrelevant. Regardless of which way the American public chooses to endorse, either one would be an improvement over the current system. I applaud Justice Tingling for recognizing the problem and suggesting that the United States needs to develop a better way to respond to such incidents.

Rose Law Group has an experienced cyberlaw department that has helped many clients remove false and defamatory information from the internet. If you or someone you know needs help with online defamation please feel free to contact Christopher Ingle at (480) 505-3936.

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