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One year ago, I reported on the sad case of a jewelry company CEO, Michael Arnstein, who was arrested for forging court orders to remove negative content about his company from Google’s search results. His case highlights the lack of protection and justice available for online defamation victims like him. He’s now been sentenced to prison in what is largely a hollow victory. Read on to see how this is yet another nail in the coffin of Section 230 protections enjoyed by major internet companies like Google, Facebook, Twitter, Yelp, and others. Legislators are listening to cases similar to this one, and pressure is building to change the law.

The U.S. Justice Department’s press release about Arnstein’s sentencing focuses solely about the criminal act, and grandstands a bit about their “victory,” U.S. Attorney Geoffrey S. Berman is quoted, stating:

“Michael Arnstein’s blatant criminal scheme to exploit the authority of the federal judiciary for his company’s benefit was outrageous. As Arnstein has learned, his attempts to remove negative reviews about his business from Google search results by forging a U.S. District Court judge’s signature may have worked in the short term, but it also earned him nine months in a federal prison.”

However, the press release makes it sound like he just committed a fraud for the sake of profit, like any run-of-the-mill greedy thief, and provides no context to understand that there’s far more to this than the glib statement. In fact, Arnstein’s action sought to obtain only what the very same federal court had originally intended to give him – relief from an egregious, costly, damaging and sustained attack upon his family business. He was trying to get back what a cybercriminal had lost him and cost him in extortion.

Backstory on Michael Arnstein and the reputation attacks

Michael Arnstein’s company, the Natural Sapphire Company, suffered truly egregious attacks over the course of many months from their former website development providers that were based overseas in India. The contractor sabotaged their ecommerce website, launched click-fraud attacks upon their PPC ad campaigns, and severely attacked their reputation through emails sent directly to their customers and posted numerous damaging lies about the company in online reviews and websites. (I described this in detail in my article last year, CEO who forged court order to get Google to remove defamation faces prison).

There’s zero question as to the guilt of the person that perpetrated the attack on this U.S. company. After the FBI and justice system was unable to extradite the individual, and after Arnstein was unable to get help from a frequently-corrupt justice system in India, he ultimately paid the extortion demanded by his attacker. The damage suffered by his company, and the costs to try to recover and pay the extortion took up all his available money. His attorney cleverly required a signed “contract” (a binding contract cannot be made when one party is under duress – such as if a party is being illegally extorted into agreeing to the contract terms), and the perpetrator signed the admissions identifying the defamatory materials in the agreement, agreeing to try to remove them.

It was on the basis of the criminal’s admissions that Michael Arnstein’s attorney was able to go to court and obtain a judgment that legally decided that these various online postings were defamatory and that they should be removed. Arnstein’s attorneys sent the URLs of the identified defamation to Google, but this is where things went awry yet again for Arnstein and his company: Google dragged their feet on responding to the removal request, and once they did respond, they elected not to remove all the identified URLs, and/or some of the material was now appearing on yet other URLs.

Unfortunately, Arnstein ran dry on money necessary to pay yet further legal fees to get further court documents. Once one obtains a defamation court order like this, there is a short time period in which one may more easily submit a revision/addendum request to the court without opening a whole new legal case for the additional URLs discovered. Google’s delay in response, and then Arnstein’s inability to pay further legal fees combined to make it much harder to get the help that he needed to unravel the damage caused by the extortionist. He would have to go back to court in a new lawsuit to get further court orders.

Online defamation victims find it difficult to get false damaging content removed

I have seen similar things happen in other cases. Note that Google is quite pedantic about one identifying URLs of defamatory materials in a very specific manner. In one past legal case, I saw how a defamation victim’s attorneys had submitted URLs where defamation had appeared, including on Google’s own hosted group forums, but the pages involved were infinitely-scrolling, so Google’s removal review staff apparently didn’t bother to scroll far enough to verify the presence of the materials cited, or their management software did not verify the presence of the exact text because it didn’t review more than just the initial page text, ignoring the AJAX/Javascript delivered content of the infinitely-scrolling page (Google’s crawlers have long been challenged by infinite-scrolling pages).

In yet other instances, defamation appears on index pages of blogs and forums, but in the period of time between attorneys submitting removal requests and Google’s reviews, the content has moved off to subsequent pagination. In yet other cases, a submitted URL redirects to another URL, so Google’s staff pedantically states that the defamatory material is technically not present on the URL that has been requested to be removed.

Also, I have reported in the past how some of the sites that are infamous for hosting damaging defamatory materials that target individuals and companies are changing the content URLs as soon as they detect that Google has removed a page from search results. (See: Is Ripoff Report Subverting Google take-downs?) This exact issue was and is occurring with Arnstein’s case — I personally verified that one of the URLs in Arnstein’s original, legally-obtained court orders was this URL of a Ripoff Report page:

After Arnstein got his court order specifying that this URL was false and defamatory and should be removed, Ripoff Report moved the page contents to a new URL – which is still indexed by Google:

Arnstein apparently copied his original court order in order to add in these sorts of new URLs to petition Google to remove them from appearing in search results when people searched for “Natural Sapphire Company.” It’s not unusual to have to go back to Google multiple times for follow-up requests for removals because of the situations I outlined above – content moves to new pages due to pagination, Google ignores some content because they’re not careful enough about infinite-scrolling, and some of the worst sites out there are purposefully moving the content around to defy Google’s removal actions.

Because this is more than merely a black-and-white case where some guy tried to forge court orders for personal gain, I wrote an amicus curiae brief to the judge, urging for leniency. Because of the public interest in this case, and for the sake of the many people who are defamation victims who are struggling to get relief, I have made a copy of my brief available here.

In the amicus brief, I pointed out to the judge just how elusive justice is for defamation victims in this country. In 1996, our legislature knowingly provided liability protection in Section 230 of the Communications Decency Act for online publishers of content created by third-parties in order to enable those companies to make more money. Some could argue that this immunity for many online websites is contrary to a great many years of traditional case law in the offline world, where publishers can be made to assist defamation victims in trying to rescind or remove defamatory materials. But, this immunity for the sake of greater profits (and to foster the growth of the internet itself) is a defacto, tacit agreement to declare online defamation victims to be an “acceptable collateral damage” in return for greater profits.

Legislators are considering regulations

Legislators are now acknowledging that this situation needs to be addressed. In a recent op-ed piece in USA Today, Senator Mark Warren introduced a white paper of proposals for potential new regulations for tech companies. In his white paper, Warren suggests that it’s time for the legislature to remove some of the Section 230 immunization for these companies in defamation cases. He also noted how victims have to repeatedly request removals from the companies like Google in a “whack-a-mole” scenario, and how content gets replicated, and how those companies often delay in responding – which describes exactly what Arnstein endured when he was in extremis:

“Currently the onus is on victims to exhaustively search for, and report, this content to platforms – who frequently take months to respond and who are under no obligation thereafter to proactively prevent the same content from being re-uploaded in the future. Many victims describe a ‘whack -a- mole’ situation. Even if a victim has successfully secured a judgment against the user who created the offending content, the content in question in many cases will be re-uploaded by other users.”

Senator Warren further suggests that these companies could employ system processes that automatically detect and remove content that has been legally identified as defamatory, rather than forcing victims to iteratively report each and every specific URL where it appears. (This is exactly one of the solutions that I recommended four years ago in a European case against Google where a victim’s solicitors kept having to repeatedly go back to Google to request more of the literally thousands page URLs where false and defamatory content was being published.)

Internet publishers and distributors need to be made responsible

Google, Microsoft, Facebook, Yelp and other companies complain some about the cost of being required to help victims in such instances with removing defamation. Google does largely voluntarily assist (albeit with their prissy demand for precise URLs that I described earlier that obstinately refuses to handle redirected URLs, pagination and the like), even though they do not have to. So, they are already absorbing these costs.

Other companies operating in Europe are absorbing these costs under the right-to-be-forgotten laws over there. And, these companies are already handling a great many procedurally similar types of takedown reviews for copyrighted content. I’ve even published previously an idea on how these companies could collaborate for a content removal clearinghouse in order to substantially save on the common costs for processing removal requests. These companies in recent times are not overtly mentioning costs as an argument for keeping their Section 230 protections, likely since that would seem quite cruelly mercenary in contrast with the human suffering that has been endured because of these issues.

But, make no mistake that inception of Section 230, and resistance against changing it since then is all about money.

Some of the companies that take cover under Section 230 have purposefully engineered themselves to perpetuate harm. Defamation court orders often direct the defamer to assist their victim by removing the bad things they have published. Where websites, blogs and some social media are concerned, the badguys can be required to take down stuff, and the large company platforms need not get involved. However, the companies that make it impossible for authors to remove content simultaneously declare they should not be held responsible for it, all the while that it is very easy to enable content authors to edit or redact things when they have been directed to do so. These companies should either be required to take down court-ordered defamation readily, or they should enable the perpetrators to do it themselves. No-brainer.

Now, there are a number of law commentators, such as Eugene Volokh, and Eric Goldman, that have essentially built a peanut gallery of responses over time in defense of Section 230, largely centered around fairly ivory-tower, academic caselaw arguments touting Section 230 immunity and corporations’ rights of freedom-of-speech. None of these pundits seems to ever also take into account the human cost of not removing false defamatory content — nor the fact that it can render it difficult to establish personal relationships, that it can ruin otherwise exemplary businesses, and that it causes severe psychological and monetary damages that may not be overcome if left unchecked.

Defamation is a tort.

While there are types of speech that are not protected, including defamation, the Section 230 evangelists argue unironically that defamation deployed through large corporate platforms should not be required to be removed because those companies deserve free speech protection — involving speech that does not even originate from the protected companies!

The issue isn’t that companies should be protected because it’s the law. The issue is that these companies have provided a bully-pulpit platform where people may very easily publish content that utterly ruins others, and in many cases, the same companies are the primary, best and only options in the associated entities to help heal the harms that their platforms have facilitated. They can afford it, and the stuff in question is absolutely not “protected speech”. The law needs to be changed.

If things worked right, Arnstein would not be headed to prison

For those of us with an insider’s view of defamation cases and online reputation management, Michael Arnstein’s situation is something that should not have happened.

First, online publishers should be made responsive to court-ordered defamation removals, similar to how they have been made responsive to copyright removal demands. While Google does voluntarily respond, other online services like Microsoft’s Bing search engine does not, and sites like Ripoff Report will not aid victims, even when the evidence of false defamatory statements is unassailable.

Second, it would behoove Google to lighten the load on defamation victims by automatically detecting content shown via court orders to be defamatory — rather than pedantically requiring ongoing lists of new and emerging URLs where similar/identical content is to be found. A defamation victim should ideally only have to go to Google once. And, Google could do a better job of intelligently reviewing the takedown requests — it’s very easy to see that content will move due to new content being added to active sites, moving the prohibited content off to subsidiary pages over time. Redirects should be handled fluidly, and sites that are side-stepping Google’s removals by changing page URLs, such as Ripoff Report, should be penalized.

Third, websites where people are invited to post comments and business reviews should allow the authors to modify or delete their material, at least in the cases where a defamation court order has been obtained.

Fourth, Google and other large forum providers might collaborate with the community by providing insights in how to better battle defamation. If you do not want to be forced to help, then look towards how you can better help the victims to the point where there is no impetus to modify the law.

Finally, online service providers should respond in a reasonable timeframe to court-ordered removal demands.

If Google had been more responsive to Arnstein’s initial court-ordered removals, and had not delayed in responding for weeks, this entire tragic situation would not have occurred. Instead, they narced on him to the Justice Department, who promptly arrested him for taking what the federal court had given him.

If Google assisted victims of sustained attacks of this sort better, they might have been able to proactively identify all related attack materials, rather leaving the entire onus on Arnstein and his legal team to come back with new removal requests, time after time.

If sites like Ripoff Report were legally required to allow defamers to remove damaging content, this also would have helped to address some of Arnstein’s issues. Instead, Ripoff Report denies such takedown requests.

Finally, the legislature and the courts themselves should take into account how legacy methods of obtaining court orders to address defamation may no longer be functioning the way they used to — if there had been easier provision for victims to return to get necessary modifications to add in further URLs discovered subsequent to the initial court order, this also would have likely provided Arnstein with the assistance he needed to obtain relief. When sustained reputation attacks occur, one often subsequently discovers more and more related attack materials over time.

Currently, there’s a big, fat hole where people are damaged and sometimes no one can be made responsible to fix it. There are thousands of people who have been hurt through online reputation attacks, and are desperate to get help, but the forums hosting their attacks cannot be compelled to help them. Arnstein committed a wrong act, but he deserved relief that Google’s procedural requirements and the justice system had denied him.

It is time to modify Section 230 of the Communications Decency Act, and relieve all the desperate defamation victims out there like Michael Arnstein.

Opinions expressed in this article are those of the guest author and not necessarily Search Engine Land. Staff authors are listed here.

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