How to Obtain a Court Order to Remove Content From the Internet

How to Obtain a Court Order to Remove Content From the Internet

August 7, 2020 | Consumer Complaint Websites, Images and videos, Internet Content Removal, Nude Photos & Pornography, Online Consumer Reviews, Search Engine, Shaming Websites, Social Media

By: Andrew Stebbins, Attorney and Brinton Resto, Attorney and Aaron Minc, Principal & Founder

Many clients come to us feeling frustrated that a website or search engine is refusing to remove defamatory or damaging online content. Sometimes the negative content is a fake Google review, sometimes it is a false post on a shaming website, other times it is a negative news article riddled with inaccuracies and defamatory statements.

After helping our clients successfully remove hundreds of thousands of pieces of negative online content over the years, we have seen nearly every form of damaging online content and know the best ways to approach and achieve removal.

The question many clients ask when they contact us is whether (and how) they can force an individual, website, or search engine to remove online content. Especially when many of these websites, including search engines, are immune from liability under the law. The simple answer is often that they need to obtain a court order. However, like many legal questions, whether a client should go through the process of obtaining a court order to resolve their situation depends on many factors.

The decision of whether to pursue litigation to get a court order is a serious one that should always be considered carefully. There are many benefits and risks to lawsuits that need to be taken into account. Using a court order to address online content is a powerful tool that can help clients accomplish their goals. However, it is not a panacea to every online problem and will not always be necessary or the most appropriate way to resolve every situation. It is important for clients to consider all options and alternatives.

In situations where obtaining a court order is an appropriate course of action, following these simple steps is the surest way to get a court order to remove content from the internet:

• Determine whether you need a court order and its necessary to get the content removed;
• Identify the author of the online content and notify them that the content is unlawful and should be taken down;
• File a lawsuit against the author of the damaging content;
• Establish a legal basis for removal and win your lawsuit; and
• Draft a court order with appropriate language and have it granted by the court.

In this comprehensive article, we will also explain::

• What a court order is and when you should seek one,
• Pros and cons of court orders,
• Best practices for obtaining a court order,
• How to enforce your court order, and
• Common alternatives to court orders for removing damaging online content.

We will start with a brief overview of court orders and why they may not be useful or necessary in every case.

Contents

• What is a Court Order & When Do I Need One?
• Pros & Cons of Obtaining a Court Order to Remove Online Content
• How to Get a Court Order to Remove Content From the Internet
• Alternatives to Obtaining a Court Order to Remove Content From the Internet
• Minc Law Can Help You Obtain a Court Order to Remove Online Content

What is a Court Order & When Do I Need One?

The reality of today’s digital landscape is that people frequently formulate their first (and sometimes only) opinion of you or your business based on what your digital footprint tells them. Just as a positive digital footprint can uplift your social life and standing in the community, or your business’s bottom-line, a negative digital footprint or defamatory piece of information can derail it just as quickly.

There is no denying that the internet can be a hostile place. A plethora of internet websites exist and are dedicated solely to defaming, shaming, and attacking individuals and businesses. Prime examples are websites such as TheDirty.com, RipoffReport.com, ShesaHomewrecker.com, and PissedConsumer. There are however thousands of others who have also established themselves as go-to places to carry out these acts of sabotage to reputations.

What is more, these websites dedicated to defaming people and tearing businesses down are largely protected by the federally enacted internet law known as Section 230 of the Communications Decency Act (CDA). Section 230 of the CDA was drafted with modern-day search engines and websites in mind, establishing a near-blanket immunity for platforms that display content posted by third-parties.

As a result, many search engines and websites have policies in place preventing the removal of content by anyone and under any circumstance, regardless of the truthfulness of the content or damage caused. Sometimes, websites may agree to remove content for a one-time or monthly fee, or with the brokering of its removal through a costly third-party arbitration service.

Understandably, this has generated intense frustration and stress for individuals and businesses that have been unfairly defamed or attacked on these sites.

However, in cases where a platform or author is unwilling or unable to remove damaging online content, an injured party may seek a court order to secure its removal.

What is a Court Order? Court Order Definition

Court orders are an official proclamation issued by a judge or court directing a person or business to either undertake an action or refrain from performing a particular action. Court orders may be issued as a final order at the conclusion of a legal action or an interim order during a legal action.

Court orders can be broken down into four fundamental types:

• Stipulated: an order where two parties consent;
• Default: an order issued when the defendant does not show up;
• Dispositive Motions: orders won off motions like summary judgment; and
• Injunctions: orders won by temporary and preliminary injunctions for expedited relief.

Most court orders are written and signed by a judge, but may also come in a verbal form that is subsequently reduced to writing in a proceeding’s transcripts.

Depending on the matter at hand, the substance and provisions of a court order may vary greatly. However, common matters that are typically addressed in the terms of a court order include: divorce decrees, restraining orders, child custody, protective orders, criminal sentences, and online content removal.

For example, a court order could address something as simple as mandating a party to attend a trial or court date. Or, a court order could address something as complex as the complete restructuring and enforcement of contractual provisions between tech companies in a multi-jurisdictional dispute. It can also declare a winner or loser of a party’s legal claims or lawsuit.

So, what are the main reasons why we seek court ordered removals to take down online content, comments, and posts?

Do I Need a Court Order to Remove Content From the internet?

There are many reasons as to why a person would need to remove certain content from the internet. In some cases, a personal disagreement may escalate to the point where one party decides that it would be a good idea to spread lies, falsehoods, and other untrue information online.

In other circumstances, an individual may be the victim of online harassment. For example, by drawing the ire of a group of internet vigilantes who decide to “dox” the individual by publishing an array of personal and potentially protecting information online. This information can include the target’s:

• Name,
• Address, Social Security number,
• Financial account numbers,
• Medical records,
• Place of employment, and
• Other personal details.

In other scenarios, a youthful or momentary indiscretion may have resulted in the publication of news, media, statements, images, or other materials that are compromising or cast the individual in an unfavorable light.

While most of the time, victims of damaging online content (and their lawyers), such as defamatory attacks and libelous posts, can confront (or sue) an author who published unlawful content and have them access the website and take down the content with relative ease, this is not always the case.

User-generated content platforms and websites (UGCs), often enable users and posters to comment and post anonymously, so identifying a malicious poster/troll can be extremely difficult. This often results in an extremely complex process to identify a poster and ultimately remove the online content in question.

Additionally, in some situations authors of damaging and unlawful online content can forget their logins or passwords, and no longer have access to an account to be able to remove content that they published. Other times websites have policies that do not allow for removal by the original author, require a court order to remove the content, or have a no removal policy.

When these types of circumstances are present, Court ordered online content removals are required when a person has no other options for removal. Specifically, they should be sought in the following instances:

• When a victim is unable to remove the content themselves,
• When the author of unlawful and damaging online content refuses to remove the content voluntarily,
• When the author who published the online cannot be identified and their is no other way to take the content down,
• When the website or ISP in question refuses to remove content and the author of the content also cannot remove it (search engine de-indexing),
• When the website or ISP in question explicitly requires a court order to remove content, and
• When circumstances dictate it is the most efficient and effective way to stop the continued publication or republication of unwanted content.

Pros & Cons of Obtaining a Court Order to Remove Online Content

Court orders are extremely effective tools that a lot of internet companies, websites, and search engines voluntarily respect and follow. Most companies, websites, and search engines actually have policies in place acknowledging their legitimacy. However, obtaining court orders do risks and other cons that must be carefully considered..

Both the pros and cons of seeking a court order should be thoroughly weighed.

Pros of Court Orders

Court orders are nearly recognized by everyone as being legitimate and trustworthy. They are considered the “final stamp of authority” which recognizes the “actual evidence” of a specific online and legal violation. The pros of seeking a court order to remove online content include:

• They are broadly accepted and followed by most internet service providers;
• There is no limit to the types of claims that can be brought to obtain the court order;
• It can directly confront and eliminate the problem at its source;
• Can de-index content from search results when it cannot be removed at its source;
• Can be used to take down and transfer entire domains;
• Can award monetary relief;
• Can prevent future harm; and
• It provides ultimate vindication of your reputation.

Court Orders Are Accepted By Most Internet Service Providers

While websites, search engines, and companies are not legally obligated to honor court orders, most have policies in place acknowledging their authority and will voluntarily honor them. Unfortunately, the digital landscape for websites, search engines, and companies honoring court ordered removals is ever-changing and fickle.

Because of this uncertain digital landscape, it is imperative that you speak with an experienced internet attorney to maximize your chances of securing a court order that will be honored if you plan on obtaining one.

There is No Limit to the Types of Claims That Can Be Brought to Obtain a Court Order

Injured parties seeking to remove online content with a court order are not restricted to arguing just one legal claim, like defamation, to obtain relief. For example, an injured party seeking a court order might argue that a damaging piece of online content is defamatory, infringes a copyright, violates criminal law, or is part of a broader breach of contract action involving the parties.

Ultimately, relief by court order can be obtained through orders obtained by default, stipulation, or a contest judgment. So there is no limit to the types or strategy behind the claims that can be brought when seeking a court order.

To obtain appropriate relief an injured party is precluded from arguing any type of claim that can get them to their ultimate goal. This makes court orders a very flexible tool that increases the chances of successfully removing damaging content.

Court Orders Confront the Problem at its Source

Court orders confront the problem at its source, meaning that injured parties must directly confront the perpetrating party to stop their unlawful behavior. When the problem is finally solved under these circumstances, there is complete resolution.

When content is removed from the internet websites without directly notifying or confronting the person who published the content of their improper conduct, this can leave open the possibility that the person will simply just re-publish the content again.

Unmasking and confronting a perpetrator directly addresses this risk and ensures that the person will permanently cease from engaging in future unlawful and harassing online behavior.

Court Orders Can De-Index Content From internet Search Results

Court ordered content removals can lead to the de-indexing of damaging, unlawful, and unwanted content from internet search results. This is helpful in situations where content cannot be removed from a website directly.

De-indexing a web-page removes it completely from internet search results, so that a search engine’s “crawler” does not detect it, index it, and subsequently return it as a result to an internet searcher’s query.

Although not as good as complete removal of the content at the source, it is the next best thing and great remedy if completely removing content from a website itself is not an available option.

Court Orders Can Be Used to Take Down & Transfer Entire Website Domains

If a website domain is created and used to post unlawful content and harm your reputation, it is possible to direct your court order to the registrar where that domain was registered to have them transfer control of the entire domain to you. Generally speaking, domain registrar companies (GoDaddy, NameCheap, BlueHost) have policies that they will cooperate with court orders of this nature.

For example, if John Smith gets divorced and his ex-wife buys the domain <johnsmithwifebeater.com> to publish defamatory and unflattering things, John Smith can obtain a court order to either take down the website, eliminate it from search results, or transfer the entire domain to himself and remove the damaging content himself.

In the 2010 case of Office Depot Inc. v. Zuccarini, 596 F.3d 696, 702 (9th Cir. 2010.), DS Holdings LLC, the assignee appellee, sought to collect a judgment on hundreds of domains owned by the defendant, Zuccarini. The transfer of the domains generated significant discussion about:

• Whether domains are in fact subject to execution of a judgment, and
• Where domains are located for purposes of execution.

Ultimately, the court held that domain names were subject to execution of a judgment and located both where the domain registrar and registry were for purposes of execution.

Court Orders Can Reward Monetary Relief

Court orders do not only grant equitable relief to an injured party, but can also reward monetary relief as well.

Monetary relief is a form of compensation awarded to an injured party that commonly takes the form of provable damages, attorneys’ fees, lost profits and wages, punitive damages, and other damages attributable to the harm suffered.

Court Orders Can Prevent Future Harm & Damaging Content

Not only does a court order direct persons and websites to undertake specific actions to deal with present problems, it can also order perpetrators to refrain from engaging in future unlawful behavior, such as further publication of defamatory content or harassment.

Knowing that a perpetrator is legally prohibited from repeating their unlawful behavior gives injured parties peace of mind moving forward.

Court Orders Can Vindicate Your Reputation

A successful court order may vindicate an injured party’s reputation by providing a public record and judgment that acknowledges a harm or violation occurred.

Court orders make it known to everyone, including the injured party, defendant, and general public that the damage was (a) caused by the defendant, and (b) wrongful in the eyes of the law. It is the ultimate victory that can never be taken away that you were right and they were wrong.

Cons of Court Orders

While court orders can be effective tools for removing online content, they are not a panacea for resolving all matters involving damaging online content. Several cons of seeking a court order to remove damaging and negative content include:

• Not all websites remove content when they receive a court order and may have policies that limit their effectiveness or enforcement;
• Can be cost prohibitive and take too long to get;
• You are not guaranteed to get one. You have to win a lawsuit.
• May not cure the problem if you do not identify or directly confront the defendant;
• The risk of drawing unwanted attention and causing the Streisand Effect, making the defamatory matter a public record; and
• You have to notify and confront the antagonist.

Not All Search Engines & Websites Honor Court Orders

Unfortunately, not all search engines and websites honor valid court orders. For example, Google’s honoring of court ordered content removals has changed over the past five years and is highly dependent on the legal issue at hand. Google still accepts court orders to de-index defamatory content from its search results, but it is more stringent and discerning about what it removes than it used to be.

Some legal experts suspect Google’s changing policies regarding court orders stems from increased content removal requests by authoritarian regimes and governments and a rise in unethical reputation management agencies abusing the removal process for profit.

In today’s dynamic online content removal landscape, it is imperative therefore that you work with an experienced internet lawyer to ensure that you tick all of the necessary boxes before seeking a court ordered removal and presenting it to search engines and websites to ensure success.

Court Orders Can Be Cost Prohibitive & Take Too Long

Filing a lawsuit to obtain a court order takes a lot of work. There are numerous costs, fees, and filings required to commence a lawsuit, such as:

• Initial intake, investigations, and pre-lawsuit due diligence;
• Research and drafting the complaint;
• Court costs and filing fees;
• Process server and service costs;
• Local counsel fees;
• Pre-lawsuit communications and demand letters; and
• Subpoena fees and costs (especially in John Doe lawsuits).

Lawsuit costs are also significantly influenced by whether a case is contested or uncontested, meaning whether there is an opponent on the other side of your case fighting back or not. While the above list is far from exhaustive, it provides a sound snippet into some of the key costs necessary to file a lawsuit.

Litigation is also time intensive. One of the most influential factors that drives the total length of a lawsuit is whether it is contested or uncontested. For example, the average uncontested case at Minc Law typically takes anywhere from six to seven months. On the other hand, contested cases can take a significantly longer amount of time and the total time it takes to litigate can be difficult to predict.

To find out more about the costs associated with filing a defamation lawsuit, check out our article “How Much Does a Defamation Lawsuit Cost?”

Obtaining a Court Order is Not Guaranteed

While most search engines, websites, and internet companies have policies in place acknowledging the authority of a court order and will generally voluntarily honor them, there is no guarantee that a court of law will even issue a court order in the first place. You do have to win your case or come to some sort of stipulated agreement approved by a court to be able to get one.

Securing a court order requires an injured party to successfully prove all the requisite elements of their legal claim(s), and will not be granted should they fail to do so.

Court Orders May Not Always Fix the Problem

Obtaining a court order is not always a cure-all for damaging online content and internet attacks. It is rare. However, sometimes some problems are so extreme and circumstances are so unique that even a properly obtained order that confronts an author still will not resolve the issue.

For example, one jewelry company CEO, Michael Arnstein, was attacked and defamed online by former website developers based in India. The perpetrators launched a barrage of click-fraud attacks and reputation smearing campaigns on popular review websites. Arnstein secured several valid court orders to remove defamatory content from specific URLs, however, the attacks and defamatory postings continued.

Arnstein enlisted the help of the FBI and did everything he could to enforce the court orders, but this was ultimately unsuccessful.

Court Orders Can Draw Unwanted Attention to Your Matter

Damaging internet content and online defamation are highly sensitive issues that most injured parties do not want broadcasted to the entire world. Seeking a court order to remove or suppress damaging content and online defamation could have adverse effects by making the matter a public record and drawing unwanted attention to your internet issue. This phenomenon is also referred to as the Streisand Effect.

The Streisand Effect occurs when an attempt to suppress private information does the opposite by drawing viral attention to a matter so that a lawsuit and court order’s intended goals are rendered obsolete because the complete removal of the damaging content is now impossible (or near impossible). Increased attention and/or the Streisand Effect does not happen in most cases.

Experienced internet attorneys take proper measures to minimize this risk from happening when a case is filed. However, it is always a small risk that must always be considered.

Court Orders Require You to Notify & Confront the Antagonist

To obtain a court order, injured parties are generally required to take reasonable steps to notify and confront the antagonist behind the damaging online content. Confronting a perpetrator can be both complicated and daunting.

Further, poking the proverbial bear may ultimately be a detrimental course of action that can outweigh the benefits. Every situation is unique and must be weighed/judged accordingly.

For more information on how to get a court order and have your content removed from the internet, read the rest of this blog post in its entirety at the Minc Law Blog at the following link. https://www.minclaw.com/how-to-secure-effective-court-ordered-removal-online-content/