Once upon a time, not so long ago, there was no such thing as the Internet. Information and news came from your local newspaper, television, or radio channel. Research was done in good old fashioned books, often at your local school, university or public library. If the content you were seeking was “old” chances are you had to go look at microfiche. For those that are young enough to have no clue what I’m talking about, watch this video. Then BOOM! Along came the internet! Well, sort of. It was a slow work in progress, but by 1995 the internet was fully commercialized here in the U.S. Anyone else remember that horrible dial up sound followed by the coolest thing you ever heard in your life “You’ve got mail!“?
As technology and the internet evolved so did the ease of gathering and sharing information; not only by the traditional media, but by every day users of the internet. I’ve dedicated an entire series of blogs called Fighting Fair on the Internet just to the topic of people’s online use. Not every person who has access to the internet publishes flattering content (hello Free Speech) nor do they necessarily post truthful content (ewww, defamation). Of course, not all unflattering content is defamatory, so it’s not illegal to be a crap talker, but some people try to overcome it anyway. Either way, whether the information is true or false, such content has brought about a whole new industry for people and businesses looking for relief: reputation management.
Leave it to the entrepreneurial types to see a problem and find a lucrative solution to the same. While there are always legitimate ethical reputation management companies and lawyers out there doing business the right way (and kudos to all of them)…there are those that are, shall we say, operating through more “questionable” means. Those that want to push the ethical envelope often come up with “proprietary” methods to help clients which are often sold as removal or internet de-listing/de-indexing techniques that may include questionable defamation cases and court orders, use of bogus DMCA take down notices, or “black hat” methods. In this article I am only going to focus on the questionable defamation cases that result in an order for injunctive relief.
BACKGROUND: QUESTIONABLE DEFAMATION CASES AND COURT ORDERS
UCLA Professor, Eugene Volokh and Public Citizen litigation attorney, Paul Alan Levy, started shedding public light on concerns relating to questionable court orders a few years ago. In an amicus brief, submit to the California Supreme Court in support of Yelp, Inc. in Hassell v. Bird, Volokh offered his findings to the court discussing how default proceedings are “far too vulnerable to manipulation to be trustworthy.”
As the brief says:
Injunctions aimed at removing or deindexing allegedly libelous material are a big practice area, and big business….But this process appears to be rife with fraud and with other behavior that renders it inaccurate. And this is unsurprising, precisely because many such injunctions are aimed at getting action from third parties (such as Yelp or Google) that did not appear in the original proceedings. The adversarial process usually offers some assurance of accurate fact finding, because the defendant has the opportunity and incentive to point out the plaintiff’s misstatements. But many of the injunctions in such cases are gotten through default judgments or stipulations, with no meaningful adversarial participation.
The brief further pointed to seven (7) different methods that plaintiffs were using to obtain default judgments:
(1) injunctions gotten in lawsuits brought against apparently fake defendants;
(2) injunctions gotten using fake notarizations;
(3) injunctions gotten in lawsuits brought against defendants who very likely did not author the supposedly defamatory material;
(4) injunctions that seek the deindexing of official and clearly nonlibelous government documents – with no notice to the documents’ authors – often listed in the middle of a long list of website addresses submitted to a judge as part of a default judgment;
(5) injunctions that seek the deindexing of otherwise apparently truthful mainstream articles from websites like CNN, based on defamatory comments that the plaintiffs or the plaintiffs’ agents may have posted themselves, precisely to have an excuse to deindex the article;
(6) injunctions that seek the deindexing of an entire mainstream media article based on the source’s supposedly recanting a quote, with no real determination of whether the source was lying earlier, when the article was written, or is lying now, prompted by the lawsuit;
(7) over 40 “injunctions” sent to online service providers that appear to be outright forgeries.
Well, isn’t that fun? Months after the brief was filed in Hassell, Volokh published another article with the title “Solvera Group, accused by Texas AG of masterminding fake-defendant lawsuits, now being sued by Consumer Opinion over California lawsuits.” What was clear from all of this is that website owners who have been victims of the scheme are likely watching and the authorities are too. The US Attorney Generals office in the District of Rhode Island and the State of Texas both took interest in these situations…and I suppose it is possible that more will be uncovered as time goes on.
So how are these parties getting away with this stuff? With the help of unscrupulous reputation management companies, associated defamation attorneys…and, unfortunately, trusting judges. Some judges have taken steps to correct the problem once the issue was brought to their attention. As for the attorneys involved, you have to wonder if they were actually “duped” as this Forbes article mentions or do they know what they are doing? Either way, it’s not a good situation. This isn’t to necessarily say that every attorney that is questioned about this stuff is necessarily guilty of perpetrating a fraud upon the court or anything like that. However, it should serve as a cautionary warning that this stuff is real, these schemes are real, clients can be really convincing, and if one isn’t careful and fails to conduct appropriate and precautionary due diligence on a client and/or the documents provided to you by a client…it could easily be a slippery slope into Padora’s box. After all, no one wants to be investigated by their state bar association (or worse) for being involved with this kind of mess.
Yes, there have been lots of great articles and discussion shedding light on the subject but the question then becomes, how do you tell the difference between a legitimate situation and a questionable situation? The answer: recognize red flags and question everything.
RED FLAGS THAT SHOULD CAUSE YOU PAUSE
In December of 2016 I had the pleasure of traveling to Miami, FL for the Internet Lawyer Leadership Summit conference to present, for CLE, on multiple topics including this subject. At that time I provided the group with some “red flags” based upon information I had then. Since that time I have gained an even greater knowledge base on this subject simply by paying attention to industry issues and reading, a lot. I have now compiled the following list of cautionary flags with some general examples, and practical advice that, at minimum, should have you asking a few more questions:
RED FLAGS FOR ATTORNEYS
- If the entity or person feeding you the “lead” is in the reputation management industry. You want to do some due diligence. You could be dealing with a total above board individual or entity , and the lead may be 100% legit, BUT the industry seems to consist of multiple “companies” that often lead back to the same individual(s) and just because they are well known doesn’t necessarily mean they are operating above board. Do your homework before you agree to be funneled any leads.
- If the client is asking you to make some unusual adjustments to your fee agreement. Your fee agreement is likely pretty static. If the client is requesting some unusual adjustments to your agreement that make you feel uncomfortable, you might want to decline representation.
- If the client already has “all of the documents” and you don’t actually deal with the defendant. We all want to trust our clients, but as some counsel already experienced, just accepting what your client tells you and/or provides you as gospel without a second thought can land you in hot water. Consider asking to meet the defendant in person or have them appear before a person licensed to give an oath and check identification, such as a notary public of YOUR choosing to ensure the defendant is real and that the testimony that they are giving in the declaration or affidavit is real. You want to make sure everything adds up and communication by telephone or email may not protect you enough. When it comes to documents provided by the client, or the alleged post author, watch for the following:
- Ensure that the address listed on any affidavit or other document isn’t completely bogus. Run a search on Google – is it even a real address? For all you know you could be getting an address to the local train track.
- Ensure that any notary stamp on an affidavit is inconsistent with where the affiant purports to live. It will rarely make sense for an affiant list their address as, for example, Plains, New York but the notary stamp suggests the notary is based out of Sacramento, California. It will make even less sense if the affiant supposedly lives out of country, but is being notarized by a notary in the states.
- Ensure that the notary is actually a real notary. You can typically find record of notaries with the Secretary of State that the notary is in. Make sure they are a real person. If you really want to be sure that they actually signed your document, and that it wasn’t “lifted” from elsewhere (yay technology) check in with the notary and/or see if their records are on file somewhere publicly that you can check.
- If the entity alleged to be the plaintiff isn’t actually a real entity in the state that they are purporting in the complaint to be from. If the plaintiff is supposed to be ABC Ventures, LLC out of San Diego, California, there should be a record of ABC Ventures, LLC actually listed, and active, on the California Corporation Commission website. The people that you are talking to also should, in theory, be the members/managers of such entity too. For example, if you are always talking to a “secretary” you might want to insist on a more direct contact.
- If the person or entity listed to be the plaintiff isn’t actually listed in the subject URL in the complaint. If a plaintiff is going to bring a case, they should at least have standing to do so. You should be cautious of any plaintiffs that aren’t actually at issue or fails to have a valid direct connection that would give them standing to bring the claim.
- If the subject post doesn’t contain any defamatory statements in the first place. Just because a post isn’t flattering doesn’t mean that it is actually defamatory. Similarly, public documents aren’t typically seen as defamatory either. Who is saying it is false? Why is the statement false? What evidence supports the allegation that it is false?
- If the subject posting is outside of the statute of limitations for bringing claims in the state in which you intend on filing. Now I know that some may disagree with me, and there may be bar opinions in different states that suggest otherwise, however, if you are presented with a post that is outside of the statute of limitations to bring a claim for defamation, subject to the single publication rule, and there is no real reason for tolling (like it was held in a secret document not generally public – which pretty much excludes the items on the internet) that may be of concern to you. I wrote before on why statute of limitations is important, especially if you are the type to follow ABA’s Model Rules of Professional Conduct, Rule 3.1. Even here in Arizona the bar has raised in disciplinary proceedings, in connection with other infractions, concerns about bringing claims outside of the statute of limitations, citing a violation of ER 8.4(d). See generally, In re Aubuchon, 233 Ariz. 62 (Ariz. 2013).
- If a case was filed in a wholly separate state from the Plaintiff and Defendant and you are asked to be “local counsel” to marshal documents to court or simply to submit it to a search engine like Google. It is not improbable that local counsel will be called to assist with basic filings or to submit an order to Google. It may be possible that such documents contain questionable materials. It’s always a good idea to review the materials and give it a heightened level of scrutiny before just marshaling them off to the court or search engine. This is especially true if the Plaintiff is no longer associated with prior counsel and is just looking for a different lawyer to help with this “one thing” as if a submission from an attorney bears more weight that anyone else submitting it.
- If the plaintiff claims to already know who the author of a subject alleged defamatory post is, yet the post itself is anonymous. Yes, it is possible that based on an author’s content, and how much detail is placed in such post, that one might be able to figure out who the author is. However, in my experience, many authors tend to write just vague enough to keep themselves anonymous. If that is the case, without a subpoena to the content host, how does one actually know who the author is? Some states like Arizona have specific notice requirements for subpoenas that are seeing identifying user information which require notice being posted in the same manner, through the same medium, in which the subject posting was made. If a notice isn’t present on the website, there likely wasn’t a subpoena (assuming the website requires strict compliance with the law). Mobilisa, Inc. v. Doe, 170 P.3d 712, 217 Ariz. 103 (Ariz. App., 2007).
- If the case was settled in RECORD TIME. Often these matters are being “resolved” within a few weeks to only a couple months. As most of us know, the wheels of justice are SLOW.
- If the case is settled without any answers or discovery being done. This goes to my prior point about knowing who the real author is, or, for that matter, that the allegations in a subject post are even false.
- If notice about the case was not personally served by a process server. Many states allow certified mailing for service. Do you really know who is signing that little green form and accepting service? Was some random person paid to sign that?
RED FLAGS FOR JUDGES (Consider all of the above generally plus the following)
- If a Complaint is filed and shortly thereafter a stipulated judgment is presented requesting injunctive relief without the defendant ever actually making an appearance. This seems to be one of the more popular tactics. A way to curb this kind of abuse would be to hold a hearing where all parties must appear, in person (especially the named defendant signing the stipulation) before the court before any such injunctive order is signed and entered.
- If an attorney files an affidavit of making a good faith attempt in order to locate the defendant but discovery was never conducted upon the hosting website. Many sites will respond to discovery so long as their state laws for obtaining such information (like Arizona’s Mobilisa case) is followed. Arguably, it is disingenuous for an attorney to say they have tried when they really haven’t. Chances are, the real author may not even know about the case and entering a default judgment under such circumstances deprives them of the opportunity to appear and defend against the matter.
- If you order the parties to appear and then suddenly the case gets dismissed. It thwarts the scheme when the court requests the parties to appear. If this happens, in a defamation related case, it could be seen as a red flag. The plaintiff may very well try to dismiss the action and simply refile under a different plaintiff and defendant name but for the same URL that was originally filed in the prior dismissed action.
- If the order for injunctive relief contains URLs that were not originally part of the Complaint. Sneaky plaintiffs and their counsel may attempt to include other postings, from the same or different websites, that are not really at issue and/or that were arguably written by other individuals. Make sure that the URLs listed on the order are all the same as what is listed on the complaint.
- If the complaint contains a host of posts, with wide range of dates, and the syntax of the posts are different yet the plaintiff claims that it was written by the same person. In my experience, very rarely (though it does happen) will one person go on a binge and write a bunch of different posts about one person or entity. There are typically more than one author involved so if any statement to the alternative should raise a red flag.
Some journalists that have been tracking these kinds of matters think that these schemes may be nearing an end. I would like to think so, however, in my opinion these problems are far from over unless unsuspecting attorneys, judges, and even websites and search engines get a little more cautious about how they process these court orders for content removal, especially if they are older orders. I have already discussed why I thought search engine de-indexing isn’t necessarily a viable reputation management solution and in part that is because, arguably, at least for now, Section 230 of the Communications Decency Act bars injunctive relief, i.e., there is no obligation for websites to remove content anyway. If a platform or search engine decides to remove content or otherwise de-index content, at least here in the U.S., they are doing so based upon their own company policy…not some legal duty.
In a perfect world none of these issues would exist. Unfortunately, that’s not the world we live in and the best we can do is be vigilant. Hopefully, through this article, I have provided some food for thought for attorneys and judges alike. You never know when such a situation will arise.