[Manila Principles] [CyberProf] Libel takedown frauds

Daphne Keller daphnek at law.stanford.edu
Wed Oct 12 10:48:24 PDT 2016


What Lillian describes -- defendants being legitimately summoned but not
appearing -- also happens here, and leads to default judgments.  You see
those sometimes in counterfeiting cases against defendants outside the US,
often in China. There's a pattern of plaintiffs trying to get (and getting)
orders that purport to bind entities like DNS providers or search engines
in those cases - Eric Goldman has covered this well in his blog.

What's going on here is different, it seems to involve getting a signed
agreement by the "defendant" agreeing to an order. That makes the case move
much faster than a default judgment would. It shouldn't be possible to sue
a fake defendant, and there are safeguards against it including service of
process requirements, so something is going wrong there -- shady behavior
by the plaintiffs, errors by the court, or both.

The orders here aren't against Google. In the US, where intermediaries do
not have to remove content for claims like defamation because of CDA 230,
many platforms will nonetheless agree to voluntarily remove content if a
court has adjudicated it to be defamatory in a case against the actual
speaker. The idea is basically "don't make the platforms adjudicate, but if
a court has done so we'll respect its conclusions."  Some platforms think
this gives too great an opportunity for gamesmanship - including the kind
Eugene and Paul illustrate here. Ripoff Report in particular had a
longstanding policy that if they received such a court order, they would
append it to the allegedly defamatory post so people could see it, but they
would not take the post down.

On Wed, Oct 12, 2016 at 7:20 AM, Palazzi, Pablo <ppalazzi at udesa.edu.ar>
wrote:

> Hi Daphne
> In Argentina you should do the service of procces personally, these cases
> are a fraud and would justify the judge imposing a pecuaniry sanction on
> plaintiff and sending the case to the Bar Ethic Committe if there is proof
> that the lawyer was involved.
>
> What I do not understand is why Google is taking down this with such
> decision. Google is not a party to the injunction...?
> Pablo
>
>
> 2016-10-12 6:36 GMT-03:00 Jef Ausloos <jef.ausloos at law.kuleuven.be>:
>
>> Hi Daphne,
>>
>> Fascinating research!
>> I was wondering though, how this is even possible? To me, it seems like
>> these cases are almost entirely due to negligent/sloppy work by the courts?
>> Maybe I am overseeing something, or I’m being ignorant about the US court
>> system. In Belgium, when a person is sued, a bailiff will verify the
>> identity of the defendant and summon that person.
>> => Non-existent/fake defendants will quickly be unmasked
>> => When the defendant is a 'real person’ (but not the author of the
>> post/comment/…) and agrees with a complaint/takedown, there is nothing much
>> that will prevent a judge from ordering the removal. But still, this
>> scenario seems not very scalable.
>> => Realistically, these types of cases in Belgium would be dealt with
>> through a unilateral procedure (where the author/uploader/… cannot be
>> identified). In this case, the judge will have investigate/assess the merit
>> of the claim and the actual author will have an opportunity to intervene.
>>
>> Happy to hear how other jurisdictions would deal with this!
>>
>>
>> Best,
>>
>>
>>>> Jef AUSLOOS
>> Doctoral Researcher
>> *KU Leuven Centre for IT & IP Law – imec*
>>
>> Sint-Michielsstraat 6 box 3443, 3000 Leuven – BELGIUM
>> [t] +32 16 32 52 63
>> [e] jef.ausloos at law.kuleuven.be
>> [w] law.kuleuven.be/citip <http://www.law.kuleuven.be/citip> - imec.be
>> Advanced Master (LLM) of Intellectual  Property & ICT Law
>> <http://www.law.kuleuven.be/brussel/en/education/intellectual_property_rights/intellectual_property_rights>
>> CiTiP Social Media: Twitter <https://twitter.com/citip_kuleuven> – Blog
>> <https://www.law.kuleuven.be/citip/blog/> – Linkedin
>> <https://www.linkedin.com/groups/7460524> – Google+
>> <https://plus.google.com/108976068267003284996/posts>
>>
>> On 11 Oct 2016, at 20:28, Daphne Keller <daphnek at law.stanford.edu> wrote:
>>
>> Apologies for cross-posting.  This detective work by Eugene V and Paul L
>> is remarkable for people following US takedown practice.  They found 25
>> court orders adjudicating Internet content defamatory, all seemingly
>> obtained by suing fake defendants and entering fake stipulations - the goal
>> being to provide Google with court orders supporting removal of web search
>> results.
>>
>>  https://www.washingtonpost.com/news/volokh-conspiracy/wp/20
>> 16/10/10/dozens-of-suspicious-court-cases-with-missing-defen
>> dants-aim-at-getting-web-pages-taken-down-or-deindexed/ .
>>
>>
>>
>>
>>
>> --
>> Daphne Keller
>> Director, Intermediary Liability
>> Center for Internet and Society
>> Stanford Law School
>>
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>
>


-- 
Daphne Keller
Director, Intermediary Liability
Center for Internet and Society
Stanford Law School
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