The Internet has a long memory. When someone objects to material posted online—a critical blog post or a harsh Yelp review, for example—it can be hard to have it removed. Generally, Google and other platforms won’t remove material simply because they’re asked. When presented with a court order, however, they tend to comply. This policy has opened the door for a creative new strategy identified by Eugene Volokh and Paul Alan Levy in a recent op-ed published in The Washington Post: phony lawsuits.
Volokh and Levy lay out several fishy examples. In one case, Matthew Chan (who lives in Georgia) posted a critical Yelp review of a Georgia dentist, Mitul Patel. Displeased, Patel hired a “reputation management company.” The company, on Patel’s behalf, filed a complaint and a motion for consent judgment against a Matthew Chan who supposedly lives in Baltimore in a Maryland circuit court. The motion contained Chan’s forged signature and indicated that Chan consented to an injunction requiring him to take down the critical Yelp review. None the wiser, the state court issued a consent order and the requested injunction against Chan. Yelp was made aware of the consent order (presumably by the reputation management company) and contacted the original Chan, who had no knowledge of the lawsuit, to inform him that it would be removing his comment.
Thankfully, the Chan case has seemingly been straightened out—both Chan and Patel have filed motions to vacate the consent order and the post remains on Yelp. (Suspiciously, Patel also claims to have known nothing about the lawsuit.) But Yelp now prompts viewers of Patel’s page with a “consumer alert”: “This business may be trying to abuse the legal system in an effort to stifle free speech, including issuing questionable legal threats against reviewers. As a reminder, reviewers who share their experiences have a First Amendment right to express their opinions on Yelp.”
However, the Chan case is part of a broader pattern. Volokh and Levy identified 24 other cases around the country involving phony take-down lawsuits. Although they couldn’t identify who is behind the majority of the cases, they did tie at least four of them to Richard Ruddie, who owns a site called “Profile Defenders,” which claims to help clients “get these unwanted listings removed, not just hidden from the search results.”
This phony-lawsuit strategy has broader consequences. As Volokh and Levy point out, it bears on a case pending before the California Supreme Court, Hassell v. Bird. There, a plaintiff filed (a non-phony) lawsuit against a Yelp user and obtained an injunction requiring Yelp to take down the user’s comment, even though Yelp wasn’t a party to the suit. As Volokh and Levy explain, the issue in Hassell is “whether takedown injunctions can actually be made legally binding on Internet platforms, rather than just being something that platforms choose whether to follow.”
From Volokh’s perspective, “[i]t’s precisely as if someone got a default judgment against one of our commenters, on the theory that the comment was defamatory or invaded privacy or some such, and the judgment ordered me to take down the comment. That can’t be right, I think: I have my own First Amendment right to distribute user comments (indeed, that is Yelp’s primary mission, and one aspect of my mission), and I should have my own opportunity to argue that a particular comment fell within one of the First Amendment exceptions.” Thus, making these injunctions binding on a non-party would be a mistake, particularly given the possibility of phony lawsuits like Chan.
The solution to the phony-lawsuit strategy isn’t clear. It’s easy to imagine that companies like Google and Yelp see quite a few of these injunctions, so stricter scrutiny of the circumstances of each case might not be a burden these companies are willing to bear. However, courts, including the California Supreme Court in Hassell, could partially insulate platforms from the phony lawsuit problem by holding that a take-down injunction obtained in a defamation suit between third parties is not binding on an Internet platform.
At a minimum, as pointed out by the Consumer Law and Policy Blog, judges need to take a closer look at cases like Chan’s. Even when presented with a consent order purportedly signed by both parties, a Baltimore suit involving a Georgia consumer criticizing a Georgia dentist should have tipped off the judge.
—Mark Doré ’18