Rexxfield

Interview with Tom Crandall of SEMReportCard.com

Is Google Legally Liable For Defamatory Reviews In Google Maps Business Listings? [Midas]

The expert’s take

Tom Crandall: I reached out to international digital forensic and internet litigation support expert Michael Roberts of Rexxfield, which is essentially an anonymous internet user bounty hunting firm based in USA, Finland, Malaysia and Australia.

See Midas Google maps review screen shot >>>

Tom Crandall: Michael, do the fake reviews I have highlighted damage the Midas brand, legally speaking?

Michael Roberts: Keep in mind that I am not an attorney, and therefore no one should act or refrain from acting on anything I say without first consulting a suitably qualified, and more importantly, experienced lawyer.

Midas is probably a copy book example of a company whose most valuable balance sheet assets are the brands and trademarks. I’m sure they have plenty of bricks and mortar, plant and machinery and other tangible assets, but all of these items can be insured. Whereas, goodwill, trademarks, and brand equity generally cannot be insured although they can be destroyed as thoroughly as a building fire by a relentless brand defamation campaign.

It would stand to reason that such a high-ranking search results, containing so many negative reviews will seriously impact Midas’ ability to obtain new business while retaining existing business customers who might stumble across these reviews. A discerning reader, in most cases, will probably call shenanigans on the basis of this obvious case of rant-spamming. Unfortunately, the millions of people who believe everything Oprah says, and everything they read on the Internet might not be so forgiving; and their money is as green as the discerning folk. Although impossible to measure, there is no question that this malicious and vindictive individual has already cost Midas sales, and is continuing to affect business and revenues. It would probably be a relatively simple case to positively identify the individual who would then, no doubt, be liable for defamation.

Tom Crandall: Does Google have any liability here?

Michael Roberts: This question never goes away! I don’t think there are any cases in the USA where Google or any other search engine has been found liable for this type of situation; at least in the legal sense. This is due to the Internet libel subsidy afforded by the U.S. Congress to Internet service providers who republish defamatory material. I call it a subsidy because if we were to transfer the exact circumstances to a different medium, such as a newspaper, then that publication would certainly be liable for defamation. Either way, from an ethical and moral perspective, I would submit that Google could be found to be deficient in its social responsibilities.

“Don’t be evil” is the informal corporate motto of Google. Legend says that it was originally suggested by Google employees Paul Buchheit and Amit Patel at a meeting. At face value, Google’s motto is noble. However, the boldness of such a sweeping philosophical motto, uttered by such an influential global corporate citizen demands a test, and more importantly a verdict in order to determine the disposition of Google’s original intent. Indeed, history offers some excellent benchmarks for such a test; one such benchmark is mentioned by name in the very law that immunizes Google from legal liability, namely “the Good Samaritan”.

Section 230(C). of the communications decency act (”CDA”) includes the following verbiage:

(c) Protection for “Good Samaritan” blocking and screening of offensive material

1. Treatment of publisher or speaker
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. [emphasis mine]

2. Civil liability
No provider or user of an interactive computer service shall be held liable on account of —

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

I have a few innovative ideas as to how defamation attorneys could approach this Federal immunity issue; I’m sure that rabid, absolute free speech activists will try and shoot me down in flames, and the ideas I have are, by my own admission, quite grandiose. Notwithstanding, something’s got to give as people are literally committing suicide over this 21st Century pandemic.

It should be pointed out that the U.S. Congress added emphasis to the term “Good Samaritan” by framing the term with “inverted commas”; this is a clear indicator of the Law’s intent, particularly when the term is followed by the words “blocking and screening”. Congressional intent notwithstanding, Google has two options available with respect to intercessory relief for a victim who requests removal of defamation which is republished by Google, or indexed on their search engine. These two options are:

Google’s first option:

(a) Specifically provided for in §230(c)2.(A), which in plain English means that Google can remove the offensive materials at their discretion, even if such materials are permitted forms of free speech, without any fear of the author suing Google for interfering with his or her free speech privileges, or;

Google’s other option:

(b) Specifically § 230(c)2.(B), which in plain English means that Google can turn a blind eye to the pain, anguish, and injuries being caused to genuine victims of online defamation and leave that material on any Google services such as blogspot, YouTube etc; and more significantly their search index. This provision removes Google’s fear of the victims suing them for defamation as they could otherwise do and prevail, with any other form of mass media.

The tone of my words probably betrays my position on these issues; notwithstanding, my humility filter will not permit me to declare my views to be consistent as you would with consensus, the law, or common decency. This would be best left to each reader to determine for himself or herself. With that caveat out of the way I would respectfully submit the following:

Consensus: My presumption is that the average six-year-old and average discerning adult would apply the common meaning of the words used to outline the United States Congress’ intent for the matters outlined in the CDA. In doing so consensus would indicate that Google should err on the side of caution and charity when an allegedly defamatory publication is propagated through their services. Ergo, as a corporate Good Samaritan Google should “[take] action voluntarily taken in good faith to restrict access to or availability of [the] [libelous] material [that is causing harm to the individual who is challenging the assertions published by the speaker/author]”

The Law: There are probably now hundreds of lawsuits in which Google and other Internet service providers have been given a get out of jail free card because of the libel subsidy and Congressional immunity afforded by §230(C). As I stated previously, I am not an attorney and I make no excuses for my un-artful layman’s legal assessment; respectful comments and criticisms are welcome. Notwithstanding, a common sense reading of this law led me to the conclusion that many attorneys are not earning their fees. My conclusion hinges on the use of the word “information” in CDA § 230(c)1. There are several definitions of the word but in this context I would submit that the following Webster’s dictionary definition applies:

“The attribute inherent in and communicated by one of two or more alternative sequences or arrangements of something that produce specific effects”

In a nutshell and in the context of § 230(c)1 I believe “information” means a series of alphabetical and numerical characters, which when viewed in their entirety and in the full context of the original author’s work, convey certain meanings, facts and in most instances conclusions. Whereas, when a victim of defamation has a tiny part of the information sampled by the Google search engine and displayed in position three of page one of search engine results for his or her name, no reasonable person would argue that this “Google snippet” is the same information as the original work because it is completely out of context.

Although it would be a tough battle, particularly against Google’s huge war chest and legal team, if I were an attorney for a client who has been demolished by Google’s ambivalence and refusal to remove libelous materials, then I would be arguing that Google is in fact the author and creator of NEW information about the victim and therefore liable for defamation. Allow me to now bring in to the mix the scenario where a potential customer is searching for a specific vendor, who has been defamed. He or she is presented with numerous alternative vendors in the form of Google AdWords from which Google derives huge revenue streams. I believe that a talented litigation team could argue that this is in fact a “scheme” as defined by Title 18’s RICO racketeering provisions; i.e. Google, enters into a scheme with the victim’s competitor who buys keywords related to the victim’s business; and the two of them enter into a scheme with a third-party website administrator who displays the Google AdWords on the page that defames and injures the victim. In doing so, Google, the competitor, and the web administrator all benefit financially at the expense and burden of the victim of said libel. This is a stretch I know, but I think it is worth arguing nonetheless. And one should not forget that Congress asked for RICO to be liberally construed, while it gave no such admonition in the case of the CDA. Furthermore, an interesting provision in §230 is 230(e). That part specifically exempts Title 18 (Federal criminal laws) from the restrictions of the rest of §230, including the exemption from liability for third party hosts (re-publishers) of Internet libel.

Furthermore, if Google was ordered to produce all the data (and information) they have collected with respect to user experiences within their search engine portal, I posit that there would be a significant indication that Google Snippets containing defamatory material will often cause users to seek out alternative vendors or consultants as a direct result of the said negative results. I believe that my hypothesis would be validated by the certain fact that Google has received thousands, if not hundreds of thousands of requests from individuals who have been injured by malicious Internet defamation in the billions of Google Web Pages and search results. If true, then Google’s obligation and duty of care to individuals in the community grows exponentially. In fact, in some common law jurisdictions this might open up an ancient legal count of “Scienter” [1]; the root being “science” as in knowledge, specifically prior knowledge. Scienter refers to intent or knowledge of wrongdoing. This means that an offending party, in this case Google, has knowledge of the “wrongness” of an act or event prior to committing it. In this case I submit that it is an act of omission on Google’s part as opposed to an act of commission. I.e. doing nothing to ease the emotional, financial, and social anguish of a defamed individual when thousands of similar complaints have been received is intrinsically evil. Scienter could be argued further if my theories on Google’s Humility Algorithm are accurate; in fact, this would take Google from an act of omission to an act of commission, but that is a discussion for another day.

Common Decency: The standard has been set time and time again — the law of charity is written in our hearts and I do not believe that Congress chose Jesus’ analogy of the Good Samaritan by coincidence. Which one of us will walk by if we see somebody lying bleeding in the gutter without helping him or her? Why then should Google not do the same? After all, defamation is considered by the law to be a personal injury. So much so that malicious libel is still a criminal act in 17 US States and most of Europe and Asia, just as it is for a victim of a hit-and-run.

Tom Crandall: What options does the leadership of Midas have to protect their brand?

Michael Roberts: This is above my pay grade because I am not a brand management expert or search engine optimization practitioner; but common sense would dictate that Midas should at least:

  1. Contact Google and point out the obvious shenanigans with respect to these reviews. The obvious first response would be to flag all of the comments as inappropriate. Google has provided for this with a simple link within Google business listings, but I would also follow through with direct contact with their legal compliance team as these postings violate Google’s Terms of Service.

  2. Encourage happy customers to post reviews in the Google maps and street view databases;

  3. Monitor their brand and trademarks online with tools like Cymfony, Trackur and Google Alerts (google.com/alerts) to watch out for these types of threats;

  4. Engage Rexxfield to positively identify their antagonist in the full light of day (tongue in cheek shameless plug). In the past we have been able to obtain temporary restraining orders (“TRO”) compelling antagonists to remove similar postings, and I give kudos to Google for honoring those same orders as if they were specifically named therein, even if the antagonist does not comply.

  5. Ask Midas’ general counsel (attorney) to earn their keep and act on this threat.

Tom Crandall: Thank you, Michael!

Original Story Here >>>

[1] In general, scienter is knowledge of a fact or event. Simply being aware of something is not enough for either a criminal or civil prosecution. There has to be a duty to do or not do something, and other elements unique to the criminal or civil tort case. Duties are often determined according to laws on the subject, such as the RICO statute or section 230(C). In most cases, if the law doesn't agree with the duty you are trying to impose, you can forget about it.

Scienter is not a tort, in other words, and it also is not a criminal offense on its own.

Scienter: http://www.lectlaw.com/def2/s006.htm

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