The Volokh Conspiracy | Opinion
April 18, 2017 at 8:02 AM
I've been blogging over the past several months about people using various tactics to try to get Google to "deindex" Web pages — remove them from Google indexes, so that Google users won't see them in search results. If you send Google a court order finding the material on some pages to be defamatory, Google will consider deindexing those pages, on the theory that the court order is fairly reliable evidence that the pages are indeed inaccurate and libelous. But the consequence is that people have been using various stratagems to deindex material even when there's little reason for such confidence.
Here's another twist, which some people have used to try to deindex mainstream news articles (though without any success, to my knowledge, because Google seems skeptical of these particular requests) — they (a) sue the people quoted in the articles, (b) get stipulations from the people recanting their allegations, (c) get court orders based on those recantations and then (d) try to use those court orders to deindex an entire article.
Now, if a media organization gets such a recantation from one of the sources they quote, the editors would reasonably ask: Was the source lying then, or is he lying now? If the editors are persuaded that the recantation is accurate, they might well publish a correction, or revise or even take down the original article. But if they think that the original report was accurate, and the recantation was coerced using a lawsuit, they might stand by their story.
When a plaintiff sues the source, though, gets a stipulation and submits the order to Google with a deindexing request, the plaintiff is trying to short-circuit the news organization's review of the matter. Instead, the plaintiff wants to just get the original story hidden, with no independent evaluation of whether the story was and continues to be correct.
Consider, for example, Ball v. Saurman. A Ventura County Star article had quoted Sandee Saurman as sharply criticizing J. Kiely Ball's hearing aid company. Ball sued Saurman, who eventually agreed to a stipulation in which she stated that her original allegations were false. A court then issued an injunction, which was submitted to Google for deindexing of the newspaper article. If the Court of Appeal decision were upheld, Google would have had to deindex the Ventura County Star article even though neither the Star nor Google had an opportunity to independently examine Saurman's recantation.
Or consider Welter v. Does, an Arizona case filed by Kelly/Warner, a law firm I've written about before. Megan Welter made the national news as an Iraq War veteran who became an Arizona Cardinals cheerleader, but then made the news again when she was arrested for allegedly beating her boyfriend, Ryan McMahon. Two years later, Welter filed a defamation lawsuit against McMahon, and McMahon submitted a stipulation saying that his original allegations were false. (It is impossible to tell from the record whether the signer of the stipulation was indeed the real Ryan McMahon, but let us assume that he was.)
Welter then got an injunction stating that McMahon's allegedly defamatory statements were posted on ABC News, Fox Sports, CBS News and USA Today, presumably because articles on those sites were based on those statements. And the injunction stated that defendant must take all actions, "including requesting removal of the URLs from all internet search engines … to remove all such webpages and cache from the Internet, such that the Content is rendered unsearchable." Again, because this was a stipulated judgment, there was no factual determination of whether McMahon's statements were actually defamatory. For a similar example, see Desert Palm Surgical Group v. Petta, which was used to try to deindex a CNN Money article.
As I mentioned, fortunately today Google (and other search engines to which these orders are submitted) can decline to implement such deindexing requests, taking the view that a stipulated judgment based on a source's recanting (under legal pressure) is no reason to vanish a news story that relied on the source. A California Court of Appeal decision last year (Hassell v. Bird) suggested that Internet companies may have a legal duty to enforce such orders, but the California Supreme Court is reviewing that decision.
[Note that part of this post is based on an item that my students Alex Gianelli, Kristin Halsing and Ashford Kneitel, and I cowrote.]