Contributor, The Volokh Conspiracy

1. Laurence Sharos has what he describes as “a minor criminal record”: In 1999 (when he was 46), he pleaded guilty to “criminal sexual abuse” in Illinois, and was sentenced to a year of probation. The online Illinois state court records in the case are not specific about what exactly Sharos did, and when I asked his lawyers for more details, I wasn’t given any. But according to court records, which report his crime as “CRIM SEX ABUSE/FORCE/1ST,” it appears to have been “commit[ting] an act of sexual conduct by the use of force or threat of force,” which was at the time a misdemeanor. “Sexual conduct” was in turn defined as “any intentional or knowing touching or fondling by the victim or the accused, either directly or through clothing, of the sex organs, anus, or breast of the victim or the accused … for the purpose of sexual gratification or arousal of the victim or the accused.” (The definition could alternatively cover sexually motivated touching or any part of the body of a child under 13, but this likely was not involved here.) The crime therefore was likely unwanted sexually motivated fondling.

The site SexOffenderRecord.com then scraped this information from Illinois court records, and posted it in various places, such as here. That page, for instance, is labeled “Illinois Sex Offender Archive Record,” describes the offense as “CRIMINAL SEXUAL ABUSE/FORCE,” and includes an address and birth date and other material, apparently drawn from court records; similar pages are present on other sites that seem to be connected to SexOffenderRecord, such as SORArchive, PublicRecordRepository, and WebExpressVentures. There’s also a field saying “Supervision/Registration Details / Status: Compliant” on many of the pages (and “Registration Status: Compliant” on a few). A Google search for “Laurence Sharos” finds this information.

2. Now Sharos’s lawyers, Aaron Minc and Debra Horn, have gotten a court order concluding that these pages about Sharos are “false and defamatory,” are false and place Sharos “in a false light,” and “disclosed facts concerning Plaintiff’s private life” in a way that is “not of legitimate concern to the public.” The order specifically refers to plaintiff’s asking that the items be removed from Google, and Horn has indeed so asked. (The order was likely drafted by the plaintiff’s lawyers, as such proposed orders often are.)

Yet it’s not clear that these statements — which the order describes as being “that Plaintiff is a sex offender and or registered sex offender” — are false: Sharos is indeed a sex offender, in that he committed a sex offense. And the pages don’t expressly label Sharos a “registered sex offender” in the sense of indicating that he has been found unusually dangerous enough to have to be on a sex-offender registry; the most that can be said about them is that they have that “Supervision/Registration Details / Status: Compliant” or “Registration Status: Compliant” notation.

I doubt that a reasonable person would read the gist of these statements as being something other than what’s accurate: Sharos has a conviction for a sex offense labeled “criminal sexual abuse/force.” And I don’t think that publishing such data from public records can qualify as actionable disclosure of private facts (see Gates v. Discovery Communications, Inc. (Cal. 2004) and Florida Star v. B.J.F. (1989)). One can argue about the ethics of such posting, in the absence of a notation that the crime is from 1999. (In the past, one might have also faulted the site for charging people a fee to have their records reviewed for possible removal, but that no longer seems to be happening, and wasn’t alleged in the complaint in this case.) Legally speaking, though, I think the posting is likely not tortious, and is indeed constitutionally protected.

Of course, maybe I’m wrong, and Minc’s motion for judgment so argues. Indeed, one case that Minc cited, King v. Semi Valley Sound, LLC (Ohio Ct. App. 2011), concluded that listing a sex offender under the heading “registered sex offenders” is false light invasion of privacy, even though it is not defamation. I think King was right that such a statement wasn’t actionable defamation, since its gist is not materially more damaging than the truth — as the court put it, “being falsely identified as a ‘registered’ sex offender” would not lead a person “to be subjected to ridicule, hatred, or contempt, or injure him in his trade or profession beyond what he would be subjected to simply by being [accurately] identified as a sex offender.” But I think King was mistaken in failing to apply the same analysis to the false light claim. As a different Ohio decision (Mann v. Cincinnati Enquirer (Ohio Ct. App. 2010)) suggested, the principle that a statement isn’t actionable if its gist is accurate, even if one aspect is mistaken, applies to the false light tort as well as the libel tort. Cases from other jurisdictions agree with Mann on this score. Moreover, here Sharos wasn’t expressly labeled a “registered sex offender,” which might make King inapplicable on these facts (though I acknowledge that there was a reference to supervision/registration details and to registration status).

3. But the important point is that these legal questions weren’t seriously debated in this case because the plaintiff got a default judgment, without ever serving the operators of SexOffenderRecord and giving them the opportunity to litigate the case. (When I got in touch with the SexOffenderRecord people a few days ago, after seeing the court judgment, they told me that they had never of the case before.)

Why a default judgment, given that the lawsuit was against the site operators, and not some anonymous commenter? Because, according to Horn’s affidavit accompanying the motion for default judgment,

2. Prior to filing the Complaint in this matter, I conducted a search to determine the address for Defendant www.sexoffenderrecord.com, also known as www.sorarchive.com. I reviewed Defendant’s website but it does not contain any address or other identifying information such as a telephone number or contact information. Additionally, the “contact” page on the website is blank, has no form or any information to send any communication to the site. Therefore, the website provides no means to contact it.

3. I also conducted multiple searches on the Internet to try and determine the owner of the website and/or its location and also looked at various secretary of state websites. Through these efforts, I was unable to identify the address of Defendant or to locate any other identifying information about the Defendant.

Yet if you go to SexOffenderRecord.com, the very top line of the site under the banner has a tag saying “Record Removal Inquiries.” That page has a form through which lawyers can submit record removal requests to the site. I used that form to reach the site, and got a response the next day. Indeed, the site forwarded me what purports to be an item about another matter submitted through that form in May 2015 by Aaron Minc. (Perhaps for whatever reason Minc and Horn thought they wouldn’t get a response through the form — but that’s not what was said in the affidavit.)

What about “searches on the Internet”? If you search Google Scholar for “sexoffenderrecord”, you will find Wilson v. Web.com Group, Inc., which also involves SexOffenderRecord.com and Web Express and mentions Charles Rodrick, who appears to be one of the operators of the site. You’ll also find Stewart v. Oesterblad, which involves the same site and mentions Charles Roderick (with a slightly different spelling than in Wilson) and Brent Oesterblad, who appears to be another of the operators. The information in the records of those cases could likely be used to track down the site operators further.

A Google search for “sexoffenderrecord” also finds a USA Today article about a 2014 verdict against the operators of SexOffenderRecord.com and SORArchives.com, mentioning Charles Rodrick. A Google News search finds the same site. And these are just free searches — Westlaw, Lexis and BloombergLaw searches will find still more.

4. So we have a potentially dicey legal theory for why the statement — labeling someone who committed a sex offense as a sex offender — is legally actionable. The theory might have prevailed in court, if there had been a serious adversarial hearing, but I suspect it wouldn’t have.

Avoiding an adversarial hearing thus likely seemed more helpful to the plaintiff’s argument. And an adversarial hearing was indeed avoided, because the plaintiff’s lawyers got a default judgment.

The justification for the default judgment was that (A) the site “does not contain” “contact information” and (B) “multiple searches on the Internet” failed to “determine the owner of the website.” But the site contains a form that I used to get a response the very next day. And Internet searches quickly find people identified in past cases as being the site’s operators (information that could likely then have been used to get further contact information). Still more evidence, in my view, of how we should be skeptical about many libel takedown lawsuits, which often do involve default judgments.

I emailed Minc and Horn about this, but they would not give me any comments on the record.