Several attorneys who specialize in Internet defamation law say that search engine Bing has recently changed its policy and is no longer complying with court ordered removals of defamatory content.
Such court-ordered removals are often requested as part of defamation lawsuits by reputation management attorneys, and obtained on behalf of a person or business.
Removal orders are a useful tool to combat against sites such as Ripoff Report and other complaint sites based offshore, which usually refuse to remove defamatory content from their websites under any circumstances.
Although the content may remain on the website, if a person or business is able to obtain a valid court order against the author of the post, search engines like Google, Bing, and Yahoo will usually agree to permanently remove the page from its search indices.
Reputation attorneys have had great success using this method in the past. After all, it is more important for negative results to be removed from search engines than from a site very few people would search on. If the negative content can't be found, there is not much to worry about.
However, lately it seems that Bing, which also powers Yahoo's search results, is no longer complying with defamatory content removal requests.
Bing's Official Policy on Defamatory Removals
Several prominent Internet reputation attorneys I've spoken with said that Bing previously accepted removal orders, and allege that Bing has recently unofficially changed its policy quietly and no longer does.
Nothing has officially changed, anyway. According to this Bing help page, Bing's policy on defamatory content removals is:
"We may remove displayed search results containing allegedly defamatory content. For example, we might remove a displayed search result if we receive a valid and narrow court order indicating that a particular link has been found to be defamatory."
Evidence to the Contrary
Internet defamation attorney Aaron Minc, recently received a denial letter from Bing on his request to remove defamatory URLs based on a court order. The full copy of the letter has been posted on Minc's Blog.
After speaking with Minc further, he explained why he was surprised by Bing's apparent change in policy regarding court order removals.
"In the past, I have submitted court orders to Bing on multiple occasions to request removal of URLs from its search index that contain defamation," Minc said. "The court orders are narrowly defined, they specify the exact URLs that we want removed, and they include what specific language in the URLs we want removed is defamatory.
"I have never previously had a court order rejected by Bing. I found it particularly surprising that the Bing chose to reject the court order that I submitted given the circumstances underlying the case."
The order stemmed from a case involving two ex-employees of a company, who demanded that their ex-employer pay them $150,000 or that they were going to absolutely ruin their business to the point that they would have to change their name and industry. Their plan almost worked.
When the company refused to pay, the employees took to posting dozens of slanderous and horribly detrimental lies about the company and its owners on websites like Ripoff Report and Pissed Consumer, labeling the company as a scam and falsely accusing the business of committing several state and federal laws, and stealing from its employees. The business quickly began to lose profits and customers.
After over a year of extremely contentious and hard fought litigation, the ex-employees and company finally agreed to settle the matter. In the court-ordered settlement signed by both parties, the two ex-employees admitted that the content they posted was false and agreed to have the content removed from web pages and search indices, along with posting redactions to their statements.
"Bing's response was extremely disappointing," Minc said. "I just don't understand why Bing decided to suddenly change its policy, when it seemed to have no problem assisting victims of defamation in the past who obtained valid court orders.
"A lot of businesses and individuals really relied on Bing's prior actions and policy, and are going to suffer significant harm from its change in policy. Google had no problem removing every URL we requested to be taken down."
Minc recently published a follow up post stating that he has received calls from several other attorneys and individuals who are upset about new policy change.
More Removal Requests Rejected by Bing
Internet lawyer Aaron Kelly has had a similar experience. Mr. Kelly has submitted dozens of court orders to Bing in the past to remove defamatory URLs from its search index without issue. Now, Bing has rejected every single court order that he has recently submitted.
"What's most surprising about Bing's apparent change in policy is that the company is rejecting court orders that it previously has accepted in the past," Kelly said.
Earlier this year, the website Ripoff Report re-indexed all of the content on its website, which slightly changed the URLs of all of the content posted on the site. Because of the re-index, content on Ripoff Report URLs that Bing had previously agreed to remove from its search index after being provided a valid court order, are now re-appearing in its search engine results. According to Kelly, Bing is refusing to continue to remove the exact same content on the new URLs.
Kelly is equally surprised and disappointed by Bing's policy developments as Minc.
"I just don't get it." Kelly said. "This is causing significant harm to my clients."
Search Engine Watch contacted Bing for comments regarding these recent developments. Bing denied that it has changed its policy on permanently removing URLs from its search index after being presented a valid court declaring content on websites to be defamatory.
"Although the language in our published Help topic is refined from time to time, Bing has not changed its practice of blocking URLs from display when legally required," a Bing spokesperson told Search Engine Watch.
Bing maintained that it complies with its legal obligations.
"When we receive a court order we review it carefully to determine its validity, scope, and Bing's obligation to block," said the Bing spokesperson. "Where we are not legally required to block, we evaluate whether voluntary blocking by Bing versus content removal by the third-party content host would best improve the quality of our search results."
Asked specifically about Bing's inaction on Aaron Minc's court order, Bing had this to say.
"For a variety of reasons, including respect for individuals' privacy, we don't comment on any specific instance, or set of circumstances, except to say that we apply the same level of diligence and review to each case."
Though Bing has denied a change in policy, Minc said it's obvious to anyone who has experience submitting court orders to Bing in the past that its policy has clearly changed.
"The company no longer appears to be removing URLs that contain defamatory statements from their search index voluntarily when presented a valid court order," he said. "They used to and now they don't. I Interpret their statements and responses to mean that they will now only act if they have a legal obligation to do so, which when it comes to defamation, is typically never."
Minc added that he believes that Bing's new policy makes its search results less reliable and that it undermines the integrity of its service since it provides information to the public which it knows has been determined false.
Ripoff Report's Similar Stance
In one legal case, Blockowicz v. Williams in 2010, the court ordered Ripoff Report to remove defamatory content. However, Ripoff Report fought back and claimed because they were not a party to the claim and had not had their day in court to fight this removal, they should not be required to comply. The judge agreed and reversed the order.
Besides, Ripoff Report claimed that by law it is not liable for third party content posted on its site per the Communication Decency Act, Section 230. Ever since this case, Ripoff Report has refused to honor any court ordered removals if they haven't been a party to the case.
More details of the Ripoff Report case can be found on Eric Goldman's Blog. Goldman is a professor of law at Santa Clara University School of Law.
Ripoff Report has posted an interesting response. Ripoff Report refused to remove the defamatory content in question, but revised the actual posting to add their own comments on the case. It makes an interesting read.
I spoke to Goldman about Bing's recent changes. He said that "not all court orders are equally credible" and gave two reasons why a court order might not be credible:
- The order was made after an "ex parte" proceeding where the defendant didn't show up. In those cases, the judge didn't hear both sides of the story, and often the judge simply accepts the plaintiff's assertions without careful scrutiny.
- A stipulated judgment where the plaintiff and defendant settle. In some cases, the defendant settles simply to end the legal proceeding, not because it disavows the truth of its content.
"I have long argued that search engines should make more nuanced judgments about court orders involving defamation," Goldman said. He suggested people read this article for more details. "I'm glad to see Bing has recognized the potential problems with court orders."
My guess is that Bing is taking a similar position to "Blockowicz v. Williams" case in that they shouldn't be required to comply with court ordered removals if they have not specifically been named in a lawsuit. Another problem is that plaintiffs cannot successfully sue Bing, even as a relief defendant, because of CDA Section 230 law.
"If Bing isn't a defendant, then it's not bound by any court orders per FRCP 65," Goldman said. "That's why the Blockowicz case was such a revelation: it really does mean that plaintiffs can get stuck."
My personal opinion is that it is just wrong not to at least consider the details of each case. In many cases, people and businesses spending thousands of dollars filing defamation lawsuits have had their reputations falsely ruined. If the court decides that their case should prevail, Bing should do the right thing and at least review the court orders on a case-by-case basis and not further damage innocent people's reputations. Let's hope Google won't be next to change its stance.
Disclaimer: My company offers reputation management services, but I am not an attorney and none what I say is meant to be legal advice. I am just providing my observations. My company has no business relationships with any of the attorney's mentioned in this article as of the writing of this article.
At SES London (9-11 Feb) you'll get an overview of the latest tools, tips, and tactics in Paid, Owned, Earned, Integrated Media and Business Intelligence to streamline your marketing campaigns in 2015. Register by 31 October to take advantage of Early Bird Rates.