by Paul Alan Levy
This blog has carried a number of articles recently about the bizarre story of “Patel v. Chan” a case in which a pro se lawsuit, seeking relief for defamation based on comments posted on several interactive consumer review sites, was filed in Baltimore without the signatures of any real people. The idea was to obtain the real signature of a real judge on a “consent order” which could then be presented to neutral sites to persuade them to exercise their discretion to disable access to the reviews. Patel hired a lawyer who proclaimed that his client never authorized the filing of the lawsuit in his name, but admitted that his client had retained a reputation management company with tied to Maryland, and said that he was investigating whether that company had filed the case. Today, this story takes a turn that is even more bizarre.
A Consent Order Obtained in Federal Court in Rhode Island
After I wrote about the Patel case, I heard privately from Adam Steinbaugh, who sent me copies of some papers he had located on the ECF site of the US District Court for the District of Rhode Island – a complaint along with a “consent motion” and a proposed “consent order,” also signed by a pro se plaintiff and defendant, that contained some awkward phrasings that are suspiciously similar to the language in the Patel v. Chan papers. This time, though, instead of directing that the order be sent to the site hosting the comments – this time, the "Get Out of Debt Guy" web site, a blog about the debt relief industry which has a policy of not removing comments, preferring that the poster make a public retraction — the “consent order” provided that it was to be provided to Google and other search engines so that the entire article (which was not alleged to have anything tortious) could be removed from search engine data bases. The pages to be removed (here and here) were two articles criticizing a number of specific debt relief companies – an industry that to my mind has a goodly number of sleazy outfits that take advantage of people in desperate circumstances, although I have no personal opinions about the specific companies discussed in those articles.
As it happens, I knew Steve Rhode, the operator of this web site – we have discussed some of the lawsuits he has faced over the years from unhappy companies that he has criticized, although none were cases that made sense for us to handle ourselves. But I took the occasion to ask him if he knew anything about the consent order, and he had not! Indeed, when he reached out to Bradley Smith, the company executive who was identified as the pro se plaintiff in the case, Smith said that the signature on the pro se papers was not his own.
Indeed, the complaint and supposed settlement documents, signed by “Bradley Smith” as pro se plaintiff and “Deborah Garcia” as pro se defendant, reeked of suspicious content. Among other things, anonymous comments said nothing about Bradley Smith, although the blog article to which they were posted criticized Smith's company. Another oddity – neither of the URL’s that the “consent order” called on Google to delist was the article to which the comments were posted, although one of them featured comments supposedly received from “Bradley Smith” (whose authenticity Rhode had contested in these comments) And then there was the name of the defendant – the articles were posted using generic pseudonyms, yet plaintiff had apparently managed to identify the commenter by some mysterious means, and by some coincidence both comments had the same author, and she happened to be located in Rhode Island, where the statute of limitations for defamation is three years! Garcia’s supposed residence also justified claiming diversity jurisdiction, yet the blog host could tell that the IP addresses for both comments were in California; and the address listed on the documents for Garcia does not exist.
The Blogger’s Motion for Relief from Judgment – and More
As it turns out, assuming that the choice of Rhode Island as the venue may well have motivated by its unusually long limitations period for defamation claims, choosing to sue there was a colossal blunder in a different respect: like California, where Bradley Smith lives and whose anti-SLAPP statute is well-known, Rhode Island has a tough anti-SLAPP statute. Today we have entered the Rhode Island case to help the Get Out of Debt Guy retain its access to search engine listings as a way of telling consumers about useful information on its web site. Thus, in addition to moving for leave to intervene and to vacate the judgment, we have moved to dismiss the complaint citing the anti-SLAPP provisions, which include an award of attorney fees. It seems to me that the facts here are sufficiently egregious that sanctions may be warranted on an inherent power or bad faith litigation theory.
To be sure, if Bradley Smith can show evidence that he had no involvement in the filing of the case (when I asked Smith for an affidavit confirming what he had told the blogger, he said that he had a lawyer so I could not talk to him, but he refused to identify his lawyer), it may require discovery to identify the malefactors who filed the case and perpetrated what certainly looks at this point to have been a fraud on the court. At this point I am agnostic about whether Smith filed it or, if not, to what extent he was responsible for the filing. Even without discovery, we have found some indications connecting Smith's suppression campaign to Baltimore, where Patel v. Chan was filed.
How Search Engines Should Treat Such Cases
It was from a blog post five years ago by Kenton Hutcherson that I first learned that when a plaintiff brings a successful defamation lawsuit against an online detractor who has posted false statements that are hurting the plaintiff’s reputation, but the posting was on a site that has a “never-take-it down” policy, Google (and presumably other search engines) is willing to remove that page from its search database. Many of my colleagues in the free speech space were upset about Google's doing this, but my reaction was more friendly. When posts are truly false and defamatory, when they really cause harm, plaintiffs might well need a remedy, and that remedy should be effective (assuming of course that injunctive relief against repeated an adjudicated defamation is not an impermissible prior restraint). Yes, section 230 gives discretion to online hosts about what material to keep and what to remove, but by the same token a search engine provider might decide to give respect to the considered decision about defamation by a judge who has heard evidence and argument from both sides. The whole purpose of section 230, after all, was to encourage responsible publishing decisions by ISP's. When businesses and others contact me at Public Citizen asking for advice about how to deal with false and hurtful online content, when I give my course on the practical aspects of litigating online free speech cases, I try to give fair advice: I say that defamation cases are hard to win, I remind them that if removal of the criticism is really what they want they have to take section 230 into account, but I also point to the delisting option if they are really harmed and decide it is worth paying to litigate the case. Moreover, the delisting policy takes some pressure off section 230 in that, even the law extends its protection even to companies that use a policy of leaving criticisms online for the alleged purpose of shaking down companies to pay for removal, the plaintiffs in such cases have a reasonable way to protect their interests.
Over the years, though, we have seen some serious abuse of this process, highlighted by a series of bogus cases created by some California lawyers to get some articles removed from Pissed Consumer. It is my sense that, chastened by having been played by these California lawyers, Google has been more cautious about responding to court orders.
It appears, though, that in at least some cases Google has responded to some orders directed at comments posted to a given article by taking the entire article out of its database, even though the article is not defamatory. To be sure, Google can’t include only part of a page in its search database, so its delisting power does not give it the fine-grained ability to delist only the comment and not the whole page. Yet assuming that it is ready to delist when even a small part of a page is what the court order condemns, it would be better for the a search engine to make sure that the site owner has had notice of court order so that it can decide whether removal of the comment (or editing the page) is preferable to having the whole page taken out of its listing. The Get Out of Debt Guy web site has had pages delisted without ever knowing about the court order on which the delisting was based. Considering that Google itself exercises considerable discretion about the management of its search database and search algorithms, and that it invokes section 230 to defend those choices, it strikes me as a bit hypocritical for Google to remove articles from its database just because the host of a blog takes the position as a general policy matter, as Steve Rhode does, that it is generally better for the public record if defaming commenters post retractions so that the public can understand the entire back-and-forth. Rhode might well prefer to depart from that policy in a single instance, even if he is suspicious about the process by which the order was obtained, to preserve his access to the search-engine-using public.
And certainly it would behoove search engines like Google not to take down entire articles where the only basis for the order is a consent order without damages. Such a settlement really amounts to two private parties agreeing what the remedy for alleged defamation is and choosing a remedy that hurts the interest of a third party and hurts the alleged defamer not at all. Google's result to a blunter instrument encourages the sort of fraudulent practice that was applied to the Get Out of Debt Guy blog here and, I have reason to believe, in a number of other instances.
This story may take further bizarre turns before it ends.