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Friday, December 20, 2013

Mitigating Damage to Digital Reputations

The BBC reports that Steps singer, Ian "H" Watkins is "furious" after Google's links to news stories apparently placed his photograph next to stories about a different Ian Watkins -- who is a convicted pedophile:
Google's algorithm appeared to be unable to differentiate between the two cases, taking a picture - from a BBC News article about the E! apology - and pairing it with a separate article by CBS News about the abuse. 
A Google spokesman added: "For some specific searches Ian H Watkins' picture is appearing in our results because he is relevant to the story, having received a court apology.
Watkins (I use this name to refer to Ian "H" Watkins unless I specify otherwise) reacted angrily to the news, posting this image of the offending search results on Twitter, and telling CBS News to "SORT THIS OUT":

Watkins received a court apology from E! Entertainment Television, who apparently ran his image with the story about the convicted pedophile, but it sounds like Watkins is still seeking some sort of remedy from Google.

In the United States, this type of claim against Google would probably be barred by section 230 of the Communications Decency Act.  If Watkins's photo appeared on a Google search result because the result linked to a news story that ran his photo with the story of the convicted pedophile, Google would not be treated as having published that photo because it was a third party who shared that photo online.  Under section 230, websites are typically immune from lawsuits arising from content that is posted on websites by third parties.  Google could argue that it is simply linking to a third-party's content, and the image posted by the author of that content.  Watkins may well have a successful claim against the news agency, though, and it sounds like he has already succeeded on some level with E!  But Watkins would probably not succeed against Google.

But even if Watkins were doomed to fail, he would do well to file the lawsuit anyway.  Today, in the aftermath of Watkins's lawyers approaching Google, a Google search of "Ian H Watkins" reveals these results:

Pretty much every result has to do with Watkins's complaint against Google (with the exception of the bearded man on the right -- who is the similarly-named convicted pedophile).  The overwhelming impression one gets from these results is that Google messed up and Watkins is calling them out.  Quite the opposite of an impression of Watkins being convicted of anything.

Even if Watkins takes no official legal action against Google, simply having his lawyers approach Google and claim damage is enough to focus the news on Google's mistake, rather than on news stories' mistaken identifications.

But those who are worried about internet defamation -- especially misleading results in search engine results or autocomplete suggestions -- should avoid filing too many lawsuits if they want to succeed in court.  In Stayart v. Google, 710 F.3d 719 (7th Cir. 2013), the plaintiff sued Google for invasion of privacy.  Google had an autocomplete function that would automatically suggest search queries when users would enter text into Google's search engine.  The plaintiff argued that her name was appearing in these suggestions alongside the names of several erectile disfunction drugs, and that this was an invasion of her privacy and a misappropriation of her identity.

The court ruled that the plaintiff could not succeed in her invasion of privacy suit because her name's association with the drug was a matter of public concern.  This is because the plaintiff had already filed another lawsuit against Yahoo! for carrying out similar practices.  Because court documents and stories relating to the other lawsuit would lead to search results combining the plaintiff's name with the drug's name, Google's search suggestions were the result of this matter of public concern -- and not an invasion of privacy.

The court's logic would probably apply with similar force to defamation lawsuits.  If a plaintiff were to sue a search engine for defamation arising from that plaintiff's name being associated with undesirable labels like "convicted," "felon," or "sex offender," the plaintiff might have some chance of success with the first lawsuit, but would probably not succeed with a second lawsuit, since the first lawsuit would make those search results and suggestions a matter of public concern.

In light of this, search engines may want to seek declaratory judgments (a ruling by a court on a question of law in the absence of a fully-filed lawsuit) that their results or autocomplete suggestions are immunized by section 230 or protected by the First Amendment or some other law if they are ever threatened with litigation.  For example, a search engine threatened with a defamation action could file for a declaratory judgment that their conduct is lawful, and thereby foreclose further claims that the party may bring against it for related lawsuits like invasion of privacy.  By making the facts of the lawsuit public, this may foreclose additional suits based on these facts.

The dynamic nature of content posted and displayed on the Internet and in search engine results gives private parties significant powers to shape and defend their digital reputations.  Watkins' approach so far is an example of successful reputation management -- but parties should take care that they not go too far in pursuing legal action, as official filings may foreclose further lawsuits.

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