Need advice about incorrect info on the Web

[quincy]

It is a lot of work, knowledgesearch, and it takes a lot of time, but a lot of what you have printed above will not be required of you in your case. You will not be taking any witness testimony in California, for instance. You will just be getting a subpoena for the production of documents.

There are dates, too, that must be met for the production of documents once the subpoena and notice are issued and served. The production of documents date is required to be no shorter than 30 days after issuance of the subpoena (with the "consumer" served with notice of the subpoena 15 days before Google is served with the subpoena), but once Google is served with the subpoena, the production of documents date can be 15 days after that. So, potentially (although definitely not probably), the documents requested of Google could be mailed to the Colorado court 30 days after the notice to the consumer is served (15 days after Google is served).

When more than one state is involved, it does get more complicated and more costly. Defamation actions routinely take years, and not months, to work their way through the court system, and the average cost (from start to finish and with an attorney) is around $175,000. Of course, some are a lot less (and some are a lot more) but they are definitely not something someone should consider pursuing unless they have suffered reputational injury sufficient enough to support the time, effort and expense involved (and they are fairly confident they have a winning case ).

You are definitely in a difficult position, knowledgesearch. You have no option other than to subpoena Google if you want to know the identity of your defamer, and to subpoena Google, you must have the subpoena issued from the California court. And for this you will need an attorney.

Have you contacted any attorneys in Colorado yet, or visited their websites to see if they have offices in California? That is, to my way of thinking, the best way to limit your expense, as both a Colorado attorney and a California attorney from the same firm can represent you.

You also may want to investigate whether your court and the court in California allow for electronic communications. This may be an avenue to explore, as courts realize the burden that is placed on plaintiffs when handling suits that involve more than one state.

An attorney handling your defamation action for you may be the wisest course of action. If you have a good solid case, and you believe your defamer can meet the costs of any damages awarded you should you win, it may be worthwhile for you to hire one. Pro se plaintiffs often discover an attorney's worth after trying to manage a case on their own.

 

[knowledgesearch]

Quincy,

New idea. Not only do I want to find out who wrote libel posts #1 and #2 (which were removed by the posters after Google sent them my subpoena) but there is also the matter of libel post #3 that remains. I assume that since this is an organized libel campaign this poster #3 either knows poster #1and poster #2 or is the same person, and I further assume that libel post #3 has not been removed because the poster lost his password to that account. Which means that the libel will remain on Google Review forever.

Thus, I must compel Google to remove it, and the only way I can do that is by naming Google as a defendant and seeking a court order compeling Google to remove it.

Thus, if I add Google as a defendant to my CO John Doe lawsuit, won't I be in a new position, i.e. able to subpoena them to produce records here in this state? On the other hand, perhaps Google will object on jurisdictional grounds. Even though they do business in this state and in every other state (by selling advertising) the law in this area regarding getting personal jurisdiction over internet entities outside their home state is unsettled and I can hardly afford to make new case law fighting Google.

 

[quincy]

A battle over jurisdiction would be only one problem you would face if you try to include Google as a defendant in your lawsuit. I think you would win the right to hear your action in Colorado, but I am pretty sure Google would contest that right. In addition, Google has no liability under the CDA for the defamatory material written by others. Unless they helped compose the defamatory review, you have no legitimate case against them. And, by including them in your lawsuit, you could take the average cost of a defamation action that I gave you above and multiply it by, oh, maybe 10.

In other words, having an attorney get a subpoena issued through a California court will not be nearly as costly or time consuming as attempting to sue Google.

But it was a good thought.

I don't see that Google has a registered agent in Colorado, so you are probably out of luck there - although you can contact the Colorado Secretary of State to verify this. Then check out the possibility of electronic communications between the courts (although I really don't think a subpoena can be issued this way. . . by it is worth a try). Then check Colorado firms for those with offices in California.

Good luck.

 

[knowledgesearch]

Quincy,

Maybe my last post wasn't clear. By naming Google as a defendant it would not be to claim against them but to get jurisdiction over them so that if a judge ordered the removal of the defamatory posting I could actually accomplish that which was ordered by the court. I don't think a court can order a non-party to do something.

Are you saying that the CDA means that any anonomous poster can post libel in what is essentially a public square and the object of the libel has no right to have it removed?

I sure hope that is not your position (and the current state of the law). Because if you are right, we are heading down the wrong road. This means that someone who doesn't like the owner of "ABC Child Care" could post falsely that ABC Child Care only hires convicted child molestors and there is nothing that ABC can do to get this removed.

 

[quincy]

A person who is libeled has the right to have defamatory material removed from a website and to be compensated for any reputational injury suffered as a result of the libelous publication.

The way to have this material removed, and to be compensated for the reputational injury suffered as a result of the publication (if you cannot convince the creator of the content to voluntarily withdraw the material and, perhaps, write you out a hefty check for injury suffered) is to initiate a defamation lawsuit.

A lawsuit is how you get defamatory material removed and injury to your reputation compensated through damages awarded. This is what ABC Child Care would do if defamatory material was published about them.

The CDA does not protect a creator of libelous material. If Google wrote the defamatory review, you would be right to sue Google. But Google has immunity from prosecution, under the CDA, for material that is created and published by others. You cannot sue someone for defamation (successfully, at least) if they did not defame you, and Google did not defame you.

In the early days of the internet, a person could contact a website and request that material be removed, and the website would remove it (to avoid the possibility of a lawsuit). This worked well when the material removed violated a law (infringed on copyright or trademark rights, invaded privacy, defamed a person or entity, was pornographic or obscene). Unfortunately, much of what was being removed by the websites was legally protected content, and free speech was being stifled. Removal of content was becoming a way to silence critics and prevent divergent and diverse voices from being heard.

Now it is almost always necessary to show that content violates a law, by presenting evidence in court to that effect, before a website will remove it (through a court order). This prevents legal content from being removed and protects free speech rights, which our country values, but it does make the removal of illegal content more difficult.

Electronic communications (legal for tax filing, creating binding contracts, etc) will, I imagine, cover state-to-state legal actions in the future. Some courts already allow for the e-filing of court documents, although, as I said earlier, I am not sure if any court can cover your subpoena needs electronically (especially a state-to-state subpoena). I tend to doubt that they do.