What if the first Google hit for your last name called you a prostitute, an incestuous creep, a danger to children, or a diseased lesbian? And what if, despite a federal court injunction, you couldn't get the postings removed?

Welcome to one Chicago family's Internet nightmare. Is it "safe harbor" run amok, or just an unfortunate and rare side effect of an otherwise well-crafted statute?

A family matter



David and Mary Blockowicz have been married for 42 years, own a local accounting business, and have raised four adopted kids. One of those children, Megan, married a man named Joseph Williams back in 1992, then divorced him in 2000 after he was "physically and emotional [sic] abusive" to his wife. Williams' wrath then allegedly turned on the family, thanks to the magic of the Internet.

According to a federal complaint filed by the Blockowicz family back in June, Williams moved to Oregon after the divorce and began harassing the family from afar. He posted statements to various websites like Facebook, MySpace, and Ripoffreport.com, an online complaint site.

The statements, detailed in the court documents, are extreme.

Defendants refer to David, Mary and [older sister] Lisa Blockowicz as Megan’s “scumbag family"

Defendants falsely state that “Megan's father was an incestuous creep who forced all of his children to satisfy him sexually”

Defendants spin a false tale about Mary and Lisa Blockowicz interacting with Nevada Child Protection Services

Defendants falsely state that the Blockowicz family is a danger to Megan’s children

Defendants falsely suggest that Lisa Blockowicz uses a number of aliases

Defendants call Lisa Blockowicz a “Scumbag Con-Artist, Diseased Alcoholic,

Compulsive Liar, Thief”

Compulsive Liar, Thief” Defendants state that Lisa Blockowicz is a lesbian, and is “diseased”

Hardly the behavior of a scholar and a gentleman, but was it defamatory? On October 6, after Williams failed to show up in court, federal judge James Holderman issued a default judgment against him, along with an injunction ordering him to take down the posts in question.

He did not.

Third party liability



A piece of one Ripoff Report post

So the Blockowicz family went to the various websites, injunction in hand, and asked them to remove the posts. (Note that the websites could not be sued directly, as they have "safe harbor" immunity under the Communications Decency Act for most material posted by users; the Blockowicz family did the right thing here and sued the speaker instead.) All the sites complied—except for Ripoffreport, which prides itself on never removing content.

So what to do? The postings are still up and, even with a federal court order in hand, the family could not get them taken down. The next step was to ask the judge to enforce the injunction, not against Williams but against Ripoff Report.

On Monday, the judge refused to do so. It's a basic premise of the law that judges cannot enforce orders and injunctions against parties which have not been "adjudged according to law," as the opinion puts it, and Ripoffreport was not a "party" to Williams' action. In fact, the Ripofferport terms of service disallow defamatory posts and the judge saw no evidence of the site "working in concert" with Williams to post the material. That meant he could not in good conscience enforce the injunction against the site.

It's a perverse conclusion to the case, even though all the decisions appear to follow the law. Even the judge was bothered by his ruling. "The court is sympathetic to the Blockowicz's plight," he wrote. "They find themselves the subject of defamatory attacks on the Internet yet seemingly have no recourse to have those statements enjoined from public view."

Reaction

To Ben Sheffner, a copyright attorney who covered the Joel Tenenbaum P2P case for us, this just highlights the fact that Communications Decency Act immunity is written too broadly.

"So the bottom line is that the court was utterly powerless to grant the plaintiffs an effective remedy against harmful speech that has no First Amendment value," he writes on his blog. "That's probably the correct result under the statute and the case law explicating it. But I can't imagine Congress would have enacted Section 230 back in 1996 if it knew this would be the result. Or did they disagree with Chief Justice Marshall when he wrote, 'The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right'?"

Law professor Eric Goldman, last seen in these pages predicting the gradual death of Wikipedia, also finds himself troubled. Normally, there's no problem here, since most websites will remove content with a court injunction like the one the Blockowicz's obtained. But Ripoff Report won't.

"Although this is the right doctrinal result," he says, "the normative issues are still gnawing at me. I'm troubled that online content could be categorically off-limits from compelled takedown based on a service provider's choices. In some circumstances, continued publication may not be the right result."

To all those ready to scream about the "Streisand effect" (publicizing the very thing you want hidden by filing a lawsuit against it), it's worth putting yourself in the Blockowicz family shoes for a moment; a Google search on the family's last name turns up as its very first link one of the Ripoff Report posts claiming that daughter Megan is a prostitute and that her father is an "incestuous creep."

And that's before the news coverage of this ruling has even had a chance to get going; a Google News search on the family's last name turns up no hits at all at the moment.