By Eric Goldman

Davis v. Google, 09 CH 15753 (Cook County Ct. complaint filed April 9, 2009)

Venkat sent a very interesting lawsuit this morning that raises some complex policy issues. The complaint alleges that Sean Healy created a blog at unknowncolumn.blogspot.com and posted defamatory content about speedskater Shani Davis’ mom, Cherie Davis. [I believe the post in question is at http://unknowncolumn.blogspot.com/2006/02/memo-to-cherie-davis.html — I’m not going to link to it, but it did show up as my first search result for “Cherie Davis”]. The complaint further alleges that Healy is now deceased, so he can no longer remove the content on Cherie’s demand, and he did not have a “probate estate” to take over his blog. As a result, Cherie feels like she has nowhere to turn to clean up the alleged defamation, so she is suing Google’s Blogspot for a takedown injunction.

On the face of it, the lawsuit is clearly preempted by 47 USC 230, and Google ought to get a quick and unambiguous win. However, there are some lurking policy issues about dealing with online content posted by now-deceased individuals:

* Presumably the content and the account passed through Healy’s estate. Even if there was no “probate estate,” whatever that means, there is still a legal protocol for succession of Healy’s assets–including the copyrights in his blog. So someone now owns Healy’s blog, and it should be possible to determine who that is.

* Even if the legal rights have been allocated, taking control over a deceased accountholder’s account is not always easy. The last time I recall this issue being discussed, it was in the context of taking control over deceased military personnel’s email accounts. Online providers have different policies about how to deal with this–and for good reason, as too loose a policy could enable account hijacking, plus there may be concerns about the deceased accountholder’s privacy. I wonder what Blogspot’s policy is. This issue won’t come up often, but it will definitely come up again.

* If Cherie can’t sue Healy’s estate, instead of suing Blogspot, I wonder if Cherie could seek a declaratory judgment that the content is defamatory. I would be shocked if Blogspot wouldn’t honor a declaratory judgment in Cherie’s favor, and it’s not exactly like Healy would contest it.

* If Blogspot won’t voluntarily remove the content, I wonder if Cherie could have more cost-effectively achieved the same net result through a reputation management service. A good reputation management service should be able to obscure several year old content that hasn’t been recently refreshed.