You have sighted content posted on a website you don’t wish to appear on the internet and seek to have it removed.
Your options are to seek legal advice to ascertain whether you have any legal basis for the removal of the content from the website. Alternatively you may wish to write a letter yourself to the webmaster of the website requesting removal of the undesirable content, explaining and supporting your request for removal with clearly articulated legal reasons. If you are successful in having content removed from a particular website, your battle isn’t over, depending on the extent to which that information remains visible on the internet.
Removing Content From Google, may not necessarily mean incurring legal expenses or bring legal proceedings. You may consider consulting Google’s Policy on Removing Content From Google to evaluate whether you are likely to be able to enlist Google to disable the relevant content from appearing on the world wide web.
Google have established a policy which refers users to a tool for reporting content they wish to have removed from Google. If you wish to take this route you need to submit the form to Google providing information requested by them.
The first thing you will notice is that Google hosted content can refer to either content which a Google web property Google owns such as Google +, Google Blogger or YouTube or content displayed in Google’s search engine results.
Remember that the approach and outcome of any requests for removal of different types of content will vary under Google’s terms of service set out in their policies and will depend on the type of content you are trying to have removed. Content may be removed for a whole variety of reasons not confined to intellectual violations of copyright, trademark law, defamation or privacy. Google may also remove content based on violations of other terms of service.
A copyright owner, seeking to have copyright removed would submit a copyright infringement notice to notify Google of an infraction under the U.S. Digital Millennium Copyright Act in respect of material they believe infringes copyright in a work in which they have rights which have been breached.
The DMCA refers to US copyright law which implements two 1996 treaties of the World Intellectual Property Organisation (WIPO), effectively criminalising production and dissemination of technology, devices, or services which circumvent what are known as ‘digital rights management‘ (DRM), which is code precluding users gaining technological access to copyrighted works.
Circumventing a technological protection measure or access control is a criminal act in and of itself, irrespective of whether it is accompanied by actual copyright infringement. The Copyright Act 1968 (Cth) implementing similar world copyright treaty obligations in Australia, can result in criminal offences for copyright infringement related infringements occurring over the internet.
The US DMCA does limit the liability of providers of online services, otherwise referred to as online intermediaries such as ISPs, content hosts and search engines (on-line location reference tools) in respect of acts of copyright committed by their users.
This limitation is known as safe harbour protection, and will only apply where an online service provider complies with certain conditions such as having a notification system to respond to infringements. Online intermediaries must also act promptly to block or remove access to allegedly infringing material from their system upon receipt of notifications claiming infringement by or on behalf of a copyright owner or their appointed agent.
The safe harbour provisions can confer legal immunity upon online intermediaries such as Google from liability for contributory infringement, provided they adhere to the safe harbour guidelines and act promptly to disable such content.
Online intermediaries are also shielded from liability where they receive notifications from users, through counternotification procedures, providing evidence that the material the subject of a notification is in fact not infringing. These counternotification forms provided for under the DMCA are available on Google’s website so that users can seek to have a page removed put back up.
In Viacom Inc & Ors v Google for instance a Court ruled that Google owned YouTube removed illegal video promptly as required by law attracting safe harbour immunity as it removed the material expeditiously when requested. The Court held that it was up to copyright owners to monitor infringements of their material, not Google, even though their business model profits from infringing material being placed on YouTube. YouTube also claimed Viacom intentionally uploaded the allegedly infringing content they complained about, making it appear the content was stolen.
Remember if you are seeking to have Google remove content from YouTube, you will need to use a separate form to submit your request through Google irrespective of the legal issue.
When submitting URLs of defamatory content, laws differ from one jurisdiction to another and although the laws of defamation can be complex, the tort of defamation generally occurs where the material is viewed by the user, not on the server it resides on.
Even if Google refuse to consider your request for defamation, you should still consider writing to the webmaster of the site particularly where the relevant act of defamation is committed in a Commonwealth country, as there is legal authority (Godfrey v Demon) to which says that once a website owner is on notice of such defamatory content, a site owner may come under an obligation to take action. The UK defence of innocent dissemination which may arise under certain circumstances, may not protect a website owner once they are made aware of the defamatory material.
This position, which also probably applies in other Commonwealth countries, is in contrast to US law, specifically s230 Communications Decency Act, which confers immunity upon both ISPs and internet users from liability for torts committed through websites and online, even if the provider fails to take action after receiving actual notice of the harmful or infringing content.
With respect to anonymous online commentary and defamation the section has been used by Courts to interpret the extent to which interactive service providers are responsible for policing their networks, for the purpose of identifying at what point they may qualify for immunity from defamation and negligence claims for harm which flows from such content. Website operators can’t hide behind s230 protection where they themselves create the offending content.
You should also bear in mind that there has been an increasing trend of subpoeaning Google, YouTube, social media sites and other online intermediaries to disclose information revealing the identities of persons alleged to have posted defamatory information or engaged in cyberbullying. One of the high profile cases where information was successfully subpoeaned occurred in the highly publicised case of former Vogue model Liskula Cohen. Google was ordered by a Court to divulge the identity of an anonymous blogger she claimed had made defamatory remarks about her.
Therefore when considering defamation, you should also consider the potential application of internet privacy violations, cyberbullying, and other forms of proscribed online speech in addition to the jurisdiction in which the speech appears and any exceptions to the scope of immunities afforded by such laws when articulating your complaint through Google.
For instance content within a YouTube Video which doesn’t violate any of YouTube’s Privacy Guidelines, may still violate the privacy laws of the country you claim protects your privacy rights. Therefore it is important to specify the law in question when submitting your request for consideration to achieve the greatest likelihood of success.
However, be prepared for the possibility that when it comes to seeking removal of content from Google’s search results, Google may take the position that it doesn’t own the web and is therefore not in a position to remove content from it. Google state that any material indexed in Google’s search results are controlled by the website owners hosting the material and you can expect Google’s response to be that it cannot remove content from these websites.
You can once again contact your a qualified Legal Practitioner for advice regarding any violation of law which the content may involve if the site owner or administrative contact will not respond to a politely worded request to have the content removed. If there is no contact information listed on the site you may have to approach the host of the website through whois information to report any policy violations of their terms and conditions obliging them to remove certain information expeditiously.
Where a webmaster or content owner co-operates with your request don’t forget to submit a webpage removal request through Google to eliminate outdated information which may continue to show up in Google.
Removing content from your own website, including pages, cached versions or images through Google involves a separate approach.
If you are unable to have content removed through Google or where legal costs are prohibitive, you may consider using a combination of search engine optimization and an online reputation management consultant as a technique to relegate negative content in the search engine results pages.
Remember that removing content from Google won’t always result in it being removed from all other search engines. When you remove a page from your website, also check to ensure it returns a 404 (Page Not Found) Code or error and use Google’s URL Removal Tool to request removal from Google’s search results.
The best way to keep or minimise personal information being disseminated on the internet is to think twice before publishing compromising information online to avoid unforeseen consequences.