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Comment by JoshTriplett | Hacker News Reader

A particularly interesting buried lede in the article:

> And the possibility of such shenanigans bears on the Hassell v. Bird litigation that is now before the California Supreme Court: The issue there (see here and here) is whether takedown injunctions can actually be made legally binding on Internet platforms, rather than just being something that platforms choose whether to follow. The questionable nature of many such injunctions is reason to further insist that platforms not be legally bound by them.

That would be a major win, if successful.

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If "platforms [were not] legally bound by them" wouldn't that pose some serious difficulty for legitimate takedown injunctions?

I mean, sure it'd prevent fraudulent crap like the stuff that is going on in this article, but if someone had a real issue where they needed something taken down, it would never get taken down, right? So I think there needs to be a more involved solution than that. Otherwise we leave the door open for all sorts of nasty stuff to be posted and just left there for eternity to show up on the first page of search results.

> If "platforms [were not] legally bound by them" wouldn't that pose some serious difficulty for legitimate takedown injunctions?

The naming here is potentially misleading and contributes to the confusion. The "takedown injunctions" referred to are not orders by a court to an internet service to take down content (such injunctions can be issued in cases where the internet service is a party, and absolutely are binding.)

Instead, they are injunctions issued in cases where the creator of the content is the defendant (in theory, at least) and are directed at that creator to remove the content; they are then often used by those who initiated the lawsuit to support a request to the internet provider to take the content down.

If an internet service refuses to take down content that really violates some person's rights, a lawsuit against the internet service which generates an order directed against that service to remove the material is always an available means for a mandatory take down, that isn't in dispute.

Thanks for the clarification. This makes a lot more sense to me now. So if Internet Service X is not ordered to take something down, but told that "[poster] was ordered to take something down", they should be allowed to ignore it. Seems like it'd solve the problem to me. (Especially since it wasn't [poster] but some name-a-like who may not exist.)

They are allowed to ignore the request. They don't, because once they have what appears to be a valid court order (even though the defendant is the creator, not the platform/ISP), it makes economic sense to take the content down (vs pay lawyers).

> If an internet service refuses to take down content that really violates some person's rights, a lawsuit against the internet service which generates an order directed against that service to remove the material is always an available means for a mandatory take down, that isn't in dispute.

Exactly. I would argue that any court order that requires action by a party not named in the court case (and who thus has not had an opportunity to defend themselves in court and avail themselves of the many rights afforded to defendants) should always be non-binding and advisory, with the caveat that choosing to ignore it can and likely will be used as evidence in a lawsuit directly against that party.

Thanks to Section 230 of the CDA, it actually isn't an available means for a take down in cases where the content was posted by someone else. The reason this kind of third-party injunction is so important is because it's currently the only way to force uncooperative internet providers to take down defamatory content originally written and posted by someone else, some of which don't let the original author remove it. From what I can tell Eugene Volokh wants these websites to have their cake and eat it: he thinks they should have immunity from being sued to remove user-submitted content on the basis that they may not be treated as authors of it, and also immunity from being forced to take down the content in lawsuits against the original author because they must be treated as authors too.

> whether takedown injunctions can actually be made legally binding on Internet platforms, rather than just being something that platforms choose whether to follow

If they're not legally binding, what incentive do Internet platforms have to follow them? It seems like it adds work and overhead; so what strategic or economic or other goals would following non-legally-binding injunctions further?

> If they're not legally binding, what incentive do Internet platforms have to follow them?

Third-party injunctions of the type at issue here (third-party in that the internet platform is not a party to the case) are usually followed by platforms to remove or deindex content because the existence of the third-party injunction provides more basis than a simple request to suspect that a direct lawsuit against the search company would also result in a direct injunction (which would be obligatory, in any case.)

For Yelp, it's damaging to their core business to have false reviews, and depending on businesses alone to report false reviews is obviously insufficient.

Certainly you realize that buried lede is likely the reason the piece exists

Is the implication that this is only worth reporting about because of that case, and without the Supreme Court case this wouldn't have been reported at all? Or is it that it was only looked at in the first case because of the Supreme court case?

I don't think the former is likely, this seems like news any way I look at it. As for the latter, that's possible, but I'm not sure what makes you think it's likely. Or perhaps you're trying to state something else I'm missing?

My interpretation is that the case seeking to make these kinds of injunctions obligatory is likely what led someone to investigate what is going on with these injunctions in general, which then led to the discovery of what seemed like a strange pattern, which led to more research and hiring the PI; and therefore led to the reporting.

Yes, that corresponds to the second interpretation I outlined above, but the article specifically states "(Readers may remember this story, which we blogged about in August; that’s the incident that got us investigating this issue.)" with regard to the Mathew Chan story (link[1]). Maybe the implication is that they only looked at that because of the Supreme Court though, and then this article exists because of the Supreme Court case by way of the original article? In any case, it was ambiguous enough to me that I figured I would ask, as I would rather learn something interesting that I missed than assume I knew what everyone involved was thinking. :)

1: http://pubcit.typepad.com/clpblog/2016/08/georgia-dentist-mi...

"Is the implication that this is only worth reporting about because of that case, and without the Supreme Court case this wouldn't have been reported at all? Or is it that it was only looked at in the first case because of the Supreme court case? "

as the sibling comment says, Eugene is a law professor specializing in first amendment law. He almost certainly is reporting on it because of that case.

Would it be worth reporting otherwise, yes, but definitely, the former is accurate.

One of two things happened:

1. Either Eugene discovered it himself because he saw that case or

2. Someone notified Eugene of that case.

My guess is his earlier blog posts let folks know he was interested in these issues, and someone emailed him this case, which got him investigating.

(I'm sure if you bug him, he'll tell you, he's a nice guy)

Number 2.

https://www.washingtonpost.com/news/volokh-conspiracy/wp/201...

Yes, especially considering the by-line of the piece. Eugene Volokh isn't a WaPo reporter. He's the namesake of The Volokh Conspiracy, a blog that WaPo publishes; and also a law professor and leading expert on First Amendment law.

EDIT: Prof. Volokh just posted in his blog a bit about how the piece came to be. See https://www.washingtonpost.com/opinions/donald-trumps-vile-c...

I have to think that this is the link you meant to post: https://www.washingtonpost.com/news/volokh-conspiracy/wp/201...

Thanks - that's an embarrassing clipboard mixup.

I smell shenanigans.

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