Whether you’re walking into a job interview, client meeting, or even first date, it’s safe to assume the person with whom you are meeting has searched your name online.  If something has been posted online that is defamatory or an invasion of your privacy, the worst thing you can do is ignore it and hope it will go away on its own. 

 We recommend all our clients set a Google Alert for their name.  Setting a Google Alert for your name will ensure that you are sent an e-mail when a new mention of your name appears online.  Doing this will enable you to monitor your online presence and reputation.  Afterall, with the statute of limitations for defamation in New York being a measly one-year, it’s important for you to know the moment someone makes a defamatory statement about you.  Similarly, we also recommend conducting Reverse Google Image searches using social media profile pictures or even facial recognition search engines like Pimeyes to track and search for unauthorized use of one’s images.   

The first step in attempting to remove negative content from the internet is to contact the person or company that posted it in the first place.  While it seems like simple advice, we have found that sometimes removing content is as simple as writing a thoughtful message to the person who posted it explaining why and how their words are hurting your life.  While this route is oftentimes a dead end, it’s a free and low-risk option that can save you the hassle and expense of retaining an attorney.

If the content has been removed from the site but the snippet and cached result is still appearing in Google’s search results, try using Google’s Remove Outdated Content Tool.   This tool flags to Google that the search result being shown no longer accurately reflects the content on the linked page. 

If you own the content that is being posted by a third party, another option for removal is by way of a DMCA Takedown Request.  A DMCA Takedown Request is a notice sent by the owner of content asking that it be removed from a website or platform.  DMCA stands for the Digital Millennium Copyright Act, which governs the production and dissemination of copyrighted works.  While DMCA protects webmasters and online service providers from being held liable for copyright infringement occurring at the hands of their users, this safe harbor is not without limitations.  Online companies that receive DMCA Takedown Notices must remove allegedly infringing content and notify the user accused of infringing the copyright in a prompt manner or risk losing the protections offered by the DMCA. 

You do not need to possess a copyright on the material that has been posted in order to file a DMCA Takedown Notice.  Content creators and owners can file notices as well as content publishers or distributors, code writers and publishers, NFT owners, social media users and participants, and, in some cases, the subject contained within the content if it is published without the subject’s permission.

While websites which accept DMCA Takedown Notices will often include a list of the information they require to process a DMCA Takedown, the list usually includes the following: 

• Your information: Your name, address, telephone number, and e-mail address. 

•  Information about the material: Identification of the protected work, a description of the protected work, information about where the protected work first legally appeared (such as a URL or book), a description of where the protected work is located. 

• Certain attestations: A statement that you have a good faith belief that the disputed use is not authorized by the content owner, their agent, or the law; a statement, made under the penalty of perjury, that the information provided by you is accurate and that you are the content owner or authorized to act on their behalf; and an electronic or physical signature of you or your representative. 

Once your DMCA notice is complete, send it to the service provider responsible for the site.  Sometimes identifying this e-mail address or address is as easy as searching a site’s privacy policy for an e-mail address for the site’s legal team.  Other times, you may have to dig a little deeper to determine who owns the domain (https://lookup.icann.org).  

Cease and desist letters can also be effective in inducing bad actors to remove defamatory or infringing content from their websites or social media accounts.  While not legally binding, a good cease and desist letter informs third parties about relevant laws, explains how they have violated those laws, and details the potential legal risks involved.  We recommend having cease and desist letters personally served upon bad actors using process servers to further underline the severity of the situation. 

From time to time, we see bad actors scanning in copies of our cease and desist letters and broadcasting them along their existing defamatory content to suggest to their readers that you are attempting to silence them.  While, short of a lawsuit, there is little that can be done to quiet the rantings of someone intent to defame you, their posting of the letter can be used in a future lawsuit to demonstrate that they knew what they wrote about you was false and continued to broadcast the false and defamatory content despite knowing of its falsity. 

Our firm regularly writes cease and desist letters for clients who wish to have websites removed without the hassle, expense, and potential publicity of filing a lawsuit.  

Sometimes filing a lawsuit is the only way to get relief.  In New York State, lawsuits are generally initiated by the filing of a Summons and Complaint and subsequent service of those papers upon the defendant.  A summons and complaint alerts a defendant that he or she is being sued and informs them what the lawsuit is concerning.  Once served, a defendant must appear and file an answer within 20 to 30 days, depending upon how he or she is served.

Filing fees alone can be costly.  The price to obtain an index number for a lawsuit in Supreme Court in New York State is $210 and a Request for Judicial Intervention (RJI) is $95.  Motions and cross motions cost $45 just to file.  None of that includes the cost of drafting the papers that go into a lawsuit. 

Another potential drawback to filing a lawsuit is known as The Streisand Effect.  The Streisand Effect is a term that is used to refer to the unintentional backfiring of defamation and other types of privacy lawsuits in that sometimes the lawsuits end up broadcasting the information a plaintiff desires to be suppressed more than the initial publication of the information.  

The term was coined when popular singer, Barbara Streisand, attempted to remove a photograph of her house from the internet where is appeared along with every other home along the California coastline.   Ms. Streisand’s lawsuit is said to have backfired because her lawsuit drew more attention to the image than it would have received had she not sued.  More specifically, prior to her filing of the lawsuit, the image of her house had only been downloaded six times (and two of those times were by Ms. Streisand’s attorneys) however in the month after Ms. Streisand filed the lawsuit, 420,000 visited the website hosting the image of her house.

Sometimes filing a lawsuit against the person who published the content is the only way to have the content removed.  But what happens if the person who published the content defaults or continues to refuse to remove the content even after a court orders them to do so?  As discussed elsewhere on our website, the Communications Decency Act protect websites from being held liable for most content posted by their users.  As a result, if you are defamed online, it is necessary for you to sue the user defaming you, not the online service provider hosting the content (like Google, Facebook, TikTok).  Most major social media companies, blog platforms, and other websites are likely to honor a U.S. court order that identifies the infringing website by URL and delineates what portions of the content is defamatory or unlawful.  It can also be helpful to include in an order whether the language is in violation of the site’s own terms and conditions or whether the site agrees to be bound by legal decisions of certain states.  It is also useful to include language stating that future postings of identical or substantially similar language should be treated the same and be removed pursuant to the earlier court order.  Including this catch all language can prove helpful down the line if you realize the defendant has posted the same or similar bad content elsewhere online. 

Even though online service providers are not legally required to remove offending content, our firm has found that most companies have no desire to continue to host content that has been deemed unlawful by U.S. courts.

Sometimes it is simply impossible to remove bad content from the internet.  This is sometimes the case when the content is true – like a report on a past arrest – or if you missed the statute of limitations to sue.  When this happens, we recommend that our clients learn about Search Engine Optimization (SEO).  Publishing good content, creating social media profiles, starting a blog, leaving comments on websites, publishing advice in expert forums, optimizing existing content, and becoming an active participant on certain websites can all have the effect of pushing a bad website to a later page of your Google results.  

While this strategy does not remove content from the internet, by burying it beneath a large number of positive or neutral results, it is likely a third party will not discover it.  This process is popularly known as Reverse SEO.  Because this process is one that you can do on your own, many people view it as a worthwhile alternative to website removal.  Beware, however, that Google’s Search Algorithm and Ranking System is constantly evolving, which means content that once appeared on page 7 of your search results may suddenly appear on page 1 or 2 through no fault of your own.  In 2020, for example, Google made 4,500 changes to its search index.  The risk in relying on reverse SEO is, of course, that one could successfully stave off discovery of the bad content for years only for an algorithm rehaul to bring it to the top of your results overnight.  When this happens, there is little that can be done, legally, as the Statute of Limitations has passed.