“Scrubbers:” A New Hope for Defamation Plaintiffs?

Photo by Glenn Carstens-Peters on Unsplash

Matthew Marino, Associate Member, University of Cincinnati Law Review

I. Introduction

Today, Internet users can quickly obtain massive amounts of information online, influencing and informing their views on individuals, politicians, and other organizations. Because of wide public access to the Internet, people who publish damaging content on the internet can cause others serious reputation damage. Internet platforms like Google and Facebook must collaborate with “scrubbers” to self-regulate their users, removing false, dated, or defamatory information for users with genuine complaints that their reputation was damaged. This article defines “scrubbers” as private entities hired to legally petition Internet platforms for the removal of false reputation-damaging content about their clients from the internet. This article argues that scrubbers should be employed to address the many elaborate concerns of defamation plaintiffs.     

II. Background

A. Scrubbers in Current Form

Some lawyers have recently entered the business of scrubbing, helping clients remove their criminal records for crimes that were later dismissed.[1] The Internet provides easy access to criminal background reports.[2] Because criminal background checks have become customary in hiring practices,[3] past criminals are more likely to be prejudiced against in employment.[4] Some Internet platforms, like Google, fail to remove past arrest reports for crimes that were later dismissed.[5] Because employers have easy access to past arrest reports through various background check programs,[6] and criminal background checks have become customary in most hiring practices,[7] failure to remove the content may lead to the loss of employment opportunities. As a result, lawyers have recently begun specializing in advising or suing Internet platforms to remove erroneous arrest reports.[8]

Because scrubbers already exist to facilitate clients in the removal of past arrest reports, this article will focus instead on the potential for scrubbers to facilitate the scrubbing of defamatory content off the Internet, working with platforms like Google and Facebook to regulate user activity on the Internet. The remainder of this section will provide a brief overview of defamation law to set the context for how scrubbers could play a role in moderating Internet content to protect defamation plaintiffs.

B. Defamation

Defamation refers to speech that is a false statement, presented as a fact, conveyed to at least one other person, where the speaker was at least negligent in disregarding the conveyed information’s probable falsity, causing damage or harm to the plaintiff.[9] Because defamatory information is false and harmful, it falls outside the scope of speech protected under the First Amendment of the United States Constitution.[10] Therefore, both federal and state laws allow plaintiffs to sue for defamation.[11] However, there are substantial limitations to plaintiffs’ abilities to recover in defamation lawsuits.

1. Defamation under Federal Law

Speech about public officials, such as political officeholders, and/or public figures, such as celebrities or noteworthy media personalities, usually involve matters of public concern due to the high visibility and notoriety of public figures and officials.[12] Federal law accordingly holds plaintiffs who are public officials or public figures to stringent standards to recover for defamation.[13]

In New York Times Co. v. Sullivan, the Supreme Court held that when defamation plaintiffs are public figures, and the speech in question involves a matter of public concern, they must prove the defendant(s) acted with actual malice in publishing or communicating the defamatory information.[14] Actual malice requires proof that the defendant conveyed the defamatory information with knowledge of its falsity or reckless disregard for whether or not it was false.[15] Actual malice is difficult for plaintiffs to demonstrate because it requires proof the defendant had doubts about the truth or falsity of the information before publishing or communicating it, and there is usually no evidence to prove this.[16] However, the more stringent standard encourages other media and news agencies to freely publish information concerning matters of public importance without the fear of a defamation lawsuit,[17] so long as they do not intentionally or recklessly disregard the truth of information they publish.

Conversely, private individuals can bring federal defamation lawsuits more easily. Unlike public figures, private individuals have less access to the media, where defamatory remarks can be more easily contested.[18] Also, unlike public figures, private individuals do not assume the increased risk of defamation because they have not willingly entered the scope of public debate.[19] Therefore, where defamation plaintiffs are private individuals rather than public figures, and the speech is not about a matter of public concern, federal law requires only a showing only that the defendant was negligent in disregarding whether or not the conveyed information was true or false for a defamation plaintiff to prevail.[20]

2. Defamation under State Law

In most states, where defamation litigation mainly occurs, individuals have a cause of action for defamation if they can prove: (1) a false statement purporting to be fact; (2) was conveyed to someone else; (3) causing damage or harm to the plaintiff; (4) with fault amounting to at least negligence.[21] States vary slightly in how they draft and apply defamation statutes.[22] Both federal and state defamation, however, require some false statement purporting to be fact that damages another’s reputation.

III. Analysis

When individuals, politicians, or companies become the target of defamatory content, they have a few options.[23] They can contact the publisher of the defamatory content directly, but usually receive no response.[24] Next, they can contact the Internet platform, like Facebook or Google, and request they take down the content.[25] In the ideal case, the platform will remove or redact some of the content, but many larger platforms have automatic refusal notices until a court order is obtained to have the content removed.[26] Therefore, bringing a defamation lawsuit may be required, to which there are many practical roadblocks.

1. The Plight of Defamation Plaintiffs

Plaintiffs encounter many practical challenges in defamation lawsuits. Firstly, statements purported to be fact, which fall under the scope of defamation liability, can be difficult to distinguish from opinions, which fall outside the scope of defamation liability.[27] For instance, “John is mean” can be read as both a statement of fact and opinion. John could be objectively mean to everyone, or John could be mean only in the eyes of the individual speaker.

Secondly, defamation plaintiffs may be motivated by their desire to vindicate the truth, rather than money damages.[28] Proving actual damages or harm may be difficult when the plaintiff has not suffered much financial or emotional harm.[29] However, even without proof of actual damages or harm, individuals subject to defamatory content still suffer from reputation damage among their peers. 

Thirdly, defamation plaintiffs must anticipate the defendant’s activation of an anti-SLAPP statute, which are state laws providing defendants the power to initiate SLAPPbacks to commenced defamation litigation, which refer to early motions to dismiss the lawsuit or a separate lawsuit filed against the plaintiff for malicious prosecution.[30]

The extra hurdles associated with bringing a defamation lawsuit make it more difficult for defamation plaintiffs to prevail.[31] However, a more stringent standards for plaintiffs to prevail in defamation actions encourages individuals and the media to speak freely and openly about issues of public importance, as it reduces the possibility they will be sued for defamation.[32] The threat of defamation lawsuits may “chill” individuals or other media organizations into silence for fear of defamation litigation.[33] Therefore, the weight of free speech values is often heavily stacked against defamation plaintiffs.

2. Could Scrubbers be a New Hope for Defamation Plaintiffs?

Although the U.S. Constitution restricts the government from doing certain things, such as restricting protected speech under the First Amendment,[34] it does not restrict private individuals from restricting speech.[35] Platforms like Facebook and Google are private companies and can therefore remove content from their platforms at will.[36] Scrubbers should work with platforms and facilitate the removal of defamatory content from Internet platforms. Scrubbers could charge fees to would-be defamation plaintiffs to facilitate removal of the damaging content. 

However, absent court orders, many large Internet platforms send automatic denial responses to requests for the removal of defamatory content.[37] This may suggest that scrubbers would not be able to petition Internet platforms for the removal of content absent judicial intervention, subjecting scrubbers to the practical constraints associated with pleading a successful defamation case in order to obtain a court order for removal of the content. However, there is public pressure on Internet platforms, like Google and Facebook, to moderate content more closely,[38] suggesting Internet platforms may welcome the idea of scrubbers to satisfy obligations to their users. Further, there has been large bipartisan support for expanding the liability of Internet platforms for content published by individual users,[39] suggesting that many people may warmly welcome alternative means, such as scrubbers, to moderate harmful internet content.   

IV. Conclusion

Although scrubbers have only been employed so far to facilitate the removal of criminal arrest reports from the Internet that should have been removed, the Internet’s growth as an outlet for publishing damaging content suggests the breadth of “scrubbing” may soon expand into a method for the technology industry to self-regulate. Internet platforms can and should collaborate with scrubbers to identify and remove harmful, reputation-damaging content for clients with genuine claims of reputation damage, but without the resources or desire to bring a time-consuming and expensive defamation lawsuit.

[1] See Mark Sherman, Making Progress in Scrubbing the Internet & Removing Your Connecticut Online Arrest Report, The L. Off of Mike Sherman, https://markshermanlaw.com/blog/making-progress-in-scrubbing-the-internet-removing-your-connecticut-online-arrest-report/; See Allan F. Friedman, Cleaning Your Criminal Arrest Record off the Internet, Allan F. Friedman: Criminal Lawyer, https://www.allanffriedmanlaw.com/cleaning-your-criminal-arrest-record-off-the-internet.html.

[2] See Andrea Collatz, Where To Get a Background Check for Employment, TransUnion (Jan. 23, 2020), https://hires.shareable.com/blog/where-to-get-background-check-employment.

[3] Conducting Background Investigations and Reference Checks, SHRM, https://www.shrm.org/ResourcesAndTools/tools-and-samples/toolkits/Pages/conductingbackgroundinvestigations.aspx.

[4] Eric Westervelt & Barbara Brosher, Scrubbing The Past To Give Those With A Criminal Record A Second Chance, NPR (Feb. 19, 2019)

[5] Sherman, supra at note 1.

[6] See Collatz, supra at note 2.

[7] Supra at note 3.

[8] See supra at note 1.

[9] Defamation, Legal Info. Inst., https://www.law.cornell.edu/wex/defamation.

[10] Stephen J. Wermiel, The Ongoing Challenge to Define Free Speech, Am. Bar. Assoc., https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/the-ongoing-challenge-to-define-free-speech/the-ongoing-challenge-to-define-free-speech/.

[11] David L. Hudson Jr., Libel and Slander, The First Amend. Encyclopedia (May 14, 2020), https://www.mtsu.edu/first-amendment/article/997/libel-and-slander#:~:text=Defamation%20is%20a%20tort%20that,fact%20that%20harm%20another’s%20reputation.&text=The%20First%20Amendment%20rights%20of,on%20issues%20of%20public%20concern.

[12] Id.

[13] Id.

[14] 376 U.S. 254, 279-80 (1964).

[15] Id.

[16] Stephen Wermiel, Actual Malice, The First Amend Encyclopedia (2009), https://www.mtsu.edu/first-amendment/article/889/actual-malice.

[17] Hudson, supra at note 11. 

[18] Gertz v. Robert Welch,418 U.S. 323M 338-39 (1974).

[19] Id.  

[20] Id. at 350

[21] Defamation, Legal Info. Inst., https://www.law.cornell.edu/wex/defamation.

[22] Id.

[23] Christine Rafin, Esq., Article: An Attorney’s Advice for Removing Negative, Defamatory and Infringing Material from the Internet, Reputation Communications (Nov. 30, 2020), https://reputation-communications.com/article/removing-defamatory-material-from-internet/.

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] See Donald B. Kaufman, You Are The Victim of Defamation: Should You Sue?, McNees (Aug. 24, 2016), https://www.mcneeslaw.com/victim-defamation-sue/.

[29] See Amir Tikriti, Calculating Damages in a Defamation Case, AllLaw, https://www.alllaw.com/articles/nolo/civil-litigation/calculating-damages-defamation-case.html.

[30] Rafin, supra at note 22.

[31] Hudson, supra at note 11.

[32] See Id.

[33] Id.

[34] U.S. Const. amend. I; U.S. Const. amend IV. 

[35] See Id.

[36] Brent Skorup, ISPs have a First Amendment right to block content, Plain Text (Nov. 17, 2015), https://readplaintext.com/isps-have-a-first-amendment-right-to-block-content-323ca1ebdf0b.

[37] Rafin, supra at note 22.

[38] Neville L. Johnson et al., Defamation and Invasion of Privacy in the Internet Age, 25 Sw. J. INT’l L. 9, 29-30 (2019). See Kevin Heaphy, California Holds That Internet Service Providers, Such as Yelp, Can Disobey Orders to Remove Defamatory Posts – So How Can Companies Remove False Reviews From The Internet?, The Ntl. L. Rev. (Feb. 15, 2019), https://www.natlawreview.com/article/california-holds-internet-service-providers-such-yelp-can-disobey-orders-to-remove.

[39] See Johnson et al., supra at note 37.

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