Techdirt Receives Its First 'Right To Be Forgotten' Request

from the which we will not follow dept

Following the ridiculous right to be forgotten ruling in the EU Court of Justice last month, we knew that it would open the floodgates to crazy requests from people trying to take down embarrassing things about them online. Immediately after the ruling, politicians and pedophiles alike rushed to ask Google to take down links to content about them. Once Google set up a form for handling such requests, tens of thousands of requests poured in.

But, of course, it was only a matter of time until people started trying to stretch the ruling further and further impacting other sites — including ours. We’ve already noted how former NSA top lawyer Stewart Baker has asked Google to “forget” all Techdirt posts about him, though he was doing it to highlight the absurdity of the “right to be forgotten” concept (though, I imagine he wouldn’t mind if all such posts disappeared).

However, over the weekend, we received our first request to remove comments from Techdirt, with the request referencing Europe’s new ruling on the right to be forgotten. Over the years, we’ve received many, many legal threats in attempts to get us to remove comments, but (to date!) no actual lawsuits, because nearly all the threats are bogus (usually they ignore the protections Section 230 of the CDA provide to Techdirt, but they also tend to have extreme — and extremely incorrect — definitions of what kind of content is “illegal”). This particular situation appears to be a bit more complicated, but we’re still not removing the comments.

The request references three comments on this story from 2011, which was about a (very bad) ruling by a California state appeals court, that found two advertising firms could be held liable for spamming actions done by their affiliates (and sub-affiliates). We found this problematic for a variety of reasons, but mainly because it totally ignored Section 230, and put the blame on one party for actions done by another. In the comments, someone named “Bill Silverstein” popped up to defend the ruling. In what appears to be something of an aside, he mentions in passing that he, himself, is engaged in some sort of similar litigation against two individuals, David Szpak and Emmanuel Gurtler. To be honest, the details of Silverstein’s lawsuit are not at all clear from the comment, but he clearly thinks that this ruling helps his case.

I responded to his comment suggesting that the ruling was still problematic and that the focus should be on going after the people actually responsible for the spamming. Silverstein then responded, disagreeing with me and ranting about spammers — again mentioning Szpak and Gurtler.

Over the weekend, we received an email from Emmanuel Gurtler demanding that all three comments be deleted, based on what we believe is his own misreading of both the claimed settlement between Gurtler and Silverstein and the new right to be forgotten ruling. Here is the main part of the email we received (leaving all typos in place):


I am contacting you in regards to the comments in the above URL by Bill Silverstein (#6, #31) and Mike Masnick’s quote (#26). The comments refer to a lawsuit which has been settled with Mr Silverstein. Part of the settlement offer, the Platiniff (Bill Silverstein) is supposed to remove all information about the lawsuit. Having the fault infromation and false claims listed on your site is causing great deal of reputational probl

“8. Silverstein to Remove Materials from Websites and Refrain from Future Publication. Within ten (10) calendar days of the confirmation that all payments have been completed, Silverstein shall remove from the Websites and all other media under his control and/or ownership, any reference to the Lawsuit, the Dev8 Defendants and/or Affiliated Entities, including but not limited to any personally identifying information regarding the Dev8 Defendants and/or Affiliated Entities. As of the Effective Date, Silverstein agrees not to publish or cause to be published, in any form of media heretofore known and/or subsequently invented, devised, or discovered any reference to the Lawsuit, the Dev8 Defendants and/or Affiliated Entities, including but not limited to any personally identifying information regarding the Dev8 Defendants and/or Affiliated Entities. Silverstein acknowledges that should he violate this Section it shall constitute a material breach of this Agreement. He further acknowledges and agrees that it will be difficult to determine the resulting damages to the Dev8 Defendants and/or Affiliated Entities, and, in addition to any other remedies the Dev8 Defendants and/or Affiliated Entities may have, they shall be entitled to temporary injunctive relief without being required to post a bond and to permanent injunctive relief without the necessity of proving actual damage. The Dev8 Defendants’ and/or Affiliated Entities’ failure to seek any or all remedies with respect to any given breach of this Section does not restrict them from seeking any remedies with respect to any other breach, and shall not constitute a waiver of rights.”

Furthermore, as a resident of the European Union and per the above Settlement order, I am asking in reference to “European Data Protection Directive (Directive 95/46EC)” aka Right to be Forgotten, to have the aforementioned comments and/or quoted replies removed from your site.

First off, we have no way of confirming if the settlement happened or if that’s in the settlement if it did. He provides no further information, case name, or anything. As far as I can tell, there is this lawsuit, which the defendants removed from California state courts to the federal court, but which was quickly sent back to the state courts, where it’s much trickier to track down the records. And, either way, it shouldn’t matter.

Second, and more importantly, even if everything about the settlement is entirely accurate, it pretty clearly says that Silverstein needs to remove statements about the case “from the websites and all other media under his control and/or ownership.” Last I checked (and, hey, I just checked), Silverstein has no “control and/or ownership” of Techdirt. So that settlement term is entirely meaningless to use. Chances are it was directed more at pages like this one, which Silverstein created, tracking the docket of his own cases. Separately, any settlement between Silverstein and Gurtler is between those two parties. Techdirt and myself were clearly not parties to the lawsuit and are clearly not bound by any settlement terms in the lawsuit. So, uh, no, we have no reason to remove.

Third, moving on to the “right to be forgotten” claim. The recent ruling is quite clear that it applies to “the operator of a search engine” and even distinguishes search engine results from information on web pages that those search engines link to, pointing out that even if the original publication may be legal, it’s the search engine (not necessarily the site) that would need to remove the links. Thus, there’s nothing in the latest ruling that directly applies to us anyway. Furthermore, the EU directive in question is about “data controllers” for which Techdirt almost certainly does not qualify. Data controllers are organizations that collect data on people and then store it. Here, Silverstein just posted a couple of comments. Quite different. The latest ruling and the directive have nothing to do with us.

Fourth, as an American company based in the US, incorporated and headquartered in California, and with all of our servers within the US, we are not subject to European laws on this issue. This is just an attempt by someone in the EU to try to censor statements made in the US.

Either way, the entire situation is bizarre and silly — but highlights the kinds of things that plenty of companies are probably now forced to deal with thanks to the ridiculous EU Court of Justice ruling. What’s worse is that many smaller websites and companies that probably don’t follow or understand these issues carefully are probably scared into taking down content based on similar threats. And, frankly, sending the email makes almost no sense at all for Emmanuel Gurtler. This was on a story from more than three years ago, getting basically no traffic at all. The only comments that reference his name are from Silverstein, and, in our opinion, don’t necessarily reflect well on Silverstein, because myself and others argue that his interpretation of the law is suspect and troubling. It’s difficult to see how any of that reflects poorly on Gurtler or hurts his reputation.

However, sending a bogus threat in an attempt to silence other people from mentioning his name? That doesn’t seem to reflect particularly well on Gurtler.

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Comments on “Techdirt Receives Its First 'Right To Be Forgotten' Request”

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42 Comments
silverscarcatsays:

If I was a EU politician...

I’d use this “right to be forgotten” ruling as political fuel.

“We can’t find anything about so-and-so online, therefore they must have done something horrible and are using the law to make it go away! How do we know they won’t do something horrible when they’re in office?!”

That One Guysays:

Re: Re: If I was a EU politician...

‘Live by the sword, die by the sword’? Could work. Wouldn’t even need to mention horrible’, just bring up the fact that politician A appears to have no presence online, no history, and let people take it from there.

Even more effective, at least for the intelligent voters(which, sadly seem to be the minority these days), as no history means you can’t tell how a particular politician has acted or voted in the past, which either means they’re inexperienced, or didn’t want anyone to find out what they’d done in the past.

Anonymoussays:

Re: Re: Re: Re: If I was a EU politician...

Thing is that right to be forgotten only covers specified links. A clever reputation/SEO-manager will not remove all a persons traces from the net, so it will be difficult to spot abusers unless other pages are good about their linking (and I know most journalists aren’t good at it because of fear of infringement in certain jurisdictions).

It depends a lot on Googles interpretation of what to remove though.

John Fendersonsays:

Re: Re: Re: Re: Re: Re: If I was a EU politician...

Actually, it covers less than specific links. It covers specific search terms that lead to specific links. There is no requirement that the links don’t appear in search results, but that they don’t appear in results for certain specified searches.

Still horrible, but pretty easy to work around.

RDsays:

Re: Re: If I was a EU politician...

“We can’t find anything about so-and-so online, therefore they must have done something horrible and are using the law to make it go away! How do we know they won’t do something horrible when they’re in office?!”

This is the same tactic Glenn Beck used to remove all references to his rape and murder of a little girl in 1990. Now, I’m not saying Glenn Beck did or didn’t rape and murder a little girl in 1990, but until he comes clean and addresses this story, we should just keep asking questions until we get answers.

Ariochsays:

Re: Re: If I was a EU politician...

Bear in mind the old NSA mantra.. If you have done nothing wrong you have nothing to be afraid of!

Let’s all join the NSA celebrations. Here is an entire organization that is totally blameless and fears no investigation.

I rest easy in my bed because of their ceaseless vigilance

Except.. you seem afraid of being investigated

Why should I trust you when you obviously do not trust me?

Forgive me for being human but I do not give my trust or loyalty to anyone that treats me with contempt and suspicion

That One Guysays:

Maybe do some research next time...

They knew enough about TD to send the notice, but not enough to know that EU laws don’t affect purely US companies, and, and this is the real kicker, failed to do their homework about the little known ‘Streisand Effect’ that gets mentioned fairly often on TD, which would ensure that the previously forgotten comments would suddenly be thrust into the light by their misplaced ‘legal’ demands.

PaulTsays:

Re: Re: Maybe do some research next time...

“not enough to know that EU laws don’t affect purely US companies”

To be fair, a lot of people seem convinced that US laws do or should affect the entire planet, especially in issues such as copyright and patents, so it’s not a surprise that someone gets it wrong the other way round…

Anonymoussays:

Re: Re:

Well I didn’t know about Emmanuel Gurtler. Until this came out of the woodwork I was totally uninformed. Now what he wished to have forgotten is in my memory as I had to go see what it was that was so important as to actually send a request to have data removed.

Streisand Effect is in full force and now another individual who didn’t know does.

Emmanuel Gurtler would have been much better off not to have said anything as he is the one that has brought this topic again to the forefront, years after it was over and forgotten.

As is often mentioned by The Pirate Bay, this is not the EU and the US does not obey EU laws unless in that country. Jurisdiction has everything to do with court and justice. So far I see Emmanuel Gurtler batting exactly zero.

GMacGuffinsays:

Funny thing is ...

Gurtler may well have breached a confidentiality clause of the same settlement agreement by sending the language to Techdirt.

The quoted language is pretty standard for online defamation cases; as are confidentiality clauses both about the subject matter of the lawsuit, and the specific terms of the settlement.

If the rest of the agreement is SOP, Gurtler may be in breach by revealing it (presumably without consent of Silverstein).*

*Purely speculation, but based on experience.

Zonkersays:

Since Emmanuel Gurtler has taken it upon himself to reopen the issue, I have decided to do a little research about him and the lawsuit he wants us to forget.

It appears that the likely reason that Bill Silverstein went after Gurtler in court instead of the 17 affiliates under Yambo Financials (Yambo), is that Yambo was based out of Ukraine and thus far outside the California court’s jurisdiction:
Why spammers get away with it

Further, it is hard to believe that someone in the business of internet advertising in 2007 would not know the reputation Yambo had since at least 2004 as one of the top 10 spammers in the world (and still on the list today):
Top 10 Spammers

Yambo is also accused of a long history of money laundering, bot-nets, and other crimes: Spamhaus records on Yambo
Basically appears that Yambo Financials is seen as among the worst of the worst, well known for it, and Emmanuel Gurtler still did business with several of their aliases even after being made aware of their spamming and even allowed two default judgments to be ruled against his company for spam prior to this third case being filed.

Judge for yourself whether Gurtler’s involvement or lack thereof would meet the threshold for liability, but in this case it was the California court’s judgement that mattered. However, I can see why Gurtler might not want to be remembered today as having been affiliated with Yambo Financials in the past, especially if he is still seeking work in internet commerce and marketing.

JustSomeGuysays:

“Fourth, as an American company based in the US, incorporated and headquartered in California, and with all of our servers within the US, we are not subject to European laws on this issue. This is just an attempt by someone in the EU to try to censor statements made in the US.” I found that quote hilarious, particularly in the light of the US gub’ment seeming to think its laws don’t stop at the borders 🙂

Note I’m not having a go at Techdirt here, just at the US in general.

Anonymoussays:

Re: Re:

I vaguely remember s.th. about the German govermant wanting to have a little chat with a certain Mr. Snowden and the US got it’s knickers in a bunch about the German gov welcoming Snowden to Germany… because under US law, Snowden is a bad guy.

So Germany better heed US law and… um… not let Snowden into Germany – WHAT?

The US twists and turns, manipulates and coerces everything their way whenever it’s convenient for them and, in the truest childish bully style starts crying and squealing when others try to do it to them.

It’s a shame that shtoopid is so infectious, since the rest of the western world has a loooong history of copying everything the US does. Good or bad, doesn’t matter. For instance, despite completely different surrounding circumstances, some German politicians aped and echoed the cries for a soda tax! Cause ‘Mericuns do it!

So this is really a call for the US to lead by example. You know, like they once did ages and ages and ages ago, when your country was still fighting to stay true to the priciples it was founded on. There once was a reason why a huge chunk of the world wanted to copy you.

Forced Accountability

Forced accountability is something that many view as “haters” but if fact based evidence over time has taught anything people are trying to distance themselves from illegal or unethical behavior. I applaud your resolve; and, have personally been asked 4 times to take down or “edit” my site to protect the guilty. CEOs tagged with billion dollar fines are taking any association to the crime off their corporate websites. It’s our job to keep these criminals connected to their illegal or unethical behavior.

X Smithsays:

I’m a “Right To Be Forgotten” pragmatist.
There are situations where it makes sense. There are situations where being helpful towards someone is the ‘right’ thing to do, even if you have the ‘right’ to stand on some ideological soapbox and stonewall them.

As an admin of a site that generates a lot of original content (and comments), a few times a year I receive requests from people to take stuff down. In all but two instances, I’ve helped them out. Why? Because I value people and I don’t want to harm them. The two times I didn’t? It was my response to communications such as the one seen in this article. Threatening, bullying, manipulative. Come to me with a polite request, I’ll usually help you out. Come to me picking a fight, a fight you shall have.

Of course, its not hard to understand why some people go off the deep end about derogatory internet chatter. For people who throw up the flag of ‘free speech’ as being the end-all to this discussion, I could definitely change your mind on the issue with selective application of derogatory information about YOU on sites that refuse to remove it.

Still, when asking a webmaster to take something down, a little kindness often goes a long way. It doesn’t work with all of them, some are just drunk with power and love the ‘authority of saying no’ but with most, not starting off things as a dbag will really help your case.

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