Techdirt, Volokh Conspiracy Targeted With Bogus Defamation Claim For Publishing A Bunch Of Facts

Defamation

from the please-sir,-may-I-have-some-more-shovel? dept

Last spring, Mike Masnick covered a completely fake court order that was served to Google to make some unflattering information disappear. The court order targeted some posts by a critic of a local politician.

Ken Haas, a member of the New Britain (CT) city commission got into an online argument with a few people. When things didn’t go his way, Haas played a dubious trump card:

Several months ago, he got into a public controversy with local activist Robert Berriault — allegedly, when someone got in a Facebook political spat with Haas, he responded by writing, “You do know I have access to ALL city records, including criminal and civil, right???” Berriault took that to be a threat that Haas would misuse that access for political purposes and wrote about this on the New Britain Independent site, as well as in a not-much-noticed change.org petition calling for Haas’s removal.

Following this, a delisting request was sent to Google with a supposed Connecticut federal court order attached. But the judge who signed it (John W. Darrah) didn’t exist, the word “state” was misspelled (as “Sate”), and the docket number had already been used for another, existing civil case.

Ironically, as Mike discovered, the docket number linked to an Illinois case (and there is a judge named “John W. Darrah” in Illinois) with some similar subject matter. It was a Prenda case and it involved, of all things, allegations of document forgery.

That was a crazy case for a whole bunch of reasons, but it also got a ton of public attention. If you’re going to fake a court document, maybe don’t take one that is on a widely known case that got a lot of attention and is partly about forging legal documents? It’s like trying to pick a disguise to be inconspicuous in committing a crime, and dressing up like Hitler. People are going to notice, and they’re going to remember.

Eugene Volokh, who first discovered the bogus takedown notice, obtained a copy of the police report linked to Haas’ ill-advised social media foray. Apparently, Haas thought the police would hand him the online victory he had so miserably failed to obtain earlier. He reported Robert Berriault for harassment, only to be told nothing of the sort had taken place. Haas even admitted he had made the only threat — the one where he implied he’d start dumping private records if his opponents didn’t shut up.

The police told Haas something and it made him very sad.

I advised Haas that this was not a criminal act and that Berriault had every right to voice his opinion. I advised Haas that when you choose a career in politics that harsh criticism comes with the territory. Haas stated that he understood.

The sender of the takedown notice with the bogus court order is unknown, but the most direct beneficiary of the removal of these links would be none other than Ken Haas. It could be some sketchy rep management firm did the dirty work, but Haas was likely involved somehow.

Haas has apparently not let this go. Invaluable scourer of the Lumen database, Dean Jones, points out another bogus attempt to delist online content has been made — targeting posts at both Techdirt and the Volokh Conspiracy.

Now it emerges that an anonymous complainant has sent Google a defamation complaint requesting the removal of the two articles from its search results, citing a 1979 Supreme Court case concerning the public disclosure of personal information.

Yes, this one is styled as a defamation takedown request, even though both articles are factual and contain receipts. The takedown notice cites a Supreme Court decision that has nothing to do with either post, despite the claims made in the notice.

In 1979, the U.S. Supreme Court recognized an individual interest in the “practical obscurity” of certain personal information. The case was DOJ v. Reporters Committee for a Free Press. As well, this information is harmful to me as it concerns unfounded information which never resulted in prosecution. Not only has the dissemination of this information never been legitimate, but its internet referencing is clearly harmful to my reputation as my professional and personal surroundings can access it by typing my first and last names on the Internet.

This case has to do with withheld documents and FOIA exemptions. It does not guarantee some right to “practical obscurity” for all Americans. In this case, the DOJ withheld rap sheets from release, arguing their release would be an “unwarranted invasion of privacy.” The Supreme Court agreed, stating that the purpose of FOIA law was to permit examination of the government’s inner workings, not subject private citizens’ lives to greater scrutiny.

A police report, obtained and posted by a private citizen (or even a news agency), is not a violation of this ruling. And it sure as hell isn’t defamation. Haas is welcome to litigate the issue, but he’d have to sue the police department for releasing it. If Eugene Volokh acquired it from the other party in the complaint (who has a right to obtain a copy of the police report), then Haas has no one he can bring legal action against. The other party involved in a police report can do whatever they want with their copy, including sharing it with blogs detailing a politician’s incredibly stupid actions.

As Jones notes at Shooting the Messenger, Google was no more impressed with this latest attempt to vanish critical posts. The links remain live in Google’s search engine results and Haas’ reputation remains as mismanaged as ever.

Filed Under: bad takedown, fake court orders, ken haas, reputation management, takedown, wrongful takedown