During the 2006
Winter Olympics, blogger Sean Healy had some pointed criticism of the mother of athlete Shani Davis.
In a post dated Feb. 26, 2006, Healy allegedly wrote that Cherie Davis, the mother of the
black speed skating champion, had criticized members of the speed skating federation as white supremacists and neo-Nazi genetic mutations. Healy made the statements about Cherie Davis on his blog,
Unknown Column, hosted via Google's Blogger service.
Last week, Cherie Davis filed a lawsuit in Cook County, Ill. against Google, demanding the company remove the post. Davis brought the
case against Google and not Healy because he died of cancer in April 2007.
Davis' lawyer, Kurt Kolar, says fairness demands that Google take down the post. "The balance of equities
entitles my client to have this blog entry removed because the author is deceased, Google has no interest in keeping it up there, and it is defamatory," Kolar said.
In the complaint,
Kolar argues that Google "would not be prejudiced" by an injunction ordering it to remove the post, because the company "has no interest, economic or otherwise," in continuing to
host Healy's statement.
But Internet law experts say that Davis isn't likely to get far in court because the Communications Decency Act protects Web companies like Google from libel
lawsuits based on material uploaded by users.
"Google is absolutely immune for the posting, and the fact that Google would not be 'prejudiced' does not change that fact,"
said Paul Alan Levy, an attorney with consumer rights group Public Citizen. He adds that the principle applies even when the person suing is only requesting an injunction and not damages.
Levy
also said that people filing libel lawsuits in Illinois must bring complaints within one year of the material being published. Here, Davis waited more than three years to file a case.
Yet
another potential problem for Davis is that the post probably only is defamatory if it's false and Healy published it with a reckless disregard for its falsity.
Davis alleges in her
lawsuit that Healy's statement wasn't true. But Healy wasn't the only one to report that Davis had accused the U.S. Speedskating Federation of racism. During the Winter Olympics of 2006,
news outlets including The Associated Press and Chicago Tribune wrote that Cherie Davis had accused the federation of racism, while the Australian publication The Agereported that Davis had made similar accusations against the speed
skating community.
Eric Goldman, director of the High Tech Law Institute at Santa Clara University, added that the case raises questions about how people could go about removing potentially
libelous material when the original author is no longer alive.
Goldman said that he expects a court would rule in Google's favor in this lawsuit because the site has immunity under the
Communications Decency Act. At the same time, Google might choose to remove the post if a court ruled that it was libelous. "I don't think Google wants to be in the business of publishing
information that's been proven false," he said.
A Google spokesperson directed Online Media Daily to a Web page about Blogger that states: We do not remove allegedly defamatory content from www.google.com or any other U.S. dot com domains ...
The only exception to this rule is if the material has been found to be defamatory by a court, as evidenced by a court order."