The Impact of Search Engines on Litigation

Once only available to those who had the energy to search through courthouse files, court opinions, petitions and other judicial documents are now immediately published in full on the Internet. In fact, all federal and state courts, and many local courts, publish their daily decisions on an official government web site. University and private websites then provide a second layer of publication by aggregating and republishing these judicial records. Free and widespread electronic publication of court opinions has occurred for over decade, and the injection of advanced search technologies into the public judicial record has yielded offensive results.

Google Yourself

Googling yourself is not just a guilty pleasure -- it's a self-defense strategy. An Internet search on your name (a.k.a. "vanity search") can yield pages of material ordered in a seemingly random and sometimes unflattering fashion. Job seekers, loan applicants, apartment hunters and others striving to make a good impression are wise to keep an eye on the online information about themselves. Specifically, if you have ever been a litigant or a named witness in a trial, or share the same name as one, chances are high that details about the court action will appear in a search on your name.

Consider the types of litigation in which individuals routinely engage: paternity suits, child support actions, evictions, personal injury claims, racial and sexual discrimination violations, estate issues, criminal actions and so forth. These kinds of proceedings usually contain highly personal and sensitive information. While the information is not confidential, it is not the kind of material one would choose to lead off of his/her online profile.

Litigation can be a stressful, painful and/or humiliating experience. Businesses have grown accustomed to public attention around their litigation, due to shareholder accountability and media scrutiny. Now, due to advanced search engine technology, individuals must endure similar heightened attention when they exercise their right to sue (and be sued).

The "Prominent Placement" Problem

The problem addressed here is not necessarily the existence of judicial/litigation information within an individual's search results, but rather, the prominent positioning of the information within the results. A logical question arises: "Why would a court opinion show up prominently in an individual's search results?"

This "prominent placement" phenomenon occurs for a combination of reasons: 1) Judicial filings that contain individuals' names are public records that enjoy stringent Constitutional protection; 2) Search engine technology is so sophisticated that virtually all online content can be checked for search query term matches; and 3) Commercial publishers of judicial information believe there is a compelling public interest in making the law publicly available, and use search engine optimization (SEO) techniques to appear at or near the top of search result rankings.

Damages To Individuals And To The Judicial Process

A highly-ranked court opinion on any search engine can have adverse effects on the named litigants and consequently, the larger judicial process. Search engine usage studies show the overwhelming majority of users tend to scrutinize only the top three or four results of any given search. [1] Also, search engine users often believe the ranking system is based on order of importance and relevance. As a result, individuals with lawsuits -- even minor ones -- appearing high in their search results may be negatively affected. In terms of damage to reputation, these people may be wrongly viewed as overly litigious or troublemakers.

For example, a qualified individual submits an employment application to a prospective employer, who then performs a Google search on the applicant. The published trial and appellate decisions of the applicant's past employment discrimination suit appear in the top two positions of her search results. Though the prospective employer is legally prevented from discriminating against the applicant on the basis of this past claim, the appearance of the opinions at the top of the search results makes the applicant seem like a troublemaker or whistleblower. As a result, the employer does not offer the position and manufactures an artificial reason for not hiring the applicant.

Damages attributable to the prominent placement phenomenon are often "soft," meaning that they are speculative. In the example, the applicant may suspect the Google search hurt her chances of getting the job, but since the employer gave a different, more legitimate reason, the applicant will have difficulty proving the Google search caused her to miss out on the job. The applicant may only be able to claim that when she Googled herself, she suffered emotional distress at being cast in a misleading light. The difficulty in proving these damages is one major reason that fashioning a legal remedy for this problem is so difficult.

The prominent placement of judicial information also has a chilling effect on individuals' rights to file lawsuits, which has a resulting negative impact on the larger administration of justice. If there is a high risk that a person's reputation will be sullied by the prominent placement of a sexual harassment suit, s/he may have serious reservations about bringing a bona fide claim. Over time, as people share troubling stories of how their embarrassing suits appear at the top of their Google profiles, more may turn to unsatisfying alternative dispute resolution, confidential pre-litigation settlement, or forgo claims altogether just to preserve their online resume. A phenomenon that encourages tortious acts to go unpunished or settled in a shroud of secrecy is certainly not in the best interests of the judicial system.

Discounting and Defending the Problem

The prominent placement of judicial information in an individual's online search result seems to be such a minor problem in comparison to the wide spectrum of Internet ills, such as identity theft, child pornography and online predators. Opponents have an abundance of countervailing arguments to discount the dilemma. Some say the aggrieved parties' injuries are self-inflicted because they are the ones who filed the suits in the first place. This argument correctly points out that public disclosure is a trapping of filing a lawsuit, but it fails to acknowledge that the "Googlization" of the judicial record has acutely exacerbated this formerly-minor irritation. The general public now has immediate world-wide access to a litigant's disclosure. Also, for a variety of reasons, parties are not able to timely seek protective court orders that would offer some protection from this problem.

Another opposing view is that the prominent placement phenomenon operates as a beneficial counterbalance to unnecessary litigation -- a sort of public humiliation factor that repels frivolous claims. This argument incorrectly asserts that the litigation suppressed by the phenomenon will in fact be frivolous. What about bona fide discrimination, harassment and divorce suits that are stifled by the phenomenon? Surely, this is not the kind of litigation we want to deter.

Legal and Practical Remedies

1. Google

Google is usually the first place an aggrieved party will go for relief from awkwardly placed judicial information. Legally, the search engine has a sound position concerning their results ranking system, called PageRank. In Search King v. Google, Case No. Civ-02-1457-M (W.D. Okla., Jan. 13, 2003 ) the Court dismissed a suit by an internet marketing company alleging that Google must adhere to a particular method of ranking search results. The Court backed the defendant's assertion that "the PageRank that Google assigns to a web page is simply Google's view or opinion of the importance of that web page." [2] PageRank is therefore an expression of a view or opinion that is protected by the First Amendment. Essentially, Google has the unfettered right to structure the performance of its own search engine. [3]

Google, Inc., however, is not the immovable rock that many claim it is. An event in March of 2002 marks one instance where the search giant modified its operations in response to a complaint from the Church of Scientology. Wielding the contributory infringement provisions of the Digital Millennium Copyright Act (DMCA) [4] , the Church of Scientology persuaded Google to remove all links to a site that purportedly infringed the church's copyrights. [5]

Unfortunately for victims of prominently placed judicial information syndrome, there are no contributory copyright violations to use as leverage. Nevertheless, a party can bring a state tort suit that asserts a false light, misrepresentation or tortious interference claim. To prevail in such an action, however, a party must fulfill the difficult task of proffering concrete evidence of actual harms and damages flowing from a search engine's ranking. When thinking about pleading various privacy-based torts, it is important to keep in mind that civil litigation is usually a voluntary matter for the litigants, which means that most of the information generated by the action becomes part of the widely-available public record. Thus, while an artfully crafted complaint might be able to make a prima facie case under a state privacy tort law, a more effective approach to combating the phenomenon requires an appeal to Google's business side.

Larry Page, Google's co-founder, has on many occasions stated that his search engine's mission is to return the best links that produce the best results. If enough users complain to Google about inappropriately placed judicial information, the search engine may be persuaded to modify its operations to avoid this negative side-effect. After all, Google's mantra is "Don't be evil." [6]

Assuming Google has this intention to be the good provider of ultra relevant search results, one practical remedy for the problem is for the search engine to categorize all information by general type and offer distinct searches of those particular types. The number of sites on the Web has multiplied from 4 billion to 10 billion. [7] This explosion of information is attributable to the exponential growth of personal publishing [8] , electronic conversion of paper records [9], and international web participation. Due to the tremendous volume and variety of current information, general Web searches without parameters have become counterproductive to Google's goal of returning relevant information to every query.

Industry rumors validate the assertion that vast amounts of information require an ontological and categorical structure in order to be highly useful. Recent press releases indicate that Google will soon be sequestering content by origin, such as academic content (Google Scholar) [10] and blog content (Google Blog). The onus will then be on engine users to select a "search channel" to find the particular kind of information they are seeking. [11] Since this article was first published, the search giant now publishes case law and other judicial records in Google Scholar, which "provides a search of scholarly literature across many disciplines and sources, including theses, books, abstracts and articles."

2. Secondary Publishers

Universities and private companies that republish judicial materials (like FindLaw) are the second place that aggrieved parties turn to for relief from prominently placed judicial information that casts a negative pallor on their personal search results. Often, the secondary publisher is responsible for the web site that hosts the highly-ranked, judicial information, not the official court site. Distinct from the material on an official court site, the information hosted by secondary publishers has often been enhanced in accordance with search engine optimization (SEO) principles.

SEO is designed to make web pages appear at or near the top of search engine results by employing a variety of techniques. Common, accepted SEO practices involve using keywords and metadata into the hidden source code on each web page. Thus, a web page with metadata tags containing a case name will show up higher in a Google search than the same page that contains no such information. [12] Over time, PageRank attributes a high score to all web pages of a secondary publisher that employs SEO. This practice partially explains why a FindLaw page containing John Q. Public's discrimination case appears at the top of John Q. Public's Google search results.

Requesting the secondary publisher to cease or disable its SEO on pages containing sensitive judicial material is one possible remedy for the concerned party. The secondary publisher has the ability to insert a "Robot.txt" file into its source code. [13] Placing a robot.txt files on a web page is akin to hanging a "Do Not Disturb" sign on a hotel door - it tells any search engine's content fetching robots that they may not fetch that particular page. While this may seem like the perfect solution, the commercial benefits in favor of using site-wide SEO -- such as advertising revenues, web traffic ranking, top-of-mind consumer awareness, return on keyword investment and related marketing reasons -- weigh heavily against the provision of such relief.

Alternatively, a victimized individual could request that the secondary publisher remove the entire opinion from its site. This action would most likely fail because there is inherent research value in providing all published judicial opinions in any given jurisdiction. Taking down one or two embarrassing opinions would result in what Professor Eugene Volokh terms a "small change tolerance slippery slope." [14] That is, if a secondary publisher removes a small number of opinions for empathetic reasons, it is then faced with the prospect of having to remove more and more opinions as other "dire" circumstances dictate. The end result would be substantial gaps in the public judicial record.

To avoid the pitfalls of the slippery slope, organizations like FindLaw have removed public information only in very limited circumstances. The most relevant exception is when a court orders removal of the judicial opinion or a part thereof from the public record.

3. Primary Publishers: The Courts

Perhaps the party best situated to place limitations on the distribution of judicial information is the primary source: the court. Indeed, the judicial system has already established rules governing access to sensitive judicial information. At the state level, certain types of judicial information are records that courts must keep confidential by law. For example, California family law states, "The files of the family conciliation court shall be closed." [15] Similar legislation exists to guard against the disclosure of minors' names in juvenile court opinions.

Rule 12.5 of the California Rules of Court is dedicated to "sealed records and records proposed to be sealed on appeal and in original proceedings." [16] The Advisory Committee Comments of the rule state, "The sealed records rules apply to civil and criminal cases. They recognize the First Amendment right of access to documents used at trial or as a basis of adjudication." [17] Clearly, the courts have given due consideration to the privacy issues at hand, and have put the burden upon the litigants (the true primary sources?) to file their sensitive documents under seal.

In light of today's Googled and search optimized judicial record, attorneys must make clear to their clients that submission to the judicial process will bring a certain amount of exposure. Parties who fail to exercise their right to privacy in a timely manner by filing under seal effectively waive those rights. Courts will hear motions to seal an opinion after it has been published, but post-judgment publication orders are difficult to obtain, and a party may have to first work through an appeal in order to have an opinion de-published or sealed by the court.

4. Self Help

Parties who find themselves victimized by a highly placed lawsuit on their Google ranking have a self-help option that does not involve litigation. Quite possibly the most effective solution is to become a publisher of one's own information. By taking a proactive role in one's public persona and reputation management, individuals can influence which personal information appears at the top of their search engine results.

There are a variety of free and low-cost domain and weblog hosting opportunities that an aggrieved party can access, not to mention a plethora of free social network profiles, such as Facebook, LinkedIn, Google+ and MySpace. Ideally, s/he can learn to use the SEO techniques and perhaps send the Googler to her own personally manufactured websites. Furthermore, for a relatively small cost, a victimized party can post his/her original complaint, appeal and other filings not routinely posted by primary or secondary publishers of judicial information. Posting such information is a good way to rebut an adverse court ruling in the public context of the Internet. The old salt, "If you can't beat 'em, join 'em," holds a surprising amount of wisdom in this particular situation.

Conclusion

The prominent placement of judicial information in an individual's online search results is a steadily increasing phenomenon that causes subtle yet actual harms. Unfortunately, when trying to remedy the damaging placement of information, affected individuals encounter virtually insurmountable First Amendment and commercial hurdles. As a result, some may view this phenomenon as one of life's irremediable annoyances that must be silently endured. Because there are no concrete remedies available to combat this phenomenon, the filing of certain types of lawsuits may be chilled by fear that the published litigation will become the fountainhead of one's online existence.

Finally, until this particular problem is adequately addressed by a company or a court, individuals should take it upon themselves to manage their online reputations by becoming publishers and controllers of their own information.


[1] FindLaw search engine and marketing studies.

[2] Google's Response and Opposition to Plaintiff's Motion for Preliminary Injunction

[3] The Internet is a medium in a state of rapid flux. The same search technologies and optimization processes which cause the problem today may be replaced tomorrow and render the problem moot.

[4] 17 U.S.C. Section 512(c)(3)

[5] From the text of the email sent from Google to Xenu.net, the site allegedly infringing the Church's Copyrighted materials, excerpted at http://www.microcontentnews.com/articles/googlechurch.htm and http://microcontentnews.com/articles/googleupdate.htm

[6] Page 32 of Amendment 7 to Form S-1, filed by Google with the Securities and Exchange Commission

[7] Page B-11 of Amendment 7 to Form S-1

[8] Weblogs

[9] Electronic conversion is occurring at many levels, including governmental e-filing mandates, business record conversion, and Google's conversion of library collections.

[10] See http://scholar.google.com

[11] Such a structure would be similar to the concept of television channels.

[12] N.B. SEO principles are designed around various evolving search engine algorithms, and are therefore in a constant state of flux.

[13] "Robot.txt file Guide"

[14] Eugene Volokh, "The Mechanisms of the Slippery Slope," a condensed version of the article published in 116 Harv. L. Rev. 1026 (2003)

[15] California Family Code 1818(b)

[16] Rule 12.5 of the 2004 California Rules of Court

[17] The 2000 Advisory Committee Comments of Rule 12.5 of the California Rules of Court