If "platforms [were not] legally bound by them" wouldn't that pose some serious difficulty for legitimate takedown injunctions?
I mean, sure it'd prevent fraudulent crap like the stuff that is going on in this article, but if someone had a real issue where they needed something taken down, it would never get taken down, right? So I think there needs to be a more involved solution than that. Otherwise we leave the door open for all sorts of nasty stuff to be posted and just left there for eternity to show up on the first page of search results.
> If "platforms [were not] legally bound by them" wouldn't that pose some serious difficulty for legitimate takedown injunctions?
The naming here is potentially misleading and contributes to the confusion. The "takedown injunctions" referred to are not orders by a court to an internet service to take down content (such injunctions can be issued in cases where the internet service is a party, and absolutely are binding.)
Instead, they are injunctions issued in cases where the creator of the content is the defendant (in theory, at least) and are directed at that creator to remove the content; they are then often used by those who initiated the lawsuit to support a request to the internet provider to take the content down.
If an internet service refuses to take down content that really violates some person's rights, a lawsuit against the internet service which generates an order directed against that service to remove the material is always an available means for a mandatory take down, that isn't in dispute.
> If an internet service refuses to take down content that really violates some person's rights, a lawsuit against the internet service which generates an order directed against that service to remove the material is always an available means for a mandatory take down, that isn't in dispute.
Exactly. I would argue that any court order that requires action by a party not named in the court case (and who thus has not had an opportunity to defend themselves in court and avail themselves of the many rights afforded to defendants) should always be non-binding and advisory, with the caveat that choosing to ignore it can and likely will be used as evidence in a lawsuit directly against that party.
Thanks for the clarification. This makes a lot more sense to me now. So if Internet Service X is not ordered to take something down, but told that "[poster] was ordered to take something down", they should be allowed to ignore it. Seems like it'd solve the problem to me. (Especially since it wasn't [poster] but some name-a-like who may not exist.)
They are allowed to ignore the request. They don't, because once they have what appears to be a valid court order (even though the defendant is the creator, not the platform/ISP), it makes economic sense to take the content down (vs pay lawyers).
> If an internet service refuses to take down content that really violates some person's rights, a lawsuit against the internet service which generates an order directed against that service to remove the material is always an available means for a mandatory take down, that isn't in dispute.
Thanks to Section 230 of the CDA, it actually isn't an available means for a take down in cases where the content was posted by someone else. The reason this kind of third-party injunction is so important is because it's currently the only way to force uncooperative internet providers to take down defamatory content originally written and posted by someone else, some of which don't let the original author remove it. From what I can tell Eugene Volokh wants these websites to have their cake and eat it: he thinks they should have immunity from being sued to remove user-submitted content on the basis that they may not be treated as authors of it, and also immunity from being forced to take down the content in lawsuits against the original author because they must be treated as authors too.
I mean, sure it'd prevent fraudulent crap like the stuff that is going on in this article, but if someone had a real issue where they needed something taken down, it would never get taken down, right? So I think there needs to be a more involved solution than that. Otherwise we leave the door open for all sorts of nasty stuff to be posted and just left there for eternity to show up on the first page of search results.