Writing a bad review online has always run a small risk of opening yourself up to a defamation claim. But few would expect to be told that they had to delete their review or face a lawsuit over another part of the law: copyright infringement.
Yet that’s what happened to Annabelle Narey after she posted a negative review of a building firm on Mumsnet.
Narey, who is the head of programme at an international children’s charity, had turned to London-based BuildTeam for a side return extension, but almost six months later, the relationship had turned acrimonious. The build, which was only supposed to take 10–14 weeks, was still unfinished, she wrote. “On Christmas day a ceiling fell down in an upstairs bedroom,” she says, apparently due to an issue with the plumbing. “Mercifully no one was hurt. [That] there seem to be so many glowing reports out there it is frankly curious. Proceed at your own risk,” the review concluded.
BuildTeam disputes her account. In a letter sent to Mumsnet, which the site passed on to Narey, the builders complained that the comments were defamatory. They say it is “untrue” that the ceiling fell down due to an issue with plumbing, and cited a total of 11 statements they claimed were defamatory.
Mumsnet, following UK law on libel accusations, passed the letter on to Narey and offered her the chance to delete the post or get in touch with BuildTeam to sort out the matter.
“BuildTeam have been in touch persistently with us at Mumsnet since mid-March, asking for the thread to be removed,” a spokeswoman said. “We’re keen to defend our posters’ freedom of speech and to ask complainants to follow due process, so previously we had referred them to Section 5 of the 2013 Defamation Act.”
By this point, the thread on Mumsnet had grown to include other posters claiming to have had bad experiences with the building firm. Some of them decided to remove the posts in response to the legal threats from BuildTeam, but Narey wanted to keep hers up.
BuildTeam says that “at no point has … Build Team Holborn Ltd stated that they are to pursue a defamation claim against any individual. Enquiries were made to the relevant web hosts as to their position for such posts being made, thus resulting in the relevant documentation being lodged with the aforementioned hosts. At present Build Team Holborn Ltd are currently assessing the situation and/or their options in respect of reserving their rights should any action be required in the future.”
Narey says that after she heard from Mumsnet about the defamation claims, BuildTeam got in touch personally to ask for the post to be removed. “Staff even came to our house holding printouts of it. They never acknowledged the contents or made any apology, but distanced themselves from the context of the review, asking only for it to be taken down,” she said.
But in April, the decision was made for her, in a very peculiar way. Mumsnet received a warning from Google: a takedown request had been made under the American Digital Millennium Copyright Act (DMCA), alleging that copyrighted material was posted without a licence on the thread.
As soon as the DMCA takedown request had been filed, Google de-listed the entire thread. All 126 posts are now not discoverable when a user searches Google for BuildTeam – or any other terms. The search company told Mumsnet it could make a counterclaim, if it was certain no infringement had taken place, but since the site couldn’t verify that its users weren’t actually posting copyrighted material, it would have opened it up to further legal pressure.
In fact, no copyright infringement had occurred at all. Instead, something weirder had happened. At some point after Narey posted her comments on Mumsnet, someone had copied the entire text of one of her posts and pasted it, verbatim, to a spammy blog titled “Home Improvement Tips and Tricks”. The post, headlined “Buildteam interior designers” was backdated to September 14 2015, three months before Narey had written it, and was signed by a “Douglas Bush” of South Bend, Indiana. The website was registered to someone quite different, though: Muhammed Ashraf, from Faisalabad, Pakistan.
Quite why Douglas Bush or Muhammed Ashraf would be reviewing a builder based in Clapham is not explained in “his” post. BuildTeam says it has no idea why Narey’s review was reposted, but that it had nothing to do with it. “At no material times have we any knowledge of why this false DCMA take down was filed, nor have we contracted any reputation management firms, or any individual or a group to take such action on our behalf. Finally, and in conjunction to the above, we have never spoken with a ‘Douglas Bush,’ or a ‘Muhammed Ashraf.’”
Whoever sent the takedown request, Mumsnet was forced to make a choice: either leave the post up, and accept being delisted; fight the delisting and open themselves up to the same legal threats made against Google; or delete the post themselves, and ask the post to be relisted on the search engine.
“Although we understood the user’s argument that something odd had happened, we weren’t in a position to explain what – our hope was that by zapping one post we might ensure that the thread remained listed.”
Mumsnet deleted the post, and asked Google to reinstate the thread, but a month later, they received final word from the search firm: “‘Google has decided not to take action based on our policies concerning content removal and reinstatement’ which (it turned out) meant that they had delisted the entire thread”.
Censorship by copyright
The motivation of Ashraf can only be guessed at, but censorship using the DMCA is common online. The act allows web hosts a certain amount of immunity from claims of copyright infringement through what is known as the “safe harbour” rules: in essence, a host isn’t responsible for hosting infringing material provided they didn’t know about it when it went up, and took it down as soon as they were told about it.
In practice, however, this means that web hosts (and the term is broadly interpreted, meaning sites like YouTube, Twitter and Google count) are forced to develop a hair-trigger over claims of copyright infringement, assuming guilt and asking the accused to prove their innocence.
As such, a very easy way to remove something from the internet is to accuse its creator of infringing copyright. Worse, the potential downside of such a false claim is minimal: the accused would have to first file a counterclaim, proving they own the copyright; then file a private lawsuit, and prove material damage; and then track down the offending party to actually recover any monies granted by the court.
That doesn’t happen all that often.
But in recent years, big web companies have started funding lawsuits themselves, to fill the gap in the law and tilt the scales a bit further in favour of content creators wrongly accused.
Oliver Hotham is one beneficiary of that change. In 2013, the journalist posted an interview with “Straight Pride UK”, a homophobic group that expressed support for anti-gay polices in Russia. Seemingly embarrassed by their own statements, Straight Pride UK then filed a takedown request with Hotham’s blog host, WordPress.com, claiming that they owned the copyright to the answers they gave Hotham, and they had not intended the text to be published. “Straight Pride UK thought as he was a student that we would add fun to it, dress it up and make him feel like a reporter by adding ‘press release’ to the document,” the group’s spokesman, who went by the name “Peter Sidorove”, told the Guardian at the time.
Automattic, the parent company of WordPress.com, called the takedown request “censorship using the DMCA”, and vowed to fight it. Eventually, Hotham and Automattic were victorious, with a Californian judge granting over $20,000 in damages, but it was a hollow victory: Sidorove and Straight Pride UK had disappeared off the face of the earth, leaving little chance of the money being paid out.
In November, YouTube announced a similar plan, to “offer legal support to a handful of videos that we believe represent clear fair uses which have been subject to DMCA takedowns”.
“We’re doing this because we recognise that creators can be intimidated by the DMCA’s counter notification process, and the potential for litigation that comes with it,” Fred von Lohmann, Google’s copyright legal director, wrote.
But the company can’t offer legal support for every video on YouTube, nor even every video with an obvious case. And when it comes to takedown requests for Google Search, the numbers are staggering: the company received 88m copyright takedowns in the last month. Despite that, a Google spokesperson said that “we use a variety of techniques to try to identify [fraudulent] claims, and when we do identify possible fraud, we push back very strongly against the claim. Indeed, we do this for millions of URLs every year.”
Google is aware of cases like Narey’s, and is looking at how to improve fraud detection, but there’s a limit to what it can do in general. The scale is too large for it to take the sort of personal approach that Automattic did with Hotham’s case, and ultimately the law doesn’t allow for it to hit back against fraudulent claims without some involvement of the accused – which, technically, was Mumsnet, not Narey. And while Mumsnet was offered the chance to file a counterclaim, the forum couldn’t, because it too couldn’t be certain the claim actually was fraudulent.
For Narey, it’s a bit late. “For the law governing the internet to allow decisions regarding my integrity to be taken without any investigation at all seems shocking,” she says. “I have no ambition other than to bring our experience to public attention.”