My absolutely unprofessional, non-binding, thoughts on the C&D, which should in no way be construed as legal advice

[Note: This entry has been edited from its original publication. See here for details.]

One of the anonymous commenters has pointed me at a cached copy of the C&D notice, which is evidently quite gone from the active web.

I am still not a lawyer, this is not real legal advice, and you should probably assume I have no idea what I'm talking about, but a cursory reading makes me rather dubious. It reads a lot like a gazillion other not-written-by-a-lawyer takedown notices sent by angry people to various parts of the internet. Most of these are unsuccessful in a legal sense, but every so often they provide people with great entertainment. The dude who runs SomethingAwful.com collects them, along with his comedic responses.

Where privacy is concerned, "the internet" is usually considered equivalent to "a giant public notice board". To the best of my knowledge, no one has any legal basis upon which to demand takedown of any information about that is part of the public record. In the US, this generally includes things like marriage licenses, divorce decrees, corporate and real estate transactions, and arrest records, among other things. As far as I know, posting this information cannot be considered 'invasion of privacy' because these records are legally required to be available to anyone who asks for them.

Also to the best of my knowledge, he has no real legal standing to demand takedown of any material he personally posted on the public internet. If you post it on a publicly-visible place like a blog comment or open forum, that's pretty much equivalent privacy-wise to writing it on a piece of paper and stapling it to a public notice board. There is really nothing you can do if someone else decides to make a copy of it, take a photo of it, or in any other way preserve what you have made public, or to share that information via word of mouth with anyone else. If you choose to leave this information public on you own site, you also have no basis upon which to demand that people not link to it.

Posting of phone numbers or physical addresses is more of a gray area. Your number and address is considered public if you're listed in the phonebook (or, now, the online equivalent) as a general rule, but posting personal info like that is considered extremely internet-rude. One of the many, many reasons people bristle when anonymous pokes their collective nose into things -- it's a breach of etiquette. It's not something I personally would do, and I haven't; I wasn't paying enough attention to the now-deceased tumblr to notice whether they had. He may have legal basis for demanding that this information be taken down if he can produce credible evidence that he or his family are indeed being harassed or receiving threats of some sort, but it would be up to a judge to grant that. I'm not exactly clear on how or even whether the rules differ when the personal information of minors is involved, nor do I know whether revealing personal information of this sort would be considered to interfere in his business dealings in any way.

I also couldn't tell you whether he would or would not be legally considered to have given up any expectation of privacy. I'd never heard the name before, but that doesn't mean he's not famous in a field with which I am not familiar. Typically I think professional performers of any real note are considered public figures, along with politicians and other people whose entire business is being out and doing things where other people can see them. Everybody gives up an expectation of privacy when out in a public place -- you generally can't sue someone or demand payment if they take your picture as you walk along a public street, for instance. It may well depend on whether he did or did not post all of the extensive blather that people have been reading. If he does take legal action, then the defendant would be legally permitted to conduct any reasonable investigation they like into the goings-on, and a search for evidence to determine whether he's telling the truth when he says he didn't write any of it would be well within the definition of reasonable.

I'm unsure who posted this letter to Blogspot in the first place. If the author posted it to the public internet himself, then the paragraph about denying the target permission to reproduce or allow others to yadda yadda yadda has no meaning, because it could not possibly be enforced. You can't demand that the recipients control all possible copies of a letter you sent them if you also stuck a copy of the letter to a lamp post in the middle of town.

Overall, it doesn't really read very much like other legal documents I've perused. Lawyers have a pretty distinctive, almost mathematical, style of writing, and things that are sent to non-lawyers are usually especially boilerplate. If a lawyer wants you to do something without a fight, he knows damn well that the best way to start out is by being as terrifyingly lawyer-y as possible. There are some parts of it that I'm reasonably sure he'd never be able to make stick, and I'll bet a lawyer would tell him that. Other parts he might have a point, but they're kind of buried. Assuming he's telling the truth about not having written any of the "Himmmm" posts, then what he probably ought to be doing is sending out polite letters requesting takedowns and save the hellfire-and-brimstone correspondence for whoever is pretending to be him and shoveling shit about Hollywood. The ultimate source of most if not all the information he's objecting to that isn't part of the public record is the poster or posters writing as "Himmmm" on CDAN.

Aside from all of this, as a practical matter it is virtually impossible to make something disappear from the internet. The above is what I know about US law, but there are a lot of other countries to which none of it applies. The EU takes privacy concerns pretty seriously, but it's not like an American attorney can force some guy to delete your posts off his chintzy message board server in Outer Elbonia. As John Gilmore once infamously said, "The Net interprets censorship as damage, and routes around it." The louder and more vociferously you complain, the more likely it is that the Streisand Effect will kick in.

[[ETA: I have not gotten anything on the topic, aside from a lot of anonymous comments on my entries. I don't know why. There is an email address attached to this blog, through which anyone who objected to my writing could contact me easily. The demand may have been directed to the tumblr rather than anyone else because, quite frankly, they were being obnoxious fucks and internet-detective-ing beyond anything most people would consider reasonable. "Hey I found his Myspace page," is one thing, but "Hey I have a complete list of his movements for the past six months, and those of his family," is entirely another. I warn you all right now that if I do get any official requests to remove this stuff, it's coming down, because it is not really interesting enough to fight over. Furthermore, if someone is in fact impersonating this dude on the internet, I will gladly hand over all the information I have on the subject, although since I'm not an expert I doubt it would hold up in court. Impersonating someone else in order to get them into buckets of trouble is Not Acceptable and I want no part of it.]]

Comments

  1. This comment has been removed by the author.

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    1. Please note: This comment vanished the first time because Blogger evidently thinks that a block paragraph about CrowdGather is unquestionably spam. I don't really think I need to say any more about that.

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    1. I am perhaps unreasonably touchy about internet detective-ry. I do a lot of research and profiling, informally for myself and for friends, and I am deeply squicked by paparazzi and other such things. I make it a point to use only rightfully public materials for my analyses. Performances, interviews/press and their own webpages/Twitter/etc for celebrities, and official evidence turned up by the investigation if I'm digging into a criminal case. I personally think that, although most of the people on the tumblr were probably pretty normal, there also a lot of contributors that went beyond what I was really comfortable reading. Hence my opinion that they were being, collectively, obnoxious fucks. My opinion is certainly not the only one, but I stand by it, much as I expect you stand by yours.

      The email address, which is findable by going back into my archives where I've posted a bunch of FAQ answers, is miss.arabella.flynn@gmail.com. I answer what email I can, but this isn't my day job, and sometimes it falls by the wayside.

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    1. Oops, that should be a reply to your reply ;)

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