The Third Rail of Journalism

05/26/2015 02:16 pm ET | Updated May 26, 2016

In politics, "The Third Rail" is a metaphor which the late House Speaker, Thomas P. "Tip" O'Neill, referred to when speaking about the perils of any attempt to alter the Social Security System. In actuality, the "third rail" refers to the extremely high voltage rail that powers trains and subways which is instantly fatal if touched. President George W. Bush once said of it, " grab ahold of that thing and you get electrified."

In journalism, to extend the metaphor, one could apply the same comparison to the First Amendment of our Constitution which has been the lasting gold standard for protecting freedom of speech.

Since the advent of the Internet Age in which we now live and, more specifically, the creation of the immensely powerful search engine, Google in 1997, times have changed. Google's search engines can index and almost instantly produce everything about everyone that has appeared in an article, broadcast or blog published on the Internet going back often more than one hundred years. As a result of that it is now increasingly evident that an American's right to privacy is in danger. How is this possible? The reason is that the way things are now, Google and the other search engines have the unbridled and unregulated power to observe, track and index everything published about you or anyone and display it on their websites in the U.S. and many countries except for those in the European Union.

Despite our laws of defamation, libel and slander, which govern the legitimate media and offer protection to individuals against malicious statements about them in the press, Google can publish anything. Google has spent millions of dollars in court to establish that it is not legally a publisher and therefore not subject to the laws of defamation regarding falsehoods in the content on their website.

Google is searched several billion times a day by people looking for information about other people and things. It is the most powerful tech company on earth. It is used so frequently that English scholars have officially accepted its company name as a verb. People "Google" people to find out about them and use the information in business, social encounters and even law enforcement. Google is clearly the most valuable tool for research ever invented. Its database is so vast that people rely on it because it's the modern age answer all research records that have come before.

Google is a wonderful creation. However, despite Google's historic contribution to the world, the fact remains that many of the links it lists on its search pages are often partially or even completely false. And when it comes to negative, defamatory or slanderous comments about people, reputations are potentially damaged or even destroyed. Part of the problem is that Google lists old information about people right next to that of the major news media's current stories. A blog often carries the same weight, prominence and therefore importance, as a story about someone that appears on NBC, ABC or CBS News. Frequently, a "Tweet" ends up in a CNN story. Even bloggers, who are not the working press, can publish highly damning stories with actual malice and fear no repercussions because they do so through Google. Those who would defame someone with reckless disregard for the truth can rent a blog spot from Google.

What's tragic is at any given moment a doctor or lawyer can be accused of malpractice and once the story appears on a search it sullies their reputation. If a politician is accused of unlawful or unethical behavior, and the allegation story breaks published on Google's Internet pages it's transmitted throughout the Internet and can never really be erased.

Even in small cities across the nation, stories are broadcast, printed or blogged about online regarding arrests made of prominent people. And the media can make mistakes or publish a story that hasn't been thoroughly vetted. Google can pick up that story from a local report and publish it and, instantaneously, it becomes a national story because the Internet has an audience of over a billion people. Celebrities and public figures make headlines and, as the old adage goes, "sell papers." Even though investigations have not had the time to take place, inevitably a rush to judgment occurs. It's human nature to believe allegations of weighty gossip. People really do tend to believe what they read, or hear.

Due to the First Amendment's free speech clause and the fact that Google has won judgments avoiding responsibility for its content, reputations can be destroyed by allegations taken from uninvestigated reports and links listed on Google. The head of a company or a celebrity or even an unknown person, can wake up in the morning, Google their own name and find out that someone has accused them of a horrible act and the accusation alone has made it around the world. Even crisis management specialists can only do so much to rectify the situation because of Google's protection.

People write millions of letters to Google for months, even years, demanding that a false and defamatory story listed in a search of their name, later proved to be factually meritless, and it is still not deleted. Some even retain lawyers who use Google's own rules, called "Terms of Service" (TOS), to demand removal of the false listing but of the tens of millions of legitimate complaints, only a handful are favorably rescinded. This is part of the reason why Google is referred to as part of the "Wild West" of the days of the Internet.

In our field of crisis management public relations there is an area of specialization known as "Search Engine Optimization" or "SEO" which has emerged in the past decade. PR firms charge a hefty retainer and hourly fees to try to offset a negative Google listing by writing stories, mostly of little or no value, in order to literally push down the story that impugns the client's integrity. This field of "SEO" has become a new kind of PR which only serves to dilute the work of legitimate media and ends up taking clients' money often under false pretenses. Google is well aware of this new SEO area of phony entries.

The simple fact is that a deliberate attack on someone can decimate their livelihood. "My reputation is crucial to my work," a prominent trial lawyer recently stated. Careers in any field of endeavor can be halted in a flash simply because an allegation said about them "goes viral." We live in a tabloid society. Gossip thrives more than ever and drives entire Internet websites such as TMZ, with its global reach and resources, where stories are issued as "breaking news" and are quickly accepted by millions of people. TMZ frequently gets a story out first and is quoted by other major media sources even though it has not been substantiated but the pressure of media competition causes the story of the allegation to become news. And TMZ is one of the most reliable sources of fast breaking news, particularly about celebrities, as its editor-in-chief, Harvey Levin, is a lawyer.

However, this situation is not the same in Europe since a year ago, in a landmark case known as Google v Costeja, a decision was handed down by the European Union's highest court, the Court of Justice of the European Union, in Luxembourg on May 13, 2014 [1], in which the Court ruled that such defamation must immediately be deleted by Google. Google's counsel notified the court of their intention to delete such libelous articles [2] and blogs.

In the U.S., Google has continued to deny the millions of claims. Some have even appealed on the basis of Google's own "Terms of Service" (TOS). The record shows that Google very rarely makes deletions based on such alleged violations. In fact, Google's administrators often request a court order before they will act and they have prevailed on legal challenges. They have won on the basis of their assertion that they are not a publisher and therefore not responsible for the content of what others write.

It's obvious that so much about life has been improved by Google, Inc. However, the fact remains that in the area of libel and slander with malice, there is an ever expanding problem which needs a clear and decisive solution.

Maybe someday you will be able to Google it.
1. Official Press Release of The Court of Justice of the European Union, ruling of May 13, 2014, Case C-131/12, Google Inc. v Agencia Española de Protección de Datos, Mario Costeja González.
2. Letter from Google, Gen. Counsel Peter Fleischer, Global Privacy Counsel, July 31, 2014.