Techdirt: Is Complying With A Cease And Desist An Automatic Admission Of Guilt?

These days, any time anyone sees something online about themselves or their company that they don't like, the first thing they often do is have their lawyers send off a cease-and-desist nastygram. If you're in the online content business, it's hard not to get one sooner or later. They can look pretty scary the first few times you get one. However, cease-and-desists mean pretty much nothing. They're just a lawyer trying to scare you with the threat of a lawsuit. They include all sorts of scary language, and often have demands and timeframes that are impossible to meet (we once got one that was sent to the wrong address and referenced an email they had supposedly sent to an email address that doesn't exist -- by the time we got it, the date to meet their demands was already a month in the past). It's often a silly tactic. In our case, most cease-and-desist letters are over completely bogus issues, or, at worst, over information where there may have been a factual error. Instead of having expensive lawyers rush out a nastygram, a simple email or comment with a "hey, you got that wrong, here's the real facts" would have worked much better. However, lawyers do what lawyers do, and so the cease and desists go out.

On the receiving end, many lawyers suggest to C&D recipients that they just take down the content immediately, whether or not the complaint has any merit. It's a way of limiting damages. However, a new court case shows that some courts are bizarrely interpreting such an action to be the equivalent of a contract that you won't put the content back up. It's almost as if they see taking down the content as an admission of guilt. In this case, that's been filed by the folks at Public Citizen, the victim of a botched Lasik surgery put up a website criticizing the doctors who performed it. They threatened to sue, and he removed a lot of the content. He later put some new content up, after determining what content he believed was legal. The doctors claim that his removal of the content was effectively a contract that he would not criticize the doctors online any further -- and he somehow broke that contract in putting up new info. A Philadelphia court agreed, and granted an injunction stopping the guy from criticizing the doctors, citing the removal of the content along with some emails between the parties. As Public Citizen notes in filing the appeal, this seems to be a violation of First Amendment rights, as the guy never expressly agreed to give up his right to free speech when he simply removed the content following a legal threat.