When a takedown is the wrong move

Clients almost always arrive asking for removal. It is the obvious request and it is sometimes right. But a takedown is one instrument among several, it has costs of its own, and there is a recognisable set of situations in which pursuing it makes the position worse.

When you do not own the copyright

This is the most common and most expensive error in the field.

The pattern is familiar: there is a post making false and damaging claims, and someone suggests a copyright notice as the quick route. Copyright is procedural, automated and fast, where defamation is slow and contested. The temptation is obvious.

It is also a category error. Copyright protects the expression of a work. It says nothing about whether the statements in it are true, fair, private or damaging. A notice asserts, on penalty of perjury as to authority, that you own or are authorised to act for the owner of an exclusive right in the material. Where the real grievance is reputational, that assertion is usually false.

The exposure is real in both directions:

• Under section 512(f) of the United States Code, a person who knowingly materially misrepresents that material is infringing is liable for damages, costs and attorneys’ fees. The leading case involved a company that used copyright to suppress an email archive discussing problems with its products; it paid $125,000. The claimant in that case, like the claimant in a reputational matter, had no copyright interest in the material at all.
• Under section 35B of Kenya’s Copyright Act, a false or malicious takedown notice — or counter-notice — is an offence carrying a fine of up to KES 500,000 or up to five years’ imprisonment, or both, in addition to damages. Kenya’s sanction for takedown abuse is heavier than the American one.

The ownership test is simple and should be applied before anything is drafted. Not “is this about me?” but “do I own the copyright in this specific file?”

Strong: a photograph you took, including a selfie; your own writing, artwork, video or music reposted without licence; commissioned work where the assignment is documented.

Weak or invalid: a photograph taken by someone else of you — the photographer is the author, and being in the picture confers nothing; an article or review written about you; a screenshot of your own post used for criticism or comment.

Where the ownership answer is not clean, the grievance belongs somewhere else: defamation, privacy, data protection, or a platform policy on harassment, impersonation or intimate imagery.

When the attempt will be published

Takedown notices are not private correspondence.

Major platforms forward notices to public transparency databases, and search engines publish URL-level removal data. A notice intended to bury a story can create a permanent, indexed, publicly searchable record of the attempt, attributed to the sender by name — frequently including the URL of the very page you wanted removed.

The same is true in domain disputes. A dispute-resolution decision is published permanently under the complainant’s name, and where a panel finds the complaint was brought in bad faith to deprive a legitimate registrant of a name, that finding is recorded in the decision. There is no costs sanction and no damages. There is a published, indexed judgment that you abused the procedure.

Before sending, ask: if this notice were published tomorrow alongside the content, how would that read?

When you are not prepared to litigate

The American procedure has a mechanism that catches out claimants who send notices as a bluff.

If the poster files a counter-notice, the provider must restore the material not less than 10 and not more than 14 business days later — unless the original complainant has filed an action seeking a court order. Filing suit stops the clock. Threatening to does not.

So a claimant who sends a notice they will not stand behind achieves, at best, a fortnight of removal, followed by restoration, and has publicly asserted a claim they abandoned. Meanwhile the poster now knows exactly who complained.

The corollary matters for the other side too: a counter-notice from outside the United States requires the sender to consent to the jurisdiction of a US federal court. Nobody should be advised to file one without understanding that.

When removal is not what you actually want

Several outcomes are better than deletion in the right circumstances.

A correction is worth more than a removal. Deleting a false story leaves the impression it created and no record correcting it. A published correction addresses what people who read it now believe. In Kenya, section 7A of the Defamation Act provides a statutory right of reply requiring a correction in the next possible edition, free of charge, with similar prominence — but it must be requested in writing within fourteen days, and the court may reduce damages where a claimant did not exercise it.

Geo-restriction may be sufficient. Platforms routinely restrict content in a single country in response to a local-law claim rather than removing it globally. If the harm is concentrated in one market, that may be the whole remedy — and it is far more readily obtained than global removal.

A documented record can be the point. Where litigation or a regulatory complaint is likely, an intact, preserved publication with its comments, reach and republication history is evidence. Removing it early can make the harm harder to prove.

Sometimes the right answer is to publish your own account. Not always, and rarely in the first week. But a clear, accurate, permanently available statement under your own domain outranks a great deal and answers the question a searcher is actually asking.

When it will make more noise than it silences

Attempts at suppression are themselves newsworthy, and the more prominent the person and the more aggressive the demand, the more true this is.

The calculation is not whether the takedown will succeed. It is whether the total audience for the matter after the attempt is smaller than before. For a post with negligible reach, an aggressive letter to a journalist or campaigner will almost always increase it. For a widely read publication in a market that matters, the calculation may go the other way.

This is a judgment, and it should be made explicitly, in writing, with the client — not defaulted into.

When you are aiming at the wrong layer

Effort directed at a layer that cannot help is effort wasted, and it signals inexperience to everyone watching.

• Reverse proxies and CDNs host nothing and cannot remove content they do not host. What they will do is forward your complaint to the operator and the host, and supply the host with the origin address. That makes an abuse report a discovery tool, not a removal tool.
• Registrars act on whole domains, not pages, and their ICANN obligations run to technical DNS abuse — malware, botnets, phishing, pharming and spam as a delivery mechanism. Defamatory content is not DNS abuse. ICANN’s compliance function will not compel a registrar to act on it.
• Search de-indexing is visibility management, not removal. The page stays live and reachable by direct link, remains on other engines unless separately addressed, and remains in web archives. Pursued against a hostile operator while the page is still live, it can prompt republication at a new URL, which resets the whole exercise.

The escalation ladder sets out what each layer can actually do.

When the target is true, or private, or someone else’s opinion

Three final situations where the answer is not a takedown at all.

If it is true, defamation will not remove it. The question becomes whether the publication engages privacy or data protection — accurate information can still be unlawfully published — and those routes have their own requirements and their own limits. Note in particular that Kenya’s statutory deletion right is confined to data that is false or misleading; a general right to be forgotten should not be promised.

If it is opinion, honestly held on a factual basis and on a matter of public interest, it is likely defensible however unfair it feels, and a demand for its removal will be resisted and probably published.

If it is a negative review of a product or service, criticism is generally protected. Where a review contains a false factual assertion causing pecuniary loss there may be a claim, but it is a narrow one, and businesses that pursue reviewers rarely improve their position.

The question to ask first

Before instructing anyone to send anything, answer this: if this works exactly as intended, what will the world look like?

If the answer is “the post is gone, nobody noticed, and the record is corrected”, proceed. If it is “the post is gone for two weeks, the notice is published under my name, and there is now an article about my lawyers”, the instrument is wrong — and there is almost always a better one.