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When a court's expungement order stipulates that all entities with related data to the case, and data collection and data reseller companies destroy any and all records related to a case; does this mean the private online person search sites must destroy all references to the cases that were expunged?

Or do I need to reach out to each of these individual “background search” sites to request that their information be updated to reflect the order?

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In all likelihood, the judge's order related to data collection and reselling is not legally enforceable. They weren't parties to the expungement action, so the judge doesn't have jurisdiction over them. And, the First Amendment protects the right to say truthful things pretty absolutely.

Arguably, if the sites provided the information without making clear that it might not be current because records were expunged or corrected, there might be a claim for negligent misrepresentation, false light, or even defamation, but I seriously doubt that even those claims would hold up.

The language in the order might cause sites to comply out of not legally justified concern, or just a desire to be accurate, even if it is not enforceable. So, it doesn't hurt to bring that information to the attention of such sites and ask them to take down the information. But, when push comes to shove, I very much doubt that you would prevail in court enforcing that order against them.

Certainly, if you do nothing, they will do nothing, because they are not psychic and have no idea that the court order related to those records has been entered. Even a valid and enforceable order directed at a party over whom a court has jurisdiction is not effective until the person ordered to comply with it has notice of the order. And, there is no system that gives sites like that notice without you taking action to inform them of an order.

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  • Thank you for the clear, eloquent and thorough response. You bring up many great points, and there is one that in particular that I’m hoping you could expand upon if you’d be so kind. “Arguably, if the sites provided the information without making it clear that it might not be current.....negligent representation” if the websites are given notice of the changes to the records, and fail to take action to properly update the background records affected by expungement, would this represent negligent representation and/or defamation. If not, what other elements would be required? – user15669 Feb 21 '18 at 18:12
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    @TonySnow The main issue in both cases would be whether the site expressly or by implication conveys the impression that the convictions have not be expunged when they actually have, through negligence in ignoring notice given, or through reckless disregard for the truth in the case of defamation. In the case of negligent misrepresentation you would also need to show actual damages caused by their particular posting. Injunctions to remove or change their site would not be available in either case, just money damages. But, if they had a suitable disclaimer that would avoid all liability. – ohwilleke Feb 21 '18 at 22:27
  • So there is no oversight or precedent, when a simple disclaimer is provided, releases all legal avenues for pursuing relief? – user15669 Mar 2 '18 at 0:58
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    @TonySnow Yes. An appropriately worded disclaimer would foreclose all legal avenues for pursuing relief. – ohwilleke Mar 2 '18 at 2:00

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