CDA 230

Citing CDA 230, Court Dismisses Defamation Suit Against Wikimedia Foundation

Sam Bayard — Wed, 02 Jul 2008 13:46:16 -0400

News reports (here, here) indicate that New Jersey Superior Court Judge Jamie S. Perri dismissed Barbara Bauer's defamation lawsuit against the Wikimedia Foundation yesterday. In what appears to have been an oral ruling from the bench, the court relied on section 230 of the Communications Decency Act (CDA 230), which protects providers and users of interactive computer services from state-law tort liability for publishing the statements of third parties, to dismiss Bauer's claims. (For more on CDA 230, see our Primer on Immunity and Liability for Third-Party Content Under Section 230 of the Communications Decency Act).

According to court documents, the dispute revolves around statements made on a large number of websites and blogs describing Bauer as being among the "20 Worst Literary Agents" and claiming that she has "no . . . significant track record of sales to commercial (advance paying) publishers." With regard to Wikimedia, the complaint alleged that Wikipedia published an entry stating that Bauer was "The Dumbest of the Twenty Worst" literary agents and that she has "no documented sales at all." Although Wikipedia initially declined to remove the material (at least according to the complaint), a Wikinews article indicates that "Bauer's Wikipedia article was deleted some time during the course of the proceedings, along with the edit history of her article and its talk page as a 'courtesy.'"

The court's conclusion that CDA 230 barred Bauer's claim is not terribly surprising because she did not make concrete factual allegations suggesting that anyone other than an ordinary, third-party Wikipedia user posted the allegedly defamatory statements. There are some potentially tricky issues that arise in applying CDA 230 to Wikimedia's operating model, at least in the hypothetical case where a relatively high-level admin or sysop creates the offending content. Ken S. Meyers does an excellent job of examining these issues in his article, Wikimmunity: Fitting the Communications Decency Act to Wikipedia, 20 Harv. J. L. & Tech. 163 (2006). In the lion's share of cases, like this one, however, there should be no question that Wikipedia is entitled to CDA 230 immunity for statements posted by users.

The court only dismissed the claims against Wikimedia, leaving ninenteen individuals and the Science Fiction and Fantasy Writers of America still in the case. For more information and links to court documents, see our database entry, Bauer v. Wikimedia.

Lawyer Attempts End Run Around CDA 230, Finds a Stronger Defense Than He Expected

David Ardia — Fri, 27 Jun 2008 15:48:32 -0400

Following on the heels of a Virginia lawyer being sanctioned for improperly using a subpoena to silence a critic, we hear about a lawyer in California who is threatening to use a meritless lawsuit to force Julia Forte, who runs a forum for consumer complaints about telemarketers, to remove user-submitted comments that are critical of his client.

Paul Alan Levy at the Public Citizen Litigation Group, which represents Forte, has the story:

In a recent series of demands, a purveyor of “nutraceuticals” called mynutritionstore.com threatened to sue Julia Forte over consumer criticisms appearing on her web site 800notes.com, a forum for identification and discussion of telemarketers based on their phone numbers. (The specific dispute is summarized here) My Nutrition Store’s expressed concern was that the comments about it show up in Google searches.

When Forte replied by citing her protection under the Communications Decency Act, 47 U.S.C. § 230, which generally immunizes hosts of discussion sites against suit based on what consumers say on their sites, mynutritionstore’s lawyer, Thomas Georgianna, of the law firm of Horwitz & Cron, had what he no doubt thought was an ingenious response – if he couldn’t sue on the merits, he could sue the anonymous commenters, join the web host as a “necessary party,” seek a preliminary injunction, and thus force the web host to spend money on lawyers, driving up its costs. He apparently hoped that the threat of such expenses would drive Forte to comply with his demands.

Not surprising, Paul can't sit idly by while a lawyer, however creative, attempts to circumvent the protections in -- and policies behind -- section 230 of the Communications Decency Act (CDA 230), which clearly immunizes Forte from liability for the comments of her users. In a response letter to Mynutritionstore.com's lawyer Thomas Georgianna, which he published on Public Citizen's Consumer Law & Policy Blog, Paul warns that bringing Forte into the suit for the purpose of running up her costs, even though she cannot be held liable, would constitute an abuse of process and likely result in an award of fees under the California anti-SLAPP statute.

I am not sure what Georgianna and his client thought was going to happen when they devised their strategy to scrub the Internet clean of comments critical of Mynutritionstore.com, but I highly doubt they expected a three-page response laying out the substantial financial risks they were likely to face if they acted on their legal threat.

As important as CDA 230 is, however, these types of threats highlight that the statute's protections are effective only to the extent site operators and their lawyers know about them. The fact of the matter is that most website operators don't have the knowledge or the resources to stand up to lawyers who threaten litigation if they don't comply with a demand to take material down.

When a lawyer who should know better threatens to make it expensive for a website operator to extricate itself from a lawsuit in which it has no liability in the first place, it undermines not just CDA 230, but our legal system generally.

MySpace Wins Important CDA 230 Case in Fifth Circuit

Sam Bayard — Mon, 19 May 2008 14:09:44 -0400

Last Friday, the United States Court of Appeals for the Fifth Circuit affirmed the dismissal of negligence claims brought against MySpace by the family of a teenage girl who used the popular social networking site to communicate with and arrange to meet a nineteen-year-0ld boy who sexually assaulted her. The district court held that section 230 of the Communications Decency Act ("CDA 230") barred the teen's claims based on MySpace's alleged failure to take basic safety measures to prevent sexual predators from communicating with minors on the site. See Doe v. MySpace, 474 F.Supp.2d 843 (W.D. Tex. 2007). Agreeing with the district court, the Court of Appeals concluded that the plaintiffs' claims, while ostensibly focusing on website safety, were essentially based on publication of third-party content and were thus defeated by CDA 230:

Their claims are barred by the CDA, notwithstanding their assertion that they only seek to hold MySpace liable for its failure to implement measures that would have prevented Julie Doe from communicating with Solis. Their allegations are merely another way of claiming that MySpace was liable for publishing the communications and they speak to MySpace's role as a publisher of online third-party-generated content.

Eric Goldman says that the Fifth Circuit "clearly got it right." Now I almost never disagree with Professor Goldman, especially when it comes to a defense win on CDA 230 grounds, but one could argue that this case takes CDA 230 too far. As Professor John Palfrey pointed out recently in an internal Berkman Center email exchange, MySpace is a powerful corporate intermediary that has broad ability to control the networked public space it makes available to minors and adults alike, and it doesn't necessarily serve any of the congressional objectives behind CDA 230 to automatically let the company off the hook under the circumstances. That said, I understand the opposing view that recognizing an exception for negligence or failure-to-protect-type claims would give creative plaintiffs the opportunity to plead around CDA 230, and that it would be difficult to draw the line between a genuine safety claim and a speech-masquerading-as-safety claim. But, at least to my mind, this case falls on the genuine side of the line.

For background on the case and links to court documents, see our database entry, Doe v. MySpace.

Roommates.com - Just How Big A Hole Did the Ninth Circuit Poke in CDA 230?

Sam Bayard — Fri, 04 Apr 2008 15:30:40 -0400

By now you've heard that the Ninth Circuit, sitting en banc, reaffirmed the previous Roommates.com decision. There's lots of excellent coverage out there -- some notable examples include the Online Liability Blog, Info/Law, Internet Cases, and Eric Goldman's Law & Technology Blog. The new decision, written by Judge Kozinski, may have exploded forever the longstanding assumption (among Internet lawyers, at least) that website operators would always be immune under section 230 of the Communications Decency Act (CDA 230) for publishing and organizing content provided by their users, so long as the underlying claim didn't involve intellectual property, federal criminal law, or the Electronic Communications Privacy Act. Nevertheless, we can read the case narrowly, and its impact could be inconsequential if limited to its facts. Unfortunately, aspects of the opinion make a more expansive reading possible.

Some background: Roommates.com is a website that helps match people looking for a place to live with people who've got space to rent. Before users can search or post listings, they must create a profile by answering a number of questions. According to the majority opinion, users must specify, using drop-down menus, information about their gender, sexual orientation, and whether they will bring children to a household. They also must provide information about their preferences in roommates with regard to the same three criteria. In addition, the registration interface encourages users to provide "Additional Comments" about themselves and their desired roommate in an open-ended fill-in-the-blank form. The website then publishes all this information on the user's profile page and uses it to channel subscribers toward listings with compatible preferences, including through a search function. Two advocacy groups groups sued Roommates, arguing that these practices violate the Fair Housing Act and California housing discrimination law. Roommates invoked CDA 230 as a defense.

The decision has three holdings: (1) CDA 230 does not bar the claim that Roommates violated the Fair Housing Act by asking questions about gender, sexual orientation, and children during the registration process; (2) CDA 230 does not bar the claim that Roommates violated the Fair Housing Act by publishing answers created using its pull-down menus and by providing search functionality and email notices based on this information; and (3) CDA 230 bars a Fair Housing Act claim based on the "Additional Comments" provided by users.

The first and the third holdings are not terribly controversial. For holding #1, if we assume for the sake of argument that asking certain questions violates the law, asking them is the website's own act, not the user's. Maybe I'm missing something, but this seems straightforward. Holding #3 is consistent with the Seventh Circuit's recent decision in Chicago Lawyers' Committee for Civil Rights v. Craigslist, Inc., 2008 WL 681168 (7th Cir. Mar. 14, 2008), which held that CDA 230 barred Fair Housing Act claims against craigslist for posting the discriminatory notices of its users. A craigslist user, much like a Roommates.com user filling out the "Additional Comments" section, has complete discretion about what to place in his or her notice; there is no specific prompting or encouragement to indicate a discriminatory preference.

The harder issues revolve around holding #2. With regard to publishing user profiles, the court held that Roommates was responsible for user content because it (a) required subscribers to provide allegedly unlawful information as a condition of accessing its service; and (b) provided a limited set of pre-populated answers. Fair Housing Council v. Roommates.com, LLC, slip op. at 3458 (9th Cir. Apr. 3, 2008). With respect to its search and email functions, the court held that Roommates lost CDA 230 immunity by designing its system to use allegedly unlawful criteria to channel information to particular users and forcing users to participate in the discriminatory process. Id. at 3461.

If Judge Kozinski had stopped there, this case would not have made much of a dent in CDA 230. For sure, it's a new thing for a website operator to face liability for content chosen by a user from a pull-down menu, and this result is at least facially inconsistent with the Ninth's Circuit's own Carafano v. Metrosplash.com, 339 F.3d 1119 (9th Cir. 2003), which Judge Kozinski re-interpreted, and some district court cases, like Whitney Information Network, Inc. v. Xcentric Ventures, LLC, slip op., at 21-23 (M.D. Fla. Feb. 15, 2008). But, if you narrow this case to its facts, it is relatively unremarkable and easy to distinguish from other cases. Here, Roommates forced its users to answer allegedly illegal questions, provided only allegedly unlawful answer choices, and then imposed the allegedly unlawful criteria on its users through searches and email notifications. We're not likely to see this set of facts ever again. (Well, duh, especially not now.)

But unfortunately the court injected extra verbiage into its opinion that makes its precise meaning uncertain. First, the court created a brand new defintion for the word "development" in CDA 230 ("The term 'information content provider' means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.") It held that the word "development" refers "not merely to augmenting the content generally, but materially contributing to its alleged unlawfulness." Roommates.com, slip op. at 3462. The court does a good job of giving some examples to help cabin this potentially expansive phrase, see id. at 3464, but it's awfully abstract. I, for one, am still scratching my head over it.

Second, the court uses words like "encourage," "solicit," and "induce" in a loose and imprecise manner throughout the opinion and suggests that such actions may be sufficient to strip a website operator of CDA 230 immunity. See, e.g., id. at 3468, 3470 (distinguishing Carafano because the website did nothing to "encourage defamation or to make defamation easier"); id. at 3470 n.33 (noting that craigslist does not "induce" anyone to post any particular listing or express a preference for discrimination); id. at 3471 n.33 (distinguishing Green v. America Online because there was no allegation that AOL "solicited the content, encouraged users to post harmful content or otherwise had any involvement whatsoever with the harmful content"). The court's final "clear message" to website operators certainly makes it look like "encourag[ing] illegal content" is sufficient to lose immunity, although Roommates allegedly did much more than that. Will this dicta guide future cases? One would rather not have to ask.

Third, the court also peppered its discussion with references to "passive" websites, as if passivity were the touchstone for CDA 230 immunity. Eric Goldman writes:

We had thought 230 changed that paradigm and eliminated any differences in legal treatment between passive conduits and active content managers. Unfortunately, this opinion raises questions about that. The majority opinion uses the term "passive" 7 times in its opinion, each time implying that passivity contributes to the immunization.

Yet, as Goldman points out, the court also acknowledges (as it must) that exercising traditional editorial functions does not strip a website of protection. So, we are left wondering what exactly "passive" means. I'm sure future plaintiffs' lawyers will come up with creative definitions.

Given all this extra language, and especially the final admonishment not to "encourage illegal content," websites like Don'tDateHimGirl.com and Juicy Campus have a lot more to be concerned about now than they did two days ago. In any event, the opinion is complex, and there's a lot to digest. In the end, it may be that Judge Kozinski was justified in striving to formulate a more generally applicable standard for deciding when website operators cross the line into liability. CDA 230 may after all need to shed some of its certainty, which sometimes comes at the price of absurdity or injustice.

N.H. Court Holds Right of Publicity Claim Not Barred by Communications Decency Act

David Ardia — Fri, 28 Mar 2008 15:31:39 -0400

In what appears to be the first case of its kind, a federal court in New Hampshire has ruled that the immunity provisions in section 230 of the Communications Decency Act (CDA 230) do not bar a state law claim for a violation of a person's "right of publicity." In so holding, the court expressly disagreed with the Ninth Circuit's decision in Perfect 10 v. CCBill LLC, which held that CDA 230 exempts only federal intellectual property law claims from its protections.

The case involves the typically disturbing facts that often arise in the CDA 230 context. The plaintiff, proceeding pseudonymously, sued defendant Friendfinder Network, which operates a number of websites, including “AdultFriendFinder.com” that bills itself as “the World’s Largest SEX and SWINGER Personal Community.” To participate, users register by entering a variety of personal information, creating online profiles that can be viewed by other members of the community.

In June 2005, a user created a profile with the name “petra03755” and stated that she was a separated 40-year old woman in New Hampshire who was seeking “Men or Women for Erotic Chat/E-mail/Phone Fantasies and Discreet Relationship.” The profile also included biographical data, such as birth date, height, build, and hair and eye color, and a nude photograph.

The plaintiff alleges she had nothing to do with creating the profile and that the photograph does not depict her. Nevertheless, she claims that the biographical information and photo reasonably identified her as “petra03755” to people in her community. Her complaint raises eight claims: “Invasion of Property/Intellectual Property Rights”; Defamation; “Intentional/Negligent/Reckless Conduct”; “Dangerous Instrumentality/Product”; Intentional infliction of emotional distress; Violation of the New Hampshire Consumer Protection Act; False designations in violation of the Lanham Act; and “Willful and Wanton Conduct.”

In his order partially dismissing the case, Judge Joseph Laplante held that all of plaintiff's claims -- other than her right of publicity claim -- were barred by CDA 230. The fact that the judge dismissed seven of the plaintiff's eight claims isn't surprising, given CDA 230's broad scope. What is surprising, however, are the conclusions the judge reached in holding that CDA 230 does not bar her state law right of publicity claim.

First, Judge Laplante concluded that state law intellectual property claims are exempt from the scope of CDA 230’s immunity provisions, citing Almeida v. Amazon.com, Inc., 456 F.3d 1316, 1324 (11th Cir. 2006) and Gucci Am., Inc. v. Hall & Assocs., 135 F. Supp. 2d 409, 413 (S.D.N.Y. 2001). In a rather lengthy discussion of the statutory language, the court reasoned that Congress could have expressly limited the IP exception to federal claims, but chose not to and therefore state law IP claims are also exempt from CDA 230's protections.

This conclusion -- that CDA 230 does not apply to state IP claims -- is in direct conflict with the Ninth Circuit's decision in Perfect 10, Inc. v. CC Bill, LLC, 488 F.3d 1102 (9th Cir. 2007). In Perfect 10, the court concluded that CDA 230 immunized state intellectual property claims, noting:

The CDA does not contain an express definition of “intellectual property,” and there are many types of claims in both state and federal law which may-or may not-be characterized as “intellectual property” claims. While the scope of federal intellectual property law is relatively well-established, state laws protecting “intellectual property,” however defined, are by no means uniform. Such laws may bear various names, provide for varying causes of action and remedies, and have varying purposes and policy goals. Because material on a website may be viewed across the Internet, and thus in more than one state at a time, permitting the reach of any particular state's definition of intellectual property to dictate the contours of this federal immunity would be contrary to Congress's expressed goal of insulating the development of the Internet from the various state-law regimes.

Second, Judge Laplante concluded that the plaintiff's right of publicity claim was a state law intellectual property claim and thus exempt from CDA 230's coverage. Whether a right of publicity claim is actually an intellectual property claim or merely a privacy claim -- which would not be exempt from CDA 230's coverage -- is still an open question.

Courts first began to recognize a right of publicity claim after Samuel Warren and Louis Brandeis published an article in the Harvard Law Review in 1890 entitled "The Right to Privacy." In the article, Warren and Brandeis expressed concern over the increasingly sensationalist press that was "overstepping in every direction the obvious bounds of propriety and decency," and noted that various technological developments - particularly "instantaneous photography" - posed a grave threat to privacy. They argued that the law should recognize the "right to be let alone," at least with respect to matters that were outside the public interest. Many states now have adopted either by statute or common law the privacy torts Warren and Brandeis outlined.

The right of publicity varies widely from state to state, but as defined in the Restatement (Second) of Torts, it subjects to liability anyone "who appropriates to his own use or benefit the name or likeness of another." The first case to recognize such a claim involved the unauthorized use of a private plaintiff's name and picture in an advertisement for life insurance. In that case, the Georgia Supreme Court reasoned that "the body of a person cannot be put on exhibition . . . without his consent. The right of one to exhibit himself to the public at all proper times, in all proper places, and in a proper manner is embraced within the right of personal liberty." Pavesich v. New England Life Ins. Co., 50 S.E. 68, 70 (Ga. 1905).

Judge Laplante didn't discuss the genesis of a right of publicity claim and spent little time examining whether the plaintiff's claim properly fit the description of "a law pertaining to intellectual property" that CDA 230 exempts from its coverage.

It will be interesting to see how future plaintiffs use this decision to craft creative legal claims that seek to get around CDA 230's immunity provisions.

New Jersey Prosecutors Set Sights on JuicyCampus

Sam Bayard — Fri, 21 Mar 2008 12:41:26 -0400

New Jersey prosecutors have subpoenaed the controversial gossip site JuicyCampus as part of an investigation into whether the site is violating the New Jersey Consumer Fraud Act. Reports (here, here, and here) indicate that prosecutors believe that the website may be running afoul of the law by suggesting in its Terms & Conditions that it does not allow the posting of offensive material but providing no enforcement of that rule or way for users to report objectionable content. (New Jersey authorities also subpoenaed AdBrite and Google for information about how JuicyCampus represented itself to these advertising services.) Assuming the investigation moves forward, this case is sure to be a flashpoint for further debate about section 230 of the Communications Decency Act (CDA 230).

CDA 230 protects providers and users of "interactive computer services" from liability for the statements of third parties. As the dismissal of the recent iBrattleboro case illustrates, this means that your average website operator or blogger can publish user comments without fear of being sued for defamation, invasion of privacy, and other civil wrongs (other than intellectual property claims). This also means that JuicyCampus generally is immune from liability for statements posted by its users. From the International Herald Tribune:

"Legally, Juicy Campus is fully, absolutely immune, no matter what it runs on its site from users, just like AOL is not responsible for nasty comments in its AOL chat rooms," said Michael Fertik, a graduate of Harvard Law School and the founder of reputationdefender.com, a service that helps clients remove defamatory material about themselves from the Internet.

Note that CDA 230 applies to state criminal charges as well as civil wrongs, so it could protect JuicyCampus from claims related to its users' content if New Jersey ultimately brings a case. The state would undoubtedly argue that the problem is what the website itself says in its Terms & Conditions, not what its users say. This argument might work, but it looks like a rhetorical flourish with the legal claim still directed towards JuicyCampus in its publishing, editorial, and screening capacities, which is CDA 230 heartland. See Doe v. MySpace, 474 F.Supp.2d 843, 849-50 (W.D. Tex. 2007).

Whether it is a good thing for CDA 230 to protect JuicyCampus is entirely debatable. As I've argued before, CDA 230 has provided vital breathing space for the development and operation of the interactive Internet, but it also leads to perverse and unjust results in particular cases (which generally is a weak point of legal rules versus legal standards). JuicyCampus is a good example of where CDA 230 leads to a questionable result, and it's similar to AutoAdmit in that regard. The site flaunts its capacity for the scandalous ("Always Anonymous . . . Always Juicy . . . "), and its Privacy & Tracking Policy assures users that their identities cannot be traced in a way that is above-and-beyond the call of duty. While there is nothing explicit, the whole enterprise exudes an undercurrent of encouragement or inducement to libel. It is arguably unjust that a website operator can enjoy the protection of CDA 230 while (1) building a whole business around people saying nasty things about others, and (2) affirmatively choosing not to track user information that would make it possible for an injured person to go after the person directly responsible.

This raises the question whether we should craft a Grokster-style inducement exception to CDA 230, whether through the courts (as Judge Kozinski tried to do in the Roommates.com case with his harassthem.com hypothetical) or through amendment of the statute by Congress. While such an exception might be intuitively appealing, it also raises thorny questions. What would the standard be? As Eric Goldman pointed out on the CyberProf listserv this week, "every website that publishes user-submitted content will foreseeably attract defamatory submissions," so surely foreseeability cannot form a significant part of the test. What about deliberately refusing to remove content when someone complains? OK . . . but one of the greatest benefits of CDA 230 is that it frees website operators from having to make constant judgment calls about whether or not particular statements are defamatory. If we required websites to make these calls, the knee-jerk reaction would be to take down "gray area" material that might be important, socially valuable discussion.

Nevertheless, I'm not wholly pessimistic about the prospects for creating a new immunity standard. There does seem to be a line that JuicyCampus has crossed in terms of encouraging its users to commit libel, and it's not beyond human reason to identify that line (although I'm not going to hazard it now). And Congress could conceivably condition immunity on creating and retaining logs that would help tie particular IP addresses to specific comments. I'm sure there are other possible solutions.

One final point: what's with the New Jersey prosecutors' crazy consumer fraud theory? The JuicyCampus Terms & Conditions do indeed require users to agree not to post material that is "unlawful, threatening, abusive, tortious, defamatory, obscene, libelous, or invasive of another's privacy," but it's hard to see how this is a representation on the part of the website about, well, anything. The Terms require a user not to post bad content, but also give JuicyCampus the "sole discretion" to decide whether or not to do anything about it:

You acknowledge that JuicyCampus does not pre-screen Content, but agree that JuicyCampus shall have the right (but not the obligation) to access, re-arrange, modify and remove or restrict access to any Content on the Site in its sole discretion and without notice or compensation. Without limiting the foregoing, JuicyCampus shall have the right to access and remove or restrict access to any Content that violates this Agreement or that JuicyCampus believes is otherwise objectionable, in its sole discretion.

Moreover, I'm having trouble identifying the consumers who are being misled by these Terms. Are they the victims of defamation who have never visited the site or read the Terms? Are they the site users who agreed to abide by the Terms but posted nasty stuff anyway? And, perhaps most saliently, are these allegedly misled consumers brain dead? "Always Anonymous . . . Always Juicy . . . "? Give me a break.

iBrattleboro Victorious, Court Dismisses Libel Lawsuit Under Section 230 of Communications Decency Act

David Ardia — Thu, 20 Mar 2008 11:13:12 -0400

A Vermont judge has dismissed the libel lawsuit filed against Chris Grotke and Lise LePage, co-founders and owners of iBrattleboro.com, a widely acclaimed community journalism site based in Brattleboro, Vermont, ruling that Grotke and LePage are immune from liability under section 230 of the Communications Decency Act ("CDA 230").

The lawsuit, which was filed by Effie Mayhew on November 16, 2007, alleges that David Dunn, the former executive director of Rescue Inc., an emergency medical services organization where Mayhew works as a volunteer, libeled her in a comment on the site. While Mayhew's complaint didn't make any allegations that Grotke or LePage authored the allegedly defamatory statements, her lawyer (as well as several commentators in Vermont) asserted that iBrattleboro.com should be liable because the site admins failed to edit or remove Dunn's comment.

As I mentioned in several previous posts, Grotke and LePage are clearly shielded from liability under CDA 230, which does not require that website operators remove user-submitted material even if they have been notified that the information is defamatory. See Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997). Moreover, immunity exists if website operators edit comments (so long as the edits do not materially change the meaning of the statement) or otherwise exercise discretion in selecting which comments to post or remove. See, e.g., Donato v. Moldow, 865 A.2d 711 (N.J. Super. Ct. 2005).

This is a significant victory for community journalism sites, which often rely heavily on user-submitted content. Like many such sites, iBrattleboro edits and removes user comments in order to create "a forum for information-sharing, discussion and debate in a respectful and friendly atmosphere." This is the quintessential activity that CDA 230 was meant to immunize, and courts have consistently held that these activities do not make an interactive computer service liable for defamatory material submitted by others that it does publish on its site.

In his order dismissing the suit against Grotke and LePage, Superior Court Judge David Howard wrote:

[T]he Court takes judicial notice of the fact that iBrattleboro is an interactive computer service as defined by the CDA. . . . The gravamen of Plaintiff's complaint is that Defendant Dunn posted statements of his own making on the iBrattleboro website. Therefore, the Court also finds that Defendant Dunn, as alleged, is an "information content provider" because he is a "person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service." . . . Because Plaintiff herein seeks to impose liability for defamation on Defendants for publishing information on their site admittedly provided by Defendant Dunn, the Court concludes that Defendants are immune and the claim barred under the CDA.

You can read more on the decision in the Rutland Herald.

Of course, the case can continue against David Dunn, who is the author of the allegedly defamatory comment, as he does not have a basis for immunity under CDA 230. In addition, a countersuit by Dunn against Mayhew is still pending. You can follow future developments in the case by going to the CMLP database entry: Mayhew v. Dunn.

Anthony Ciolli, former AutoAdmit Defendant, Sues Everyone

Sam Bayard — Wed, 05 Mar 2008 16:46:56 -0500

Breaking news from Above the Law: Anthony Ciolli, former defendant in the controversial AutoAdmit case, has filed a lawsuit in Pennsylvania state court against the two plaintiffs in that case, their lawyers, ReputationDefender and one of its employees, and the shadowy "T14 Talent." He alleges wrongful initiation of civil proceedings, abuse of process, libel, slander, false light invasion of privacy, tortious interference with contract, and unauthorized use of name or likeness. It looks like Ciolli has outed one of the pseudonymous defendants in the AutoAdmit case -- "pauliewalnuts."

Here's the complaint -- we're still digesting it.

Update: I didn't mean to be snarky about this lawsuit. Assuming that his allegations are true, I have a lot of sympathy for Ciolli, and he appears to have some actionable claims. Marc Randazza, his attorney in the AutoAdmit case, has a thoughtful post on the new lawsuit.

MySpace Sued Over Teen Suicide

Sam Bayard — Tue, 26 Feb 2008 10:14:05 -0500

No, this isn't about the Megan Meier suicide debacle. It's about another, older but equally tragic episode. The family of a fifteen-year-old girl who committed suicide in 2006 after a sexual relationship with a twenty-seven-year-old man she met on MySpace is suing the popular social networking site for negligence and violation of products liability law (i.e., for creating and distributing a defective product). The crux of the complaint is that MySpace negligently "provided an unprotected social networking site absent of any legitimate means of preventing contact bretween sexual predators and minors." Compl. ¶ 1. The family filed suit against MySpace in state court in Texas in December 2007, also naming as a defendant Kiley Ryan Bowers, the man who allegedly had a relationship with the deceased. Wired has a good article with more details.

From a legal perspective, this case is almost indistinguishable from a previous case filed against MySpace in federal court in Texas. In that case, the court held that CDA 230 barred legal claims based on MySpace's "negligent failure to take reasonable safety measures to keep young children off of its site." Doe v. MySpace, 474 F.Supp.2d 843, 849-50 (W.D. Tex. 2007) (Doe v. MySpace I). At first blush, this might seem like an odd result because CDA 230 primarily applies to publication torts -- it says that no provider of an interactive computer service "shall be treated as the publisher or speaker of any information provided by another information content provider." 47 U.S.C. § 230(c)(1). Needless to say, negligence is not commonly understood as a publication claim.

The Doe v. MySpace I court held that the plaintiff's claims, while styled as negligence claims, were essentially based on publication of third-party content:

It is quite obvious that the underlying basis of Plaintiffs' claims is that, through postings on MySpace, [the adult male] and the [minor female] met and exchanged personal information which eventually led to an in-person meeting and the sexual assault of [the minor female]. If MySpace had not published communications between [them], including personal contact information, Plaintiffs assert they never would have met and the sexual assault never would have occurred. No matter how arfully Plaintiffs seek to plead their claims, the Court views [them] as directed toward MySpace in its publishing, editorial, and/or screening capacities. Therefore . . . Defendants are entitled to immunity under the CDA . . . .

Doe v. MySpace I, 474 F. Supp. 2d at 849-50. It could be hard for the plaintiffs in the new case (Doe v. MySpace II) to overcome this reasoning. But the plaintiffs' attorney, who incidentally was also one of the plaintiff's attorneys in Doe v. MySpace I, is doing his best to make this case look different. In anticipation of the CDA 230 issue, the complaint states:

Plaintiffs bring no claims that involve publishing, altering, or withdrawing content provided by third parties. Plaintiffs simply complain of MySpace's failure to do even the bare minimum to reduce the threat of these attacks: implement reasonable and practicable safety measures that would protect MySpace's most vulnerable users from a terrible threat that MySpace knew was present.

Compl. ¶ 11. It's hard to see how this legal argumentation in the complaint can distinghish the new lawsuit from Doe v. MySpace I. In other paragraphs, the complaint alleges that Bowers "communicated with [the minor female] and ultimately orchestrated his sexual assault on her through the MySpace.com website" and "continued to contact her through MySpace.com until she ultimately committed suicide . . . due to extreme depression as a result of the relationship fostered by MySpace." Compl. ¶ 8. This looks a whole lot like a claim "directed toward MySpace in its publishing, editorial, and/or screening capacities."

Perhaps the plaintiffs' attorney was hoping that a state court, as opposed to a federal court, would be more amenable to his argument. He is probably not pleased that Bowers has filed a motion to remove the case to federal court.

This will be an interesting case to watch because its fact patterns raises important questions about just how far CDA 230 can go in insulating websites from liability and whether pushing those limits jives with congressional intent and/or good policy judgment.

Goodale TV on CDA 230 and AutoAdmit

CMLP Staff — Mon, 04 Feb 2008 18:22:03 -0500

Sam Bayard blogged previously about James Goodale's article on CDA 230 and the highly publicized AutoAdmit case. In the article, Goodale argues that CDA 230, the federal law that shields providers of "interactive computer service[s]" from liability for defamation and other torts for publishing the statements of third parties, should be amended to impose liability in cases where a website operator "knowingly causes defamation by refusing to take down libelous posts."

On Sunday, on his show "Digital Age," Goodale moderated a discussion between Michael Fertik, the CEO of ReputationDefender.com, and Beth Simone Noveck, a professor at New York Law School, about CDA 230, anonymity, and the AutoAdmit case.

You can also watch it on Google Video.

(Note: James Goodale is on the board of advisors for the CMLP.)