Third Circuit affirms Dimeo v. Max — Section 230 immunity applies to forum board operator

DiMeo v. Max, No. 06-3171 2007 WL 2717865 (3rd Cir. September 19, 2007) (Not precedential)

Last year plaintiff DiMeo sued Tucker Max for defamation over some postings to the message board on Max’s site. Max successfully moved to dismiss the case, arguing that the Communications Decency Act at 47 U.S.C. §230 provided immunity against the defamation claim. [Read about the lower court’s decision.] DiMeo appealed the dismissal to the Third Circuit, but the appellate court affirmed.

Section 230 provides, in relevant part, that “[n]o provider or user 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). “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” 47 U.S.C. § 230(e)(3).

The court found that Max’s website was an interactive computer service because it enabled computer access by multiple users to a computer server. Although DiMeo alleged that Max was a publisher of the comments on the website, he did not allege that Max authored the comments, or that he was an information content provider. So the court determined that the website posts were information furnished by third party information content providers and the requirements of § 230 immunity were satisfied.

The court compared this case to an earlier Third Circuit decision, Green v. America Online, 318 F.3d 465, 471 (3d Cir.2003) in which it used §230 to find America Online immune from tort liability stemming from anonymous messages posted in chat rooms.

And although DiMeo argued on appeal that Max was in fact an information content provider because he solicited and encouraged members of the messageboard community to engage in defamatory conduct or was otherwise partially responsible for the conduct, the court found that the complaint was devoid of any such allegations.

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