“Immunity” not accurate description for 47 USC 230 protection

So says a trial court judge from Arizona.

Children of America, Inc. v. Edward Mageson, et al., CV 2007-003720, Superior Court of Maricopa County, Arizona (October 24, 2007)

Ripoffreport.com is a website where individuals can post information about companies, ostensibly to warn other consumers of unscrupulous practices or bad service. Children of America, Inc. sued Ripoffreport.com in Arizona state court for defamation. Ripoffreport.com moved to dismiss, asserting “immunity” under provisions of the Communications Decency Act at 47 U.S.C. 230, which state 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.” The court granted the motion in part and denied it in part.

Many commentators on Section 230 (including myself) have used the term “immunity” to describe the protection that the section provides. But in this case, the court eschewed this characterization, observing that it “tends to cast the applicability of the statute as an all-or-nothing question focused upon the overall character of the Defendant’s computer services.” Instead, the court held that whether Section 230 serves as a defense depends on the particular content at issue.

The plaintiffs alleged that Ripoffreport.com had edited and authored the headlines that accompanied the user generated content, and that certain headlines, standing alone, were actionable as defamatory. Because the court was constrained, at the motion to dismiss stage, to accept the allegations as true, it denied the motion as to the headlines allegedly authored by Ripoffreport.com. The motion was granted as to the content provided by third parties.

Professor Goldman also reports on this case, and points out that the court says “confidently” that Ripoffreport.com cannot face liability “for their actions in promoting the site, organizing the content, making the contents more accessible on search engines or soliciting contributions of content.” He speculates, I think interestingly, that this court was “going out of its way to reject [Judge] Kozinski’s opinion” in the Roommates.com decision.

California appellate court affirms dismissal of defamation suit against stock blogger

GTX Global Corp. v. Left, No. B192626, 2007 WL 1300065 (Cal.App. 2 Dist. May 4, 2007)

Andrew Left publishes the blog stocklemon.com, and in 2005, he made a couple of posts critical about plaintiff GTX. In turn, GTX sued Left for invasion of privacy and defamation. At the trial court level, Left moved to strike the complaint under California’s Anti-SLAPP statute [Code of Civil Procedure section 425.16], and the court threw out the case. GTX sought review with the California Court of Appeal, which affirmed the trial court’s dismissal.

When a defendant files an Anti-SLAPP motion in California, the court first considers whether the plaintiff’s cause of action arises from any act of the defendant’s taken in furtherance of that defendant’s right of petition or free speech. If the court finds the defendant has made the threshold showing, it then determines whether the plaintiff has demonstrated a probability of prevailing on its claim.

In this case, there were a number of statements made on the Stocklemon blog which GTX claimed were false and defamatory, including allegations that the company was headed by a convicted felon, and engages in stock fraud.

The court held that these statements arose from an act taken in furtherance of Left’s right of free speech, and that GTX had failed to establish a probability of prevailing on its claims. It held that for purposes of the Anti-SLAPP statute, the website was to be considered a public forum. But the public forum status of the place where the statements were made was not determinative — the court also held that the statements were connected with an issue of public interest.

In determining that GTX had failed to demonstrate a likelihood of prevailing on its claim, the court found that GTX had “adduced no evidentiary support for any of its causes of action.” The plaintiff did not “identify a single piece of evidence to support its allegations that defendant’s challenged statements were false or otherwise defamatory.”

Accordingly, the court affirmed the dismissal of the action against Left, and awarded Left the attorney’s fees he had incurred, both at the trial court level and on appeal.

Appellate court lifts injunction against website owner in defamation case

Pennsylvania appellate court reverses trial court’s determination that former patient agreed to never again mention doctors on gripe site.

Nevyas v. Morgan, — A.2d —-, 2007 WL 704998 (Pa.Super. March 9, 2007)[Download opinion.]

A former patient unhappy with the LASIK surgery he received started a website to warn others of the procedure’s possible dangers. The website contained allegedly defamatory statements about the LASIK doctors who performed his procedure.


An attorney for the doctors sent a cease and desist letter to the patient, threatening to file a lawsuit against him if he failed to remove the content about the doctors. The patient responded with his own letter, agreeing to “conform to [the] request insofar as to remove any stated libelous reference to the [doctors] and their practice only.” The patient went on to state that he would not remove the site in its entirety, and would continue to publish “within the legal guidelines as allowed by . . . the First Amendment.”

The patient quickly lived up to his promise. He replaced the site with an earlier version that made no reference to the doctors at all. Nonetheless, a few days after that, the hosting provider removed the site at the doctors’ request.

Understandably perturbed by the deletion of his website, the patient got a new web host and reposted the version of the site containing the references to the doctors. A few months later, the doctors filed suit. As one would expect, the doctors sued for defamation, but they also sued for breach of contract and sought specific performance. They argued that by posting the earlier version of the site (which made no mention of the doctors) in response to the cease and desist letter, the patient entered an agreement to never again mention the doctors in any manner, whether defamatory or not.

The case went to trial on the claim for specific performance, and the court ruled in the doctors’ favor. It found that the parties had entered into an agreement whereby in exchange for the doctors not filing a lawsuit against the patient, the patient would remove all defamatory statements about the doctors from the site and refrain from defaming them in the future. But the trial court’s order went a bit further — it forbade the patient from mentioning the doctors at all.

On appeal, the court vacated the lower court’s order and remanded for further proceedings. The appellate court held that the trial court was correct that the actions of the patient in response to the cease and desist letter constituted an agreement to remove the defamatory content already on the site . But the appellate court also held that the patient’s action of uploading the original website, which contained no reference to the doctors, did not constitute an agreement on his part to never again mention them. Rather, the court held, the letter the patient sent in response to the cease and desist letter reserved the right to continue to update the site to mention the doctors.

Because the trial court did not consider whether the statements on the later version of the website were the same as what the patient had agreed to remove (or were otherwise defamatory), the case was remanded for further proceedings to consider that question.