Category Archives: Defamation

An interesting application of Section 230 and a long arm statute

Plaintiff Whitney Information Network sued the owners of the infamous Ripoffreport.com and other sites over some negative postings about Whitney appearing online. In July 2005, the U.S. District Court for the Middle District of Florida dismissed Whitney’s complaint, holding that the defendants were immune from defamation liability under provisions of the Communications Decency Act found at 47 U.S.C. §230. [Read more about that decision.]

Apparently recognizing the challenges presented by Section 230, which provides 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,” Whitney filed an amended complaint. This time it alleged that the defendants played an active role in generating the complained-of content by revising benign third party postings to add words like “ripoff,” “dishonest,” and “scam.”

The defendants moved to dismiss, arguing a lack of personal jurisdiction for Whitney’s failure to satisfy the requirements of Florida’s long arm statute (Fla. Stat. §48.193). That statute provides, among other things, that a Florida court can exercise personal jurisdiction over an out of state defendant if that defendant commits a tortious act within the state. This can be done, for example, through electronic communications into the state. Wendt v. Horowitz, 822 So.2d 1252 (Fla. 2002).

The defendants did not dispute that the amended complaint successfully alleged active participation on their part in generating the alleged defamatory content. But in connection with their motion to dismiss, they submitted a couple of affidavits, including one from a technological consultant named Smith, which they claimed controverted the plaintiff’s allegations supporting jurisdiction.

These affidavits tended to support the defendants’ argument that they were not responsible for modifying any postings made to their sites. If they were merely the provider of the interactive computer service, and not the actual content provider, so they argued, Section 230 immunized them from tort liability. Without tort liability, there could not be any tortious conduct directed to the state. No tortious conduct directed to the state, no personal jurisdiction under the long arm statute.

The district court bought this clever argument, holding that the affidavits put the burden back on the plaintiff to come forward with more evidence supporting the exercise of personal jurisdiction. In the district court’s mind, the plaintiffs failed to meet that burden, so it dismissed the case.

But the Eleventh Circuit disagreed. It reversed and remanded the lower court’s dismissal, holding that the defendants’ affidavits, with which they tried to make themselves something other than content providers, were insufficient to shift the burden in the first place.

For example, although Smith (the technological consultant) stated that none of the postings’ IP addresses were associated with the defendants’ computers, he conceded that he was unable to obtain IP addresses for three of the complained-of postings. The defendants were trying to show that they were not responsible for tampering with any of the content. But the court saw through that argument, observing also that it was unclear whether the defendants’ own IP addresses would have shown up had they merely modified any of the postings, rather than create them.

For these reasons, the appellate court held that the defendants had not successfully rebutted the plaintiff’s allegations supporting the exercise of jurisdiction pursuant to the Florida long arm statute. It remanded for further proceedings on the question of whether the exercise of personal jurisdiction would comport with constitutional due process.

Whitney Information Network, Inc. v. Xcentric Ventures, LLC (Slip Op.) 2006 WL 2243041 (August 1, 2006).

Are bloggers liable for defamatory third party comments to their posts?

We don’t know yet. But probably not.

The headline to this article from law.com is a bit misleading. It reads, “Judge: Bloggers Entitled to Immunity Under Communications Act.” While that is probably true, the case that the article covers did not address the defendant’s status as a blogger. Yes, the defendant Tucker Max has a blog, but the alleged defamatory comments at issue in the case were posted to a message board, not as a blog post or blog comments. The case is called Dimeo v. Max, (Slip Op.) 2006 WL 1490098 (E.D. Pa., 2006).

So the case really wasn’t much different from a lot of other cases applying 47 U.S.C. 230 to communications posted online. The leading case on Section 230 immunity, Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997) provided immunity to AOL for messages posted to a forum board. More recently, courts have found message board operators protected under Section 230 in cases such as Donato v. Moldow and Roskowski v. Corvallis Police Officers’ Association.

Section 230(c) 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.” As far as I know, there have not yet been any reported court decisions addressing the question of whether Section 230 immunity applies to bloggers. We came pretty close to seeing the issue addressed earlier this year with the case of TrafficPower.com v. Seobook.com in a federal court in Nevada, but that case was dismissed for lack of personal jurisdiction. [Read Eric Goldman's coverage of that case.]

What’s the story about the Maine blogger lawsuit?

Updated to add: The plaintiff Warren Kremer Paino Advertising has voluntarily withdrawn its lawsuit against defendant Lance Dutson. From Ronald Coleman: “They didn’t expect pushback — much less pushback from the whole ‘blogosphere,’ with lawyers lining up to defend the little guy. The handwriting was on the wall. Or the screen, I guess.” [More info here]

A number of InternetCases.com readers have e-mailed me asking about the recently-filed defamation case against Maine blogger Lance Dutson. The case is called Warren Kremer Paino Advertising, LLC v. Dutson and has been filed in the U.S. District Court for the District of Maine.

Here’s just about everything you need to know about the legal issues in the case: there is nothing new under the sun … but the defendant is a blogger.

As I emphasized a couple of weeks ago when I spoke on the topic of blogging and defamation, the traditional principles of defamation law apply with equal force in the blogosphere. Just because a defendant is a blogger does not mean he or she is held to a stricter or more lenient standard than a speaker in the brick-and-mortar world.

Under Maine law, which the Federal court hearing the case will have to apply, a successful defamation plaintiff must prove that (1) the defendant made a false and defamatory statement concerning the plaintiff, which was contained in (2) an unprivileged publication to a third party, (3) that the defendant was at least negligent in making the statement, and (4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication. Lester v. Powers, 596 A.2d 65 (Me. 1991).

Because the subject matter of the alleged defamatory postings involves a matter of public concern (e.g., accusations of misappropriated tax revenue), the plaintiff will have to prove that the statements contained in the postings were made with “actual malice.” This heightened standard for matters of public concern has its origins in the landmark Supreme Court cases of New York Times v. Sullivan, 376 U.S. 254 (1964) and Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).

Although one should not lose sight of the fact that there really is nothing unique about the legal issues in an online defamation claim, the allure of a blogger-defendant is undeniable. The democratizing aspect of blogs as media naturally elicits all kinds of First Amendment and root-for-the-underdog sentiments. Attorney Ron Coleman, who is assisting in Dutson’s defense, observes,

“Most defamation claims are brought for the simple purpose of intimidating defendants who can’t afford lawyers. Historically, therefore, media outlets have made it their business to find a way financially to keep lawyers on retainers. That’s not true of bloggers — at least not yet. Until then, bloggers can count on the good offices of public-spirited [law] firms … and the coordinating and legal contributions of fellow bloggers at the Media Bloggers Association.”

In any event, one fact in the case could yield some entertainment value if it is the subject of a motion. You may recall that mere opinions are not actionable as defamatory. One of the allegations in the case is that Dutson defamed the plaintiff when he wrote that it was “pissing away” taxpayer money. It would be enlightening to read the court’s analysis on the question of whether that statement “communicates [a] factual proposition susceptible of proof or refutation.”

Company had no standing to challenge discovery on behalf of anonymous defamers

After seeing what it believed to be defamatory statements about it on Yahoo! Finance and Silicon Investor message boards, plaintiff Matrixx Initiatives, Inc. (“Matrixx”) filed a lawsuit against several “John Doe” defendants. Through information obtained from Yahoo!, Matrixx determined that certain of the alleged defamatory statements were posted with computers owned by Barbary Coast Capital Management. Matrixx took the deposition of one Mr. Worthington, the manager of Barbary Coast, asking him to identify the anonymous Internet users who posted the alleged defamatory statements. Worthington refused.

Matrixx filed a motion to compel Worthington to answer the questions, and the trial court granted the motion. Worthington and Barbary Coast sought review, arguing that the posters’ First Amendment right to speak anonymously should prohibit the disclosure of their identities. On appeal, the court affirmed the decision of the lower court, holding that Worthington and Barbary Coast did not have standing to invoke the anonymous posters’ First Amendment rights.

In reaching its decision, the court distinguished two other cases in which the recipient of a subpoena did have standing to challenge the unmasking of another person. In the cases of In re Subpoena Duces Tecum to America Online, Inc., 2000 WL 1210372 (Va. App. 2000), and In re Verizon Internet Services, 257 F.Supp.2d 244 (D.D.C. 2003)(both cases reversed on other grounds), Internet service providers did not have to identify anonymous customers pursuant to subpoenas served on the ISPs. In each of these cases, the courts held that the ISPs had standing to assert the customers’ rights to remain anonymous, because the customer relationships were sufficiently close. In this case, however, the court held that “by contrast, we are presented with no ‘close relationship’ — or, indeed, any relationship — between appellants and the individuals for whom they are seeking First Amendment protection.”

Matrixx Initiatives, Inc. v. Doe, — Cal.Rptr.3d —, 2006 WL 999933 (Cal.App. 6 Dist, April 18, 2006).

Communications Decency Act shields web host as “distributor” of defamatory content

Plaintiff Austin, the owner of a travel-related business, accused the owner of one of his business’s competitors of posting defamatory content on the competitor’s website. Austin filed a defamation lawsuit against the company that hosted the website, claiming that it was liable for refusing to take down the alleged defamatory statements.

The web hosting company successfully moved for summary judgment, citing to 47 U.S.C. §230, a portion of the Communications Decency Act of 1996 which 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.” Austin sought review of the trial court’s decision.

Austin argued that the plain language of §230 provides a shield only for liability that would result from being a publisher of defamatory material. Because the web hosting company was a distributor of defamatory content, Austin argued, §230 should not apply, and thus the lower court erred in granting summary judgment on that basis.

The appellate court rejected Austin’s argument, relying heavily on the decision of Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir., 1997). As in Zeran, the court found that Congress had spoken directly to the issue by “employing the legally significant term ‘publisher,’ which has traditionally encompassed distributors and original publishers alike.” The court held that because distributor liability is a subset of publisher liability, it is therefore specifically foreclosed by § 230.

Austin v. CrystalTech Web Hosting, — P.3d —, 2005 WL 3489249 (Ariz. App. Div. 1, December 22, 2005).

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Delaware decision defines standards for protecting anonymous Internet speech

The recent case of Doe v. Cahill, coming to us from the Supreme Court of Delaware, illustrates a court’s willingness to ensure adequate safeguards to protect anonymous speech on the Internet.

In September of 2004, an anonymous visitor to a Smyrna, Delaware community weblog posted comments about city councilman Patrick Cahill, which Cahill believed to be damaging to his reputation. Cahill filed a defamation lawsuit. Because he did not know the identity of the anonymous commenter, he filed suit against “John Doe,” and began procedures under Delaware law to discover Doe’s true identity. Cahill learned that Doe used Comcast as an Internet service provider, and obtained a court order requiring Comcast to disclose Doe’s real name.

As required by the federal Cable Communications Policy Act of 1984, at 47 U.S.C. §551(c)(2), Comcast notified Doe of the request for information about his identity. [More on the Cable Communications Policy Act.] In response, Doe sought an emergency protective order to bar Comcast from turning over his information. The trial court denied Doe’s request for a protective order, and held that Cahill could obtain Doe’s identity from Comcast. Doe appealed directly to the Delaware Supreme Court. On appeal, the Court reversed the lower court’s decision.

The Supreme Court determined that the trial court had applied too low a standard in testing whether Comcast should be ordered to turn over Doe’s identity. The trial court had applied a “good faith” standard, namely, that disclosure was warranted because Cahill had established through his pleadings that he had a legitimate, good faith basis on which to bring the defamation claim.

The Supreme Court held that such a low standard was not sufficient to protect one’s right to speak anonymously. The lower, good faith standard might encourage meritless lawsuits brought merely to uncover the identities of anonymous critics. Accordingly, the Supreme Court adopted a standard “that appropriately balances one person’s right to speak anonymously against another person’s right to protect his reputation.”

The Court held that before a defamation plaintiff can obtain the identity of an anonymous defendant through the compulsory discovery process, he must come forth with facts sufficient to defeat a summary judgment motion. Said another way, before a Delaware court will order an anonymous speaker to be unmasked, the plaintiff has to present evidence creating a genuine issue of material fact for each element of the defamation claim.

Applying that standard to the present case, the court held that “no reasonable person could have interpreted [Doe's] statements to be anything other than opinion.” The court observed that its conclusion was supported by the “unreliable nature of assertions posted in chat rooms and on blogs.” The case was dismissed.

Doe v. Cahill, — A.2d —, 2005 WL 2455266 (Del., October 5, 2005).
[Full text of decision in PDF]

Add another word to the lexicon of non-defamatory terms: “dud”

This past spring the California Court of Appeal provided an entertaining holding in the case of Vogel v. Felice, letting the world know that the term “dumb ass” is not a defamatory term. [More on the Vogel case.]

Now the Court of Appeals of Michigan continues the effort of building a lexicon of non-defamatory terms with its decision in the case of Hatfield v. Riley. From this case we learn that calling someone a “dud” is apparently okay in the state of Michigan.

Plaintiff Hatfield, a special education teacher, filed suit against defendant Riley after she learned that Riley posted an article on his website that referred to various “DUD teachers.” The lower court threw out Hatfield’s lawsuit on summary judgment. The appellate court affirmed.

As in Vogel, the Michigan court focused on the inability of proving the veracity of the alleged defamatory term. The court concluded that the truth of “dudness” remained inscrutable:

“[D]efendant’s statement regarding plaintiff was not provable as false and was merely a subjective opinion. . . . A question whether someone is a “DUD” teacher is necessarily subjective and not provable as false. In cases where statements reasonably cannot be interpreted as stating actual facts about an individual, those statements are protected under the First Amendment.”

Hatfield v. Riley, 2005 WL 2401628 (Mich.App., September 29, 2005) (Not selected for official publication).

Section 230 of Communications Decency Act shields websites from defamation liability

Plaintiff Whitney Information Network sued various defendants that publish websites which purport to provide consumers with an outlet to report dishonest companies. Whitney claimed it had been harmed from the defendants’ reckless publication of false stories about its business. It alleged various causes of action against the defendants, including defamation per se of business reputation.

The defendants moved to dismiss the defamation claim, arguing that Section 230(c)(1) of the Communications Decency Act shielded them from liability for defamation. That portion of the act provides that, “No 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 found that the defendants did not write the messages that appeared on their websites. Instead, visitors to the website submitted the information. Accordingly, the court dismissed the defamation claim, holding that the “Defendants are a service provider as they publish information by consumers on their website.”

Whitney Information Network, Inc. v. Xcentric Ventures, LLC, 2005 WL 1677256 (M.D.Fla., Jul 14, 2005).

Accusations that former employee posted obscene material on website were not defamatory

Mark Cody was fired from his job as general sales manager for WPWX-FM in Hammond, Indiana. Soon after his termination, someone posted obscene images on the WPWX website. Cody’s former boss, Taft Harris, wrongfully accused Cody of posting the images. In a meeting of the radio station’s employees, Taft stated, “This has got to be Mark Cody. I know Mark did this. I know he is responsible for this.”

Cody sued Harris and the owner of the radio station alleging various causes of action, including defamation. Cody claimed that Harris’s comments were defamatory per se, because they were disparaging of Cody’s professional reputation, i.e., his ability to manage a sales force.

The district court dismissed Cody’s defamation count, and the Seventh Circuit affirmed the dismissal. The court held that Harris’s statements were not defamatory per se, because instead of disparaging Cody’s ability as a sales manager, they merely attacked his personal integrity. Because there was no defamation per se, it was necessary for Cody to have pled and proven actual damages for defamation, which he had not done.

Cody v. Harris, — F.3d —, 2005 WL 1274352 (7th Cir., May 31, 2005).

California Court of Appeal: “Dumb Ass” is not a defamatory term

[Thanks to Denise at Bag and Baggage for alerting me to this entertaining and humorous case.]

It’s not too often that the courts get to pass judgment on the really important issues of our time. But in its March 24 decision in the case of Vogel v. Felice, the California Court of Appeal has determined that calling someone a “dumb ass” does not give rise to liability for defamation. “A statement that [a person] is a ‘Dumb Ass,’ even first among ‘Dumb Asses,’ communicates no factual proposition susceptible of proof or refutation.”

Of course there was a bit more at issue in this case. The plaintiffs were two candidates for public office who filed a libel suit against the defendant website operator. On his site, the defendant had listed the “Top Ten Dumb Asses,” and the plaintiffs occupied the top two slots on this list. The defendant accused one of the plaintiffs of being a “dead beat dad,” while accusing the other plaintiff of being “Bankrupt, Drunk & Chewin’ tobaccy.” Various links associated with plaintiffs led to certain unsavory websites.

The defendant filed a special motion to strike the complaint under California’s anti-SLAPP (Strategic Lawsuit Against Public Participation) statute (Cal. Civ. Proc. Sec. 425.16) which entitles such motion in any cause of action “arising from any act of [the defendant] in furtherance of [his or her] right of petition or free speech under the United States or California Constitution in connection with a public issue … unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” The trial court denied the motion to strike, but the Court of Appeal reversed.

The court broke the analysis down to three questions: (1) Did plaintiffs’ cause of action arise from conduct in furtherance of the defendant’s petition or speech rights? (2) Was defendant’s conduct connected with a public issue? and (3) Had the plaintiffs established a probability of success on their claims? The court easily determined that the first two questions were to be answered in the affirmative. Most of the analysis focused on the third question. The court determined that the plaintiffs had not established a probability of success on their claims.

In finding that plaintiffs had not established a probability of success, the court noted that the complaint was legally insufficient on its face, because plaintiffs had failed to plead that defendant acted with “actual malice.” Furthermore, the complaint and the record was factually insufficient to support a probability of success for various reasons.

First, as discussed above, the claim that being called a “dumb ass” was defamatory failed as a matter of law for the inability of such a statement to be proved or disproved. Secondly, because the plaintiffs were public figures, they had the burden of proving the challenged statements were false. The court found that plaintiffs had not provided enough detail to show the “substantial falsity” of the claims. Finally, the court held that linking to various sites in connection with the plaintiffs’ names was not defamatory in that the association created thereby did not convey a substantially false meaning.

Vogel v. Felice, 2005 WL 675837 (Cal. Ct. App., March 24, 2005).