E-mail gets country club member suspended

The recent Florida Court of Appeal case of Shumrak v. Broken Sound Club, 2005 Fla. App. LEXIS 3055 warns country club members to watch what they say in email to their club’s powers-that-be.

Plaintiff Shumrak sent an email to a member of his country club’s board of governors, commenting on the club’s general manager who was under investigation by the board. The board must have taken great offense to Shumrak’s comments, because as a result of the email, Shumrak was slapped with a six month suspension from the club. The board had exercised its sole discretion under an article of the club’s bylaws which allowed for suspension where a member’s conduct might “endanger the welfare, safety, harmony or good reputation of the Club or its members.”

Shumrak sued the club, claiming his suspension was improper. The trial court dismissed on the basis that it could not review a disciplinary decision of a private social club. The Court of Appeal affirmed. It did not buy Shumrak’s arguments that the club was more like a homeowner’s association, thus suspension would implicate property rights and be subject to review. Apparently, because Shumrak would be “suspended” for a limited period of time, and not “expelled,” his property rights were not brought into play.

Shumrak v. Broken Sound Club, Inc., 2005 Fla. App. LEXIS 3055 (March 9, 2005).

Webmaster not a “publisher” of defamatory comments made by third parties in users’ forum

An appeals court in New Jersey upheld the trial court’s dismissal of defamation claims against a community website forum operator, invoking an immunity provision of the Communications Decency Act of 1996.

This was a case of local politics gone bad. In 1999 defendant Moldow created a website featuring information about local government activities in the New Jersey town of Emerson. The site contained various features including a message forum where citizens could post messages anonymously.

After some time, certain anonymous visitors to the website began posting defamatory messages in the forum about various local elected officials, including plaintiffs Donato and Calogero. Plaintiffs filed suit against Moldow alleging defamation and other causes of action, on the theory that Moldow was liable for defamation as a publisher of the statements in his capacity as operator of the website.

The trial court dismissed the action against Moldow, finding that he was immune from liability under a provision of the Communications Decency Act of 1996 which 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,” and a related “good samaritan” provision discussed below. The appellate court affirmed, and went through a three part analysis under the statute.

In the first part of the analysis the court confirmed that Moldow was both a provider and user of an interactive computer service, as to not be considered a publisher. He was a provider of an interactive computer service merely by providing a website, and was a user by virtue of being a customer of an ISP.

The second part of the analysis focused on whether Moldow’s actions in shaping the discussions on the message forum rendered him an “information content provider” and thus not covered under the statute’s immunity. For example, Moldow deleted certain offensive messages, gave guidelines for posting, and edited and re-posted certain messages to remove obscenities. The court reviewed a litany of decisions from other jurisdictions which had considered similar questions. In the end, the court determined that Moldow’s activities were nothing more than the exercise of traditional editorial functions and thus subject to the type of immunity that Congress intended under the Act.

The third and final part of the court’s analysis considered whether Moldow had acted in bad faith in his actions. The appellants had claimed that Donato’s alleged personal malice toward them made it such that his conduct was in bad faith and thus not protected by the Act’s immunity. As a supplement to the immunity provisions, the Act has a “good samaritan” provision which states that no provider or user of an interactive computer service is liable for “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, filthy, excessively violent, harassing, or otherwise objectionable.” The court concluded that the good samaritan provision was enacted not to diminish the broad immunity, but to make sure that it was not diminished. Essentially, because the court had determined that Moldow’s actions were protected by the Act’s immunity, they could not have been done in bad faith.

Donato v. Moldow, 2005 WL 201121 (Ct. App. N.J., January 31, 2005)

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