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DiMeo v. Max, No. 06-3171 2007 WL 2717865 (3rd Cir. September 19, 2007) (Not precedential)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

Opinion appears below (or click through if the embedded content is not showing up in the RSS feed).

New source of business for litigators introduced at TechCrunch40

Docstoc is a new “online community and professional network” introduced this week at TechCrunch40 “geared around user generated, professional documents.” The idea is that business people will be able to find documents like nondisclosure agreements online, presumably avoiding lawyers as the middlepeople.

It’s a clever idea. Scribd (which I use from time to time here on Internet Cases) is already doing something similar, but is not geared toward professional documents. So Welcome Docstoc! With more people relying on poorly drafted documents not tailored for their particular situation, there will be more business disputes. That means more work for those whose livelihoods depend on that kind of misunderstanding and discord.

Back to basics on open source

The new version of the GPL (v3) is on its way, and what better time than now to revisit some of the principles underlying open source software. While brushing up on open source concepts, I found this concise yet intelligent rundown of open source issues with an uncommon look at the downside. It’s published by the American Bar Association, so it’s gotta be good. I’m not sure how old it is (how hard would it have been to put a publication date on it?), but it’s clearly still relevant.

Wonkette in, now out, of Steinbuch v. Cutler

Steinbuch v. Cutler, No. 05-970 (D.D.C. May 16, 2007)

Back in late October 2006, the court in the case of Steinbuch v. Cutler allowed the infamous blogger Ana Marie Cox a/k/a Wonkette to be added as a defendant. [Read about that here.] The case raised the question of whether simply linking to another site could subject a blogger to tort liability. We’re now learning that Wonkette has been dismissed.

The court’s order granting the motion to dismiss hasn’t been loaded onto PACER yet, but here is a copy of the motion and brief Wonkette filed back in January. In that motion, she argued a number of reasons why the case against her should be dismissed, including immunity under the Communications Decency Act [at 47 U.S.C. 230]. It isn’t clear yet what the exact basis for dismissing the case was, but, according to this article the court agreed that the claims were time-barred.

The day after Wonkette was added to the suit, Eric Goldman suggested that Section 230 immunity would apply. And Wonkette’s brief is a nice walk down Section 230 lane.

eBay not a “consumer reporting agency”

Plaintiff McCready was a seller on eBay who had some dissatisfied customers. They voiced that dissatisfaction by leaving negative feedback about McCready in eBay’s Feedback Forum. Instead of working to “make good on his sales,” McCready embarked on “retaliatory litigation” against a number of individuals and entities, including eBay.

McCready filed lawsuits in different fora around the Midwest, including one in the U.S. District Court for the Central District of Illinois. He alleged, among other things, that eBay violated the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §1681 et seq., by providing false and misleading information in the Feedback Forum. The district court dismissed the claim, and McCready sought review. On appeal, the Seventh Circuit affirmed.

To succeed on the FCRA claim, McCready would have had to show that eBay is a “consumer reporting agency” as provided by the statute. He failed to do so, however, because he could not show that the Feedback Forum is a “consumer report.” By definition, a “consumer reporting agency” provides “consumer reports,” and without showing that the Feedback Forum is a “consumer report,” eBay could not be considered a “consumer reporting agency.”

The court held that “given the broad statutory purpose of preserving individuals’ privacy,” a “consumer” under the FCRA must be an identifiable person. The Feedback Forum, however, is arranged by usernames, so anonymity – to the extent eBay sellers so desire – remains intact. Any information about the person behind an eBay username would not be about an “identifiable person” as required by the FCRA.

Citing to the case of Ippolito v. WNS, Inc., 864 F.2d 440 (7th Cir. 1988), the court further held that the FCRA applies only to information that is to be used for consumer purposes, not commercial, business or professional purposes. The Feedback Forum assists eBay shoppers in deciding whether to purchase goods from a particular seller, and that is an “inherently commercial” activity. Without the required consumer purpose, the Feedback Forum could not rise to the level of a “consumer report.”

McCready v. eBay, Inc., — F.3d. —, (7th Cir. July 10, 2006).

So now we all know this guy’s ex-girlfriends don’t like him

In Pittsburgh, attorney Todd J. Hollis has filed a defamation suit against the funny little website called dontdatehimgirl.com. Apparently one or more of Hollis’s ex-girlfriends posted some nasty stuff about him on that website. [Fox News has reported on this as well as Techdirt.]

Mr. Hollis should have spent at least a few minutes researching well-established federal law before filing this lawsuit against the operator of the website. Section 230 of the Communications Decency Act, 47 U.S.C. 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.”

The complained-of comments were provided by ex-girlfriends, not the website owner. Ergo, the website owner is not the publisher and cannot be liable for defamation here.

The Fox News account of the story states that Hollis claims that “the site does not have safeguards in place to ensure the truthfulness of items posted on it.”

Too bad. The site doesn’t have to. It’s been almost ten years since Ken Zeran made that same argument in the case of Zeran v. AOL, 129 F.3d 327 (4th Cir. 1997). In that watershed case, the court, in finding AOL immune from liability for defamatory postings by a user of a forum board, observed that “[i]t would be impossible for service providers to screen each of their millions of postings for possible problems.”

And thus the wisdom of immunity under Section 230.

Wikipedia and the courts

Recently there has been a fair amount of controversy on the reliability of the well-known open source project known as Wikipedia. [See, e.g., here and here.] Although not everyone is convinced that Wikipedia can be trusted to always tell the truth, it is interesting to note that in the past year or so several courts, including more than one federal circuit court, have cited to it to fill in background facts relevant to cases before them. Here are some examples, and the terms or facts elaborated therein:

  • M.K. Plastics Corp. v. Rossi, — N.E.2d —-, 2005 WL 3358644 (Ind.App., December 12, 2005) — “AutoCAD”
  • State v. Kante, 2005 WL 3115377 (Table, Text in WESTLAW), (Iowa App., November 23, 2005). — “French is the official language of the Republic of Guinea.”
  • Neeley v. West Orange-Cove Consol. Independent School Dist., — S.W.3d —-, 2005 WL 3116298, (Tex., November 22, 2005) — “Efficiency”
  • Allegheny Defense Project, Inc. v. U.S. Forest Service, 423 F.3d 215, (3rd Cir., September 15, 2005) — “Understory”
  • U.S. v. Krueger, 415 F.3d 766, (7th Cir., July 28, 2005) — “Shake”
  • Amco Ukrservice & Prompriladamco v. American Meter Co., 2005 WL 1541029, (E.D.Pa., Jun 29, 2005) — “Sea of Okhotsk”
  • Patel v. Shah, 2004 WL 2930914, (Nonpublished/Noncitable) (Cal.App. 4 Dist., Dec 17, 2004) — “Simple majority”
  • Bourgeois v. Peters, 387 F.3d 1303, (11th Cir., October 15, 2004) — “Homeland Security Advisory System”

At least one court, however, has noted the risk of error in relying on an open source project, and refused to consider what Wikipedia had to say. The Tennessee Court of Appeals noted:

Given the fact that this source is open to virtually anonymous editing by the general public, the expertise of its editors is always in question, and its reliability is indeterminable. Accordingly, we do not find that it constitutes persuasive authority. [English Mountain Spring Water Co. v. Chumley, 2005 WL 2756072 (Tenn.Ct.App., October 25, 2005).]

The English Mountain court apparently took this whole notion of reliability pretty seriously. It wouldn’t even take Wikipedia’s word for it that “bottled water” is a “beverage.”

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