Website drives off with Section 230 win over Chevy dealer

Nemet Chevrolet sued the website Consumeraffairs.com over some posts on that website which Nemet thought were defamatory and interfered with Nemet’s business expectancy. The website moved to dismiss the lawsuit, claiming that the Communications Decency Act at 47 U.S.C. 230 immunized the website from the lawsuit.

But when we're driving in my Malibu, it's easy to get right next to you. . . . "

The court dismissed the action on Section 230 grounds and Nemet sought review of the dismissal with the Fourth Circuit Court of Appeals. The appellate court affirmed the dismissal.

Section 230 precludes tort plaintiffs from holding interactive computer services (like website operators) liable for the publication of information created and developed by others. Most courts (like the Fourth Circuit) consider Section 230’s protection to be a form of immunity for website operators from lawsuits arising over third party content.

But that immunity disappears if the content giving rise to the dispute was actually created or developed by the operator and not by a third party. In those circumstances the operator also becomes an information content provider. And there is no Section 230 immunity for information content providers.

That’s where Nemet steered its argument. It alleged that the website was a non-immune information content provider that created and developed the offending content.

Nemet raised two general points in its argument. It claimed that the website’s structure and design elicited unlawful content, and that the site operator contacted individual posters to assist in revisions to the content. It also claimed that the site operator simply fabricated a number of the offending posts.

Applying the pleading standards on which the Supreme Court recently elaborated in Ashcroft v. Iqbal, the court found Nemet’s claims that the site operator was actually an information content provider to be implausible.

As for the structure and design argument, the court differentiated the present facts from the situation in Fair Housing Council of San Fernando Valley v. Roommates. com. In Roommates.com, the court found that the website was designed to elicit information that would violate the Fair Housing Act. In this case, however, there was nothing unlawful in inviting commentary on goods or services, even if it was for the purposes of drumming up business for plaintiffs’ class action lawyers.

As for the other arguments, the court simply found that the allegations did not nudge the claims “across the line from conceivable to plausible.” The court found the argument that the website fabricated the posts to be particularly not creditable, in that Nemet’s allegations relied mainly on an absence of information in its own records that would connect the post to an actual customer.

On balance, this decision from the Fourth Circuit shows that Section 230 immunity is as alive and well at the end of the “oughts” as it was a dozen years before when the Fourth Circuit became the first federal appellate court to consider the scope of the section’s immunity. That 1997 decision in the case of Zeran v. AOL remains a watershed pronouncement of Section 230’s immunity.

Congratulations to my friend and fellow blogger Jonathan Frieden’s impressive win in this case.

And Happy New Year to all the readers of Internet Cases. Thanks for your continued loyal support.

Chevy Malibu photo courtesy Flickr user bea-t under this Creative Commons license.

My Public Radio debut

Had a great time talking about anonymity and the First Amendment with Sheilah Kast of Baltimore’s 88.1 FM WYPR on today’s Maryland Morning. I talked about the court’s analysis in the recent case of Independent Newspapers, Inc. v. Brodie (which I wrote about here).

Listen to the interview here:

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Expedited electronic discovery includes subpoena to ISP and imaging of defendants’ hard drives

Allcare Dental Management, LLC v. Zrinyi, No. 08-407, 2008 WL 4649131 (D. Idaho October 20, 2008)

Plaintiffs filed a defamation lawsuit against some known defendants as well as some anonymous John Doe defendants in federal court over statements posted to Complaintsboard.com. The plaintiffs did not know the names or contact information of the Doe defendants, so they needed to get that information from the Does’ Internet service provider.  But the ISP would not turn that information over without a subpoena because of the restrictions of the Cable Communications Policy Act, 47 U.S.C. § 501 et seq. [More on the CCPA.]

Under Federal Rule of Civil Procedure 26(d)(1), a party generally may not seek discovery in a case until the parties have had a Rule 26(f) conference to discuss such things as discovery. Because of the Rule 26(d)(1) requirement, the plaintiffs found themselves in a catch-22 of sorts: how could they know with whom to have the Rule 26(f) conference if they did not know the defendants’ identity.

So the plaintiffs’ filed a motion with the court to allow a subpoena to issue to the ISP prior to the Rule 26(f) conference. Finding that there was good cause for the expedited discovery, the court granted the motion. It found that the subpoena was needed to ascertain the identities of the unknown defendants. [More on Doe subpoenas.] Furthermore, it was important to act sooner than later, because ISPs retain data for only a limited time.

The Plaintiffs also contended that that the known defendants would likely delete relevant information from their computer hard drives before the parties could engage in the ordinary process of discovery. So the plaintiffs’ motion also sought an order requiring the known defendants to turn over their computers to have their hard drives copied.

The court granted this part of the motion as well, ordering the known defendants to turn their computers over to the plaintiffs’ retained forensics professional immediately. The forensics professional was to make the copies of the hard drives and place those copies with the court clerk, not to be accessed or reviewed until stipulation of the parties or further order from the court.

No CDA immunity for letting co-defendant use computer to post material

Capital Corp. Merchant Banking, Inc. v. Corporate Colocation, Inc., No. 07-1626, 2008 WL 4058014 (M.D.Fla., August 27, 2008)

Professor Goldman points us to a recent decision in a case where the plaintiff alleged that one of the individual defendants “allowed [a co-defendant] to use ‘a computer registered in her name’ to make . . . defamatory statements.” The defendants filed a 12(b)(6) motion to dismiss, arguing that the Communications Decency Act (CDA) at 47 U.S.C. 230 barred the claims. The court denied the motion.

With little analysis, the court cited to the 9th Circuit’s Roommates.com decision, holding that “[t]he CDA provides immunity for the removal of content, not the creation of the content.” While that is not an incorrect statement, it is troublesome in this context inasmuch as it tells half the story.

Yes, 47 U.S.C. 230(c) does provide protection to “Good Samaritan” operators of interactive computer services who remove offensive content. The user whose content has been removed would not have a cause of action against the operator who took down the content in good faith. See 47 U.S.C. 230(c)(2).

But 47 U.S.C. 230(c)(1) provides that no provider of an interactive computer service shall be treated as a publisher or speaker of any information provided by a third party. Courts have usually held that when a defamation plaintiff brings a claim against the operator of the computer service used to post defamatory content (who was not responsible for creating the content), such a claim is barred, as the plaintiff would not be able to satisfy the publication element of a defamation prima facie case.

Maybe in this situation the court found that the defendant who let a co-defendant use her computer did not meet the definition of a service provider as contemplated by the CDA. But it would have been nice to see that analysis written down, rather than having to merely surmise or speculate.

Google doesn’t have to pay $50 billion to defamation plaintiff

Steele v. Mengelkoch, 2008 WL 2966529 (Minn.App. August 5, 2008).

Pro se plaintiff Steele sued Google in Minnesota state court for $50 billion because Google indexed an article which Steele though defamed him. Google moved to dismiss the complaint for failure to state a claim and the lower court granted the motion. Steele sought review with the Court of Appeals of Minnesota. On appeal, the court affirmed.

The court held that 47 U.S.C. §230, by its plain language, creates a federal immunity to any cause of action that would make Google – as the provider of an interactive computer service – liable for information originating with a third party user of the service.

In the court’s language, §230(c)(1) “precludes courts from entertaining claims that would place a computer service provider in a publisher’s role.” So a lawsuit seeking to place responsibility on Google to exercise traditional roles of the publisher – e.g., deciding to publish, withdraw, postpone or alter content – was not legally sufficient to survive.

Other coverage:
Techdirt
Professor Goldman

Complaint amended in AutoAdmit defamation lawsuit

The saga surrounding the defamation lawsuit filed by a couple of Yale law students against some anonymous posters to the AutoAdmit forum board keeps brewing. According to this article from the Yale Daily News, the plaintiffs, two female law students, have amended their complaint against the 38 John Doe defendants. This time around, they omitted from the list of defendants a former employee of AutoAdmit, who was a defendant in the original complaint. Looks like the plaintiffs have considered the effect of 47 USC 230 on their chances of success against the provider of the forum board service.

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