Google acted as a “publisher” for CDA purposes for including third-party content in search results — Mmubango v. Google, Inc., 2013 WL 664231 (E.D. Pa. Feb. 22, 2013)
Google successfully obtained dismissal of a defamation lawsuit filed by a person (Mmubango) who found derogatory comments about him posted online. Mmubango discovered anonymous statements about himself on the “Wikiscams” website. Mmubango asked Google to remove the statements from its search engine and to give him information about the poster of the comments. Google refused.
Mmubango sued Google and others for defamation, and Google defended by moving to dismiss the claim based on Communications Decency Act (CDA) immunity. The federal district court for the Eastern District of Pennsylvania agreed that Google met the requirements for CDA immunity. First, Google is an interactive computer service provider. Second, Google did not author the allegedly defamatory content, but instead, was provided with it by another information content provider (i.e., Wikiscams). The defamation claim alleged that Google was liable for storing and broadcasting the derogatory comments about Mmubango. Third, Mmubango was seeking to treat Google as the publisher of third-party statements. Deciding whether to provide access to third-party content or, alternatively, to delete the content is an act of publishing. Under section 230 of the CDA, Google could not be held liable for defamation based on its decision to publish a third party’s statements. The court dismissed Google from the case.
Reliance on Communications Decency Act immunity does not convert a lawsuit into a federal case — Sulla v. Horowitz, Civ. No. 12-00449 (D. Haw. Oct. 4, 2012)
“You wanna make a federal case out of it?” Well, maybe you do, but as the federal district court of Hawaii recently explained, citing a federal statute and arguing that the Internet is involved won’t cut it.
The plaintiff (Sulla) was counsel to a party that foreclosed on property owned by the nonprofit corporation that one of the defendants (Horowitz) owned. Sulla alleged that Horowitz and his co-defendant began publishing defamatory statements about Sulla over the Internet, including through a website with a domain name bearing his name. Sulla sued Horowitz for defamation in state court, but the defendants removed the case to federal court, apparently based on diversity jurisdiction (i.e., all the plaintiffs are citizens of a different state than all the defendants). Noting that all the parties might be citizens of Hawaii, the federal court issued an order to show cause why the action should not be sent back to state court. Defendants’ briefing on the jurisdictional issue did not allay the court’s concerns.
The defendants argued that the court actually had federal question jurisdiction. The basis for their argument? Because the allegedly defamatory statements were published on the Internet, defendants argued, the court has exclusive federal jurisdiction over the case based on the Communications Decency Act (CDA). The court disagreed, giving a quick lesson on how the CDA and federal question jurisdiction work.
First, “Section 230 [of the CDA] does not shield persons from liability for defamatory statements that they make via the internet.” Second, whether CDA immunity applies is irrelevant to the analysis of federal jurisdiction. The court cited the basic rule that federal question jurisdiction cannot arise out of a defense (as compared to a claim) based in federal law. CDA immunity is a defense, so the possibility that the CDA might protect the defendants from liability for defamation did not convert the lawsuit into a “federal case.”
The court also found the defendants’ other arguments for federal jurisdiction unpersuasive and sent the case back to state court.
Court quashes subpoena to discover identity of anonymous bloggers after ruling that the bloggers’ statements are not defamatory — Somerset Development, LLC v. “Cleaner Lakewood”, 2012 WL 4370271 (N.J. Super. Ct. App. Div. Sept. 26, 2012)
This case shows how difficult it is to sue for statements made anonymously on the Internet. The plaintiff (Zucker) is the developer of a real estate project in the New Jersey township of Lakewood. Zucker learned through discussions with members of the Lakewood community that certain individuals anonymously posted statements on a blog hosted by Google’s Blogspot service. Zucker sued the blog operator and the anonymous individuals who posted on the blog. Zucker subpoenaed Google for information that would lead to the identification of the anonymous individuals.
The trial court quashed the subpoena, finding that the anonymous statements were not defamatory. The Appellate Division upheld the quash order. The court noted that Section 230 of the Communication Decency Act provides immunity to website operators who republish comments of others or block certain offensive materials. As for the anonymous posters, the court noted that there is a general, but not absolute, right under the First Amendment to speak anonymously. To balance the First Amendment right to speak anonymously against an individual’s right to protect its proprietary interests and reputation, the Appellate Division had set up a four-part test in Dendrite International, Inc. v. John Doe No. 3, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001):
1. The plaintiff must “undertake efforts to notify the anonymous posters that they are the subject of a subpoena or application for an order of disclosure, and withhold action to afford the fictitiously-named defendants a reasonable opportunity to file and serve opposition to the application.” Zucker satisfied this requirement by posting the subpoena on the blog under each offending post.
2. The plaintiff must “identify and set forth the exact statements purportedly made by each anonymous poster that plaintiff alleges constitutes actionable speech.” Zucker satisfied this requirement by highlighting the specific comments he alleged were defamatory in connection with posting the subpoena on the blog.
3. The court must determine whether the plaintiff has established a prima facie cause of action against the anonymous defendants. This is where Zucker’s effort to discover the identity of the anonymous poster gets stop cold. One of the elements of a defamation claim is that the statements at issue must have “defamatory meaning.” The anonymous posters had made statements like Zucker “short changed the taxpayers with millions”, “paved the way for the senior vote by stealing 6 million in tax dollars”, and “is behind all the anti hh propaganda going around[.]“ Other commenters called him a “rip off artist” and “under the table crook.” As much as such comments were strongly-worded, the court ruled that expressions of opinion on matters of public concern and “rhetorical hyperbole” are not actionable.
4. The plaintiff should file a request for discovery with the court, along with a statement justifying the specific discovery requested and identifying a limited number of persons or entities who are likely to produce identifying information about the anonymous defendant. The court did not get to this prong of the test because Zucker could not meet the third prong.
The challenge presented by the Dendrite test, or at least in the way it was applied here, is that it pre-judges the merits of a case even before the plaintiff has a chance to serve the complaint on the anonymous defendant. Take the court’s ruling on defamatory meaning, for example. Yes, the question of whether a statement is capable of defamatory meaning is a matter of law for the court to decide. But courts usually rule on the issue in deciding a motion to dismiss or motion for summary judgment. Here, the court ruled that the plaintiff is a public figure (thus triggering the heavy “actual malice” requirement) and that the statements in question were not defamatory as a matter of law before the complaint was even served. Under the Dendrite test, the plaintiff would have to successfully litigate those issues just to get the information they need to serve the complaint. That seems a tad bit backwards.
Section 230 of the CDA protects online news website from defamatory comment posted by anonymous person — Hadley v. Gatehouse Media Freeport Holdings, Inc.,2012 WL 2866463 (N.D. Ill. July 10, 2012)
This is a pretty straightforward Section 230 case. Gatehouse Media Freeport Holdings, Inc. publishes The Journal-Standard. Like many modern newspapers, The Journal-Standard is available in print and online. The Journal-Standard published an article about Bill Hadley, a candidate for political office. An anonymous person using the name “Fuboy” posted an online comment to the article saying that “Hadley is a Sandusky waiting to be exposed. Check out the view he has of Empire from his front door.” Hadley sued Gatehouse Media for defamation.
Gatehouse Media got the lawsuit dismissed based on Section 230(c)(1) of the Communications Decency Act of 1996, 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.” 47 U.S.C. § 230(c)(1). As a website host that allows readers to post comments, Gatehouse Media was an “interactive computer service.” A user who posts comments on the newspaper’s website is “another information content provider.” That means Gatehouse Media is not considered the publisher or speaker of the allegedly defamatory comment directed at Hadley.
Hadley hypothesized that Gatehouse Media could have invented a fictitious person named “Fuboy” to post the comment anonymously. There being no evidence, the court disregarded the argument as “sheer speculation.”
LegalTXT Lesson: Section 230 is a powerful shield against defamation in the digital age, and a much needed one given the ease with which anyone with a computer and an Internet connection can post outlandish remarks under the cover of anonymity on a website hosted by a member of the mainstreammedia.