Employees can get carried away on social media. US Airways learned this the hard way when its employee responded to a customer complaint on Twitter with an obscene picture of a woman and a toy jet. An apology and deletion of the tweet followed an hour later (an eternity in cyberspace). US Airways claims its employee made an “honest mistake,” and the incident has not spawned a lawsuit, but one can imagine situations in which the malicious online statements of an employee land the employer in legal trouble.
So what’s an employer to do? Thankfully, employers can find some solace in Section 230 of the federal Communications Decency Act (“CDA”), as a recent Indiana case illustrates. In Miller v. Federal Express Corp., an employee of a non-profit organization, 500 Festival, Inc. (“500 Festival”), and an employee of FedEx separately posted comments on media websites criticizing the plaintiff’s leadership of Junior Achievement of Central Indiana, which he ran from 1994 to 2008. Although the employees posted the comments using aliases, the plaintiff traced the comments back to IP addresses assigned to 500 Festival and FedEx and sued them for defamation.
The Indiana Court of Appeals affirmed the trial court’s dismissal of the defamation claims against 500 Festival and FedEx based on the Section 230 of the CDA. Congress passed Section 230 to protect companies that serve as intermediaries for online speech from liability for harmful content posted by third parties. A defendant claiming Section 230 immunity must show that: (1) it is a provider or user of an interactive computer service; (2) the plaintiff’s claim treats it as the publisher or speaker of information; and (3) another information at issue was provided by another content provider. Satisfying these three elements immunizes the defendant from suit, although the author of the offensive content could still be held liable.
It’s not difficult to see how Section 230 applies where, for instance, the operator of an online discussion forum is sued for defamation based on a comment posted by a forum member. The operator easily qualifies as an “interactive computer service” and can argue it is not liable for content that someone else published. But could a corporate employer qualify for Section 230 immunity? The court in Miller said yes, siding with precedent set by California and Illinois courts. An employer that provides or enables multiple users on a computer network with Internet access qualifies as a provider of an interactive computer service. Since the defamation claims tried to hold 500 Festival and FedEx liable for allegedly publishing statements made by their employees, Section 230 barred the claims.
Controlling what employees say online can be a daunting task, but it’s nice to know that employers have some protection from legal liability for the “honest” (or not so honest) mistakes of employees.
FC 250 Grand Marshal, Paula Deen (Photo credit: Bristol Motor Speedway & Dragway)
Lisa Jackson’s discrimination and sexual harassment lawsuit against Paula Deen settled last Friday, but not before Deen tried to remove Jackson’s attorney, for publicly disparaging her on social media. A court order filed hours before the settlement reveals that in March, Deen’s lawyers filed a motion for sanctions against Matthew C. Billips, the lawyer who represented Jackson (read the motion here). The motion alleges that Billips made offensive remarks about Deen on Twitter. Some of the more eyebrow-raising tweets included:
“I’ve been doing Paula Deen, in a strongly metaphorical sense”
“I plan on undressing [Deen]” (in reference to an upcoming deposition of Deen)
“Now talk about fun, suing Paula Deen is a hoot!”
In another Twitter conversation about Deen’s diabetes, Billips allegedly referred to Deen’s food with the hashtag #buttercoatedbuttercookies.
Based on Billips’ tweets and his discovery practices, Deen’s lawyers asked the court to disqualify him from continuing to represent Jackson. As the August 23 court order shows, the judge declined to disqualify Billips, but it was open to imposing some form of sanctions against him. The judge has indicated that the settlement will not stop the court from sanctioning Billips despite Deen’s lawyers attempt to withdraw their sanctions motion in light of the settlement. Billips has 20 days as of Friday to show why he should not be sanctioned.
This cautionary tale that teaches litigants (and their attorneys) not to discuss pending cases on social media. Posts on social networks like Facebook and Twitter can be publicly accessible, are potentially discoverable, and can be the basis for a defamation lawsuit. There’s little to be gained and much to lose by talking about a lawsuit online. For that reason, lawyers now commonly instruct their clients in their retainer agreements not to discuss the case with anyone on social media, even family and friends. Lawyers would do well to follow their own advice.
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.