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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.

Direct link to the show

Shownotes:

This episode of the Internet Cases Podcast discusses the new FAIR USE Act of 2007, introduced in Congress last week. [Read the bill here.]

Thanks to Blandy who created the music you hear in the show, and who made it available under a Creative Commons license.

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).

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.

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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