libel – Attorney Evan Brown

August 24, 2020 Contracts

Is a website liable for leaving up content that violates its terms of service?

In a recent post, we discussed how Section 230 protected a website from liability for trade libel. The court held that third parties, and not the website itself, provided the offending posts. If the court had believed the posts were written by the site itself (or one of its agents) that may have turned the site into an information content provider and thus outside Section 230’s protections.

Terms of service violation?

This case – East Coast Test Prep LLC v. Allnurses.com, Inc. – had some other interesting aspects of interest to website operators seeking to effectively regulate content. For example, plaintiff claimed the website breached its own terms of service by failing to take down content prohibited by those terms of service. And the site allegedly breached its terms by closing a discussion thread, denying plaintiff the opportunity to respond to libelous content. The court dismissed plaintiff’s breach of contract claims.

The website’s terms stated, in relevant part, that users were not allowed to post libelous information. And it said the site operator would immediately take down content violating the law or invading another’s privacy. The terms also said that the website promoted the “idea of lively debate”.

What the plaintiff claimed

When the site refused to take down the offending content, plaintiff (a member of the site who had agreed to the terms of service) claimed the site violated the terms of service. And he claimed that the site breached the terms by not allowing him to comment, thereby going against the site’s commitment to foster the “idea of lively debate”.

The court rejected these breach of contract claims. It held that defendant did not promise to identify and immediately remove any and all potentially false statements. Instead, it disallowed users from posting libelous information and merely informed users that it would remove illegal or inappropriate posts. And the statement that defendant promoted the idea of a lively debate was not a promise to keep the site’s discussion threads open, particularly in light of the provision that “[p]roblematic posts/threads may be deleted or closed.”

East Coast Test Prep LLC v. Allnurses.com, Inc., — F.3d —, 2020 WL 4809911 (8th Cir. August 19, 2020)

Let’s talk!

Evan Brown is a Chicago technology and intellectual property attorney. Call Evan at (630) 362-7237, send email to ebrown [at] internetcases.com, or follow him on Twitter @internetcases. Read Evan’s other blog, UDRP Tracker, for information about domain name disputes.

July 5, 2017 Defamation, First Amendment, Unfair Competition

Reports to advertisers about website content were protected speech

Plaintiff sued defendant in California state court for trade libel and other business torts over confidential reports that defendant provided to its customers (who advertised on plaintiff’s website) characterizing plaintiff’s websites as associated with copyright infringement and adult content.

Defendant moved to dismiss under California’s anti-SLAPP statute which, among other things, protects speech that is a matter of public concern. The trial court granted the anti-SLAPP motion. Plaintiff sought review. On appeal, the court affirmed the anti-SLAPP dismissal.

The court held that the communications concerning plaintiff’s websites (as being associated with intellectual property infringement or adult content) were matters of public concern, even though the communications were not public.

FilmOn.com v. DoubleVerify, Inc., 2017 WL 2807911 (Cal. Ct. App., June 29, 2017)

About the Author: Evan Brown is a Chicago technology and intellectual property attorney. Call Evan at (630) 362-7237, send email to ebrown [at] internetcases.com, or follow him on Twitter @internetcases. Read Evan’s other blog, UDRP Tracker, for information about domain name disputes.

October 2, 2010 Anonymity, Defamation, Section 230

Section 230 shields Google from liability for anonymous defamation

Black v. Google Inc., 2010 WL 3746474 (N.D.Cal. September 20, 2010)

Back in August, the U.S. District Court for the Northern District of California dismissed a lawsuit against Google brought by two pro se plaintiffs, holding that the action was barred under the immunity provisions of 47 USC 230. That section says 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.” Plaintiffs had complained about a comment on Google (probably a review) disparaging their roofing business.

Plaintiffs filed and “objection” to the dismissal, which the court read as a motion to alter or amend under Fed. R. Civ. P. 59. The court denied plaintiffs’ motion.

In their “objection,” plaintiffs claimed — apparently without much support — that Congress did not intend Section 230 to apply in situations involving anonymous speech. The court did not buy this argument.

The court looked to the Ninth Circuit case of Carafano v. Metrosplash as an example of a website operator protected under Section 230 from liability for anonymous content: “To be sure, the website [in Carafano] provided neutral tools, which the anonymous dastard used to publish the libel, but the website did absolutely nothing to encourage the posting of defamatory content.” As in Carafano, Google was a passive conduit and could not be liable for failing to detect and remove the allegedly defamatory content.

Tag: libel