Category: Defamation

GTX Global Corp. v. Left, No. B192626, 2007 WL 1300065 (Cal.App. 2 Dist. May 4, 2007)

Andrew Left publishes the blog stocklemon.com, and in 2005, he made a couple of posts critical about plaintiff GTX. In turn, GTX sued Left for invasion of privacy and defamation. At the trial court level, Left moved to strike the complaint under California’s Anti-SLAPP statute [Code of Civil Procedure section 425.16], and the court threw out the case. GTX sought review with the California Court of Appeal, which affirmed the trial court’s dismissal.

When a defendant files an Anti-SLAPP motion in California, the court first considers whether the plaintiff’s cause of action arises from any act of the defendant’s taken in furtherance of that defendant’s right of petition or free speech. If the court finds the defendant has made the threshold showing, it then determines whether the plaintiff has demonstrated a probability of prevailing on its claim.

In this case, there were a number of statements made on the Stocklemon blog which GTX claimed were false and defamatory, including allegations that the company was headed by a convicted felon, and engages in stock fraud.

The court held that these statements arose from an act taken in furtherance of Left’s right of free speech, and that GTX had failed to establish a probability of prevailing on its claims. It held that for purposes of the Anti-SLAPP statute, the website was to be considered a public forum. But the public forum status of the place where the statements were made was not determinative — the court also held that the statements were connected with an issue of public interest.

In determining that GTX had failed to demonstrate a likelihood of prevailing on its claim, the court found that GTX had “adduced no evidentiary support for any of its causes of action.” The plaintiff did not “identify a single piece of evidence to support its allegations that defendant’s challenged statements were false or otherwise defamatory.”

Accordingly, the court affirmed the dismissal of the action against Left, and awarded Left the attorney’s fees he had incurred, both at the trial court level and on appeal.

In the past week, two important courts, the U.S. District Court for the Northern District of Illinois, and the Supreme Court of California, have issued opinions examining the contours of the immunity provided under the Communications Decency Act at 47 U.S.C. 230. That section provides, among other things, that “[n]o provider or user of any interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Although both cases were defense victories, the two courts gave different treatment to Section 230 in their reading of the statute and in their interpretation of the leading case on point.

CLC v. Craigslist

On November 14, 2006, the Northern District of Illinois issued its decision in the case of CLC v. Craigslist [No. 06-657]. In that case, a Chicago-based nonprofit organization had filed suit against Craigslist, asserting that the popular site should be held liable under the Fair Housing Act for the publication of certain discriminatory online advertisements for apartment rentals.

In a 28 page decision, the court held that Craigslist could not be liable for any discriminatory postings, because to impose such liability “would be to treat Craigslist as if it were the publisher of third-party content, [and] the plain language of Section 230(c) forecloses [the] cause of action.”

But in the process of arriving at that conclusion, Judge St. Eve gave a thorough rundown of Section 230 immunity, taking a close and critical look at what the court called the “fountainhead” of Section 230 immunity, the Fourth Circuit’s decision in Zeran v. America Online, 129 F.3d 327 (4th Cir. 1997).

Despite the wide acceptance that the case has enjoyed over the past decade, Judge St. Eve “respectfully declin[ed] to follow Zeran’s lead.” She identified three problems with its holding. First, Zeran overstated the plain language of the statute when it held that Section 230 creates a federal immunity to any cause of action that would make service providers liable for information originating with third party users of the service. Secondly, the court found Zeran’s holding to be internally inconsistent. Third, the court noted that application of the statute would be problematic, inasmuch as the policy of encouraging providers of online computer services to police for objectionable content is at odds with the immunity that would attach to providers that choose to do nothing to filter objectionable content.

In the end, Judge St. Eve’s observations about Zeran were merely dicta, as the court ultimately held that Craigslist was entitled to the publisher immunity provided for by Section 230. What’s more, the court aptly observed (notwithstanding the rough treatment of Zeran), that plaintiffs in cases against interactive computer services attempting to hold them liable for content provided by others will still have “a tough road [sic.] to hoe.”

More on the CLC v. Craigslist case. [Kevin Thompson]

Barret v. Rosenthal

In a much anticipated ruling, the California Supreme Court handed down its decision on November 20, 2006 in the case of Barret v. Rosenthal. In this case, the state Supreme Court overturned the Court of Appeal, and, in contrast to the court in the Craigslist case, heartily endorsed the Zeran holding. (“We conclude that the Zeran court’s construction of the term ‘publisher’ is sound.”)

At issue in the Barret case was whether the defendant Rosenthal could be liable for defamatory content contained in an article written by another party, which she posted to a message board. The court examined whether, given the circumstances, Rosenthal should be considered a “user” of an interactive computer service as provided for in Section 230(c) and thus subject to immunity. The court answered that question in the affirmative.

The heavy endorsement of Zeran came in rejecting the Court of Appeal’s distinction between distributor and publisher liability. The Court of Appeal (as had the plaintiff in Zeran), reasoned that Section 230 might not foreclose liability for one in Rosenthal’s position as a distributor of defamatory content. But the Supreme Court held that the distinction was one without a difference in the modern online publishing context, and that “distributor” is encompassed within “publisher” as the term is used in Section 230.

More on the Barret v. Rosenthal case. [Eric Goldman]

A Lance Corporal in the United States Marine Corps was killed in the line of duty while conducting combat operations in Iraq in March of 2006. Members of the outspoken Westboro Baptist Church (“WBC”) attended the Marine’s funeral, uninvited, to express their views against homosexuality, Catholocism, and the military. On one of its websites, WBC also posted a number of extremely inflammatory statements (which will not be repeated here) about the deceased Marine’s parents.

In response to these statements, the parents filed suit agaisnt WBC and its pastor for defamation and a number of privacy-related torts. The defendants moved to dismiss, arguing, among other things, that the plaintiffs had failed to adequately plead a cause of action for defamation.

The court denied the motion to dismiss, holding that the complaint sufficiently alleged the requisite elements of defamation under Maryland law: (1) that the defendant made a defamatory communication to a third person, (2) that the statement was false, (3) that the defendant was at fault in communicating the statement, and (4) that the plaintiffs suffered harm.

One of WBC’s arguments that the court rejected was that the alleged defamatory speech was protected under the First Amendment, and within the ambit of the Supreme Court’s decision in Hustler Magazine v. Falwell, 485 U.S. 46 (1988). WBC had argued that the statements were merely opinions, and could not amount to defamation. The court found Hustler Magazine easily distinguishable, where there was nothing in the record to suggest that the plaintiffs were public figures.

Snyder v. Phelps, No. 06-1389, 2006 WL 3081106 (D.Md., October 30, 2006).

Plaintiff Whitney Information Network sued the owners of the infamous Ripoffreport.com and other sites over some negative postings about Whitney appearing online. In July 2005, the U.S. District Court for the Middle District of Florida dismissed Whitney’s complaint, holding that the defendants were immune from defamation liability under provisions of the Communications Decency Act found at 47 U.S.C. §230. [Read more about that decision.]

Apparently recognizing the challenges presented by Section 230, 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,” Whitney filed an amended complaint. This time it alleged that the defendants played an active role in generating the complained-of content by revising benign third party postings to add words like “ripoff,” “dishonest,” and “scam.”

The defendants moved to dismiss, arguing a lack of personal jurisdiction for Whitney’s failure to satisfy the requirements of Florida’s long arm statute (Fla. Stat. §48.193). That statute provides, among other things, that a Florida court can exercise personal jurisdiction over an out of state defendant if that defendant commits a tortious act within the state. This can be done, for example, through electronic communications into the state. Wendt v. Horowitz, 822 So.2d 1252 (Fla. 2002).

The defendants did not dispute that the amended complaint successfully alleged active participation on their part in generating the alleged defamatory content. But in connection with their motion to dismiss, they submitted a couple of affidavits, including one from a technological consultant named Smith, which they claimed controverted the plaintiff’s allegations supporting jurisdiction.

These affidavits tended to support the defendants’ argument that they were not responsible for modifying any postings made to their sites. If they were merely the provider of the interactive computer service, and not the actual content provider, so they argued, Section 230 immunized them from tort liability. Without tort liability, there could not be any tortious conduct directed to the state. No tortious conduct directed to the state, no personal jurisdiction under the long arm statute.

The district court bought this clever argument, holding that the affidavits put the burden back on the plaintiff to come forward with more evidence supporting the exercise of personal jurisdiction. In the district court’s mind, the plaintiffs failed to meet that burden, so it dismissed the case.

But the Eleventh Circuit disagreed. It reversed and remanded the lower court’s dismissal, holding that the defendants’ affidavits, with which they tried to make themselves something other than content providers, were insufficient to shift the burden in the first place.

For example, although Smith (the technological consultant) stated that none of the postings’ IP addresses were associated with the defendants’ computers, he conceded that he was unable to obtain IP addresses for three of the complained-of postings. The defendants were trying to show that they were not responsible for tampering with any of the content. But the court saw through that argument, observing also that it was unclear whether the defendants’ own IP addresses would have shown up had they merely modified any of the postings, rather than create them.

For these reasons, the appellate court held that the defendants had not successfully rebutted the plaintiff’s allegations supporting the exercise of jurisdiction pursuant to the Florida long arm statute. It remanded for further proceedings on the question of whether the exercise of personal jurisdiction would comport with constitutional due process.

Whitney Information Network, Inc. v. Xcentric Ventures, LLC (Slip Op.) 2006 WL 2243041 (August 1, 2006).

We don’t know yet. But probably not.

The headline to this article from law.com is a bit misleading. It reads, “Judge: Bloggers Entitled to Immunity Under Communications Act.” While that is probably true, the case that the article covers did not address the defendant’s status as a blogger. Yes, the defendant Tucker Max has a blog, but the alleged defamatory comments at issue in the case were posted to a message board, not as a blog post or blog comments. The case is called Dimeo v. Max, (Slip Op.) 2006 WL 1490098 (E.D. Pa., 2006).

So the case really wasn’t much different from a lot of other cases applying 47 U.S.C. 230 to communications posted online. The leading case on Section 230 immunity, Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997) provided immunity to AOL for messages posted to a forum board. More recently, courts have found message board operators protected under Section 230 in cases such as Donato v. Moldow and Roskowski v. Corvallis Police Officers’ Association.

Section 230(c) 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.” As far as I know, there have not yet been any reported court decisions addressing the question of whether Section 230 immunity applies to bloggers. We came pretty close to seeing the issue addressed earlier this year with the case of TrafficPower.com v. Seobook.com in a federal court in Nevada, but that case was dismissed for lack of personal jurisdiction. [Read Eric Goldman’s coverage of that case.]

Updated to add: The plaintiff Warren Kremer Paino Advertising has voluntarily withdrawn its lawsuit against defendant Lance Dutson. From Ronald Coleman: “They didn’t expect pushback — much less pushback from the whole ‘blogosphere,’ with lawyers lining up to defend the little guy. The handwriting was on the wall. Or the screen, I guess.” [More info here]

A number of InternetCases.com readers have e-mailed me asking about the recently-filed defamation case against Maine blogger Lance Dutson. The case is called Warren Kremer Paino Advertising, LLC v. Dutson and has been filed in the U.S. District Court for the District of Maine.

Here’s just about everything you need to know about the legal issues in the case: there is nothing new under the sun … but the defendant is a blogger.

As I emphasized a couple of weeks ago when I spoke on the topic of blogging and defamation, the traditional principles of defamation law apply with equal force in the blogosphere. Just because a defendant is a blogger does not mean he or she is held to a stricter or more lenient standard than a speaker in the brick-and-mortar world.

Under Maine law, which the Federal court hearing the case will have to apply, a successful defamation plaintiff must prove that (1) the defendant made a false and defamatory statement concerning the plaintiff, which was contained in (2) an unprivileged publication to a third party, (3) that the defendant was at least negligent in making the statement, and (4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication. Lester v. Powers, 596 A.2d 65 (Me. 1991).

Because the subject matter of the alleged defamatory postings involves a matter of public concern (e.g., accusations of misappropriated tax revenue), the plaintiff will have to prove that the statements contained in the postings were made with “actual malice.” This heightened standard for matters of public concern has its origins in the landmark Supreme Court cases of New York Times v. Sullivan, 376 U.S. 254 (1964) and Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).

Although one should not lose sight of the fact that there really is nothing unique about the legal issues in an online defamation claim, the allure of a blogger-defendant is undeniable. The democratizing aspect of blogs as media naturally elicits all kinds of First Amendment and root-for-the-underdog sentiments. Attorney Ron Coleman, who is assisting in Dutson’s defense, observes,

“Most defamation claims are brought for the simple purpose of intimidating defendants who can’t afford lawyers. Historically, therefore, media outlets have made it their business to find a way financially to keep lawyers on retainers. That’s not true of bloggers — at least not yet. Until then, bloggers can count on the good offices of public-spirited [law] firms … and the coordinating and legal contributions of fellow bloggers at the Media Bloggers Association.”

In any event, one fact in the case could yield some entertainment value if it is the subject of a motion. You may recall that mere opinions are not actionable as defamatory. One of the allegations in the case is that Dutson defamed the plaintiff when he wrote that it was “pissing away” taxpayer money. It would be enlightening to read the court’s analysis on the question of whether that statement “communicates [a] factual proposition susceptible of proof or refutation.”