Recently in Section 230 Category

One Yelp Review = One Publication

August 29, 2014,

Once upon a time, each separate copy of a defamatory statement was considered a separate publication, giving rise to a separate cause of action for defamation. Back then, if a defamatory article was published in a newspaper and the newspaper printed a million copies, the plaintiff could argue successfully that he had been defamed a million times. That is no longer the law, at least not in Virginia. Take Yelp reviews. If a new cause of action was created each time a consumer clicked a link leading to a defamatory review, the one-year statute of limitations would potentially never expire. Such a rule would likely allow plaintiffs to endlessly harass defendants by filing a new lawsuit with each new click. For reasons like these, Virginia follows the "single publication rule," which treats an online post as a single publication despite the fact that it may be read over and over again by different people all over the world. The number of views may be relevant to assessing the plaintiff's damages, but does not re-start the running of the statute of limitations or create new causes of action.

A Virginia law firm learned this lesson recently in Westlake Legal Group v. Yelp and Christopher Schumacher. Mr. Schumacher hired Westlake attorney Thomas K. Plofchan, Jr., back in 2009 and, according to his Yelp review, was not pleased with the representation he received. His review, posted on July 7, 2009, accused Westlake of "blatant incompetence and lying" and of having "a history of messing up cases." Westlake sued for defamation, not only against Mr. Schumacher, but against Yelp itself. The firm did not file the lawsuit, however, until May 11, 2012, well after the one-year limitations period had expired.

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Ripoff Report Maintains Section 230 Immunity Despite Lawyer's Novel Challenges

April 7, 2014,

Concerns that freedom of online speech would be chilled if Internet Service Providers were liable for allegedly defamatory remarks made by posters to their sites led Congress to pass the Communications Decency Act (the "CDA"). The CDA shields companies serving as intermediaries for other parties' potentially injurious speech from tort liability arising from users' comments. Section 230 of the CDA 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." Although the CDA is interpreted broadly in light of Congress' intent in passing the statute, an interactive computer service provider remains liable for its own speech.

To benefit from CDA immunity, (1) the defendant must be a provider or user of an interactive computer service; (2) the plaintiff's claim must be based on information provided by another information content provider; and (3) the claim must treat the defendant as the publisher or speaker of the allegedly harmful speech. In Small Justice LLC v. Xcentric Ventures LLC, a federal court in Massachusetts found that Ripoff Report should not lose its CDA immunity even if it was found to have copyright ownership of the allegedly defamatory content, and even if, as the plaintiff alleged, it "intentionally caused...two defamatory per se publications to be prominently and frequently featured on Google...and other search engines."

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Not Every Website Is Entitled to Section 230 Immunity

June 13, 2013,

Section 230(c)(1) of the Communications Decency Act is intended to immunize providers of interactive computer services against liability arising from content created by third parties. Under Section 230, most Internet services will not be liable for false or defamatory material published on their sites so long as the information was created by another party. Although this statute provides website operators with a strong defense against defamation claims and other torts, a motion to dismiss is not a sure thing, at least not here in Virginia.

Section 230 applies to providers and users of an "interactive computer service," but does not protect information content providers. If a website provides both functions, it will not be immune from liability. In Nasser v. WhitePages, Inc., the Western District of Virginia held that discovery would be required before the court could determine whether WhitePages was entitled to Section 230 immunity. Santa Clara University law professor Eric Goldman, who writes frequently about the protections of the Communications Decency Act, has sharply criticized the ruling as "overly cautious."

Michael Nasser filed an emotional distress and nuisance action against WhitePages, Inc., alleging that WhitePages incorrectly listed his phone number as that of "Comcast Phone of Virginia," resulting in thousands of unwanted phone calls intended for Comcast. Nasser made numerous requests to remove the listings, but the listings remained on WhitePages' website for approximately sixteen months. Nasser alleged that he had to seek http.jpgmedical treatment for various issues because of the unwanted calls, and he sought $500,000 in compensatory and punitive damages for intentional and negligent infliction of emotional distress and nuisance.

WhitePages moved to dismiss Nasser's complaint for failure to state a claim. The magistrate judge recommended that the motion be granted based on Section 230 immunity. District Judge Michael F. Urbanski, however, rejected the recommendation, finding that additional facts were needed to determine WhitePages functioned as an information content provider to which Section 230 does not apply.

The court found that the record did not permit it to determine how WhitePages functions and whether it qualifies as an interactive computer service, an information content provider, or both. Additionally, factual issues existed as to whether WhitePages was responsible for developing Nasser's information in a way that would disqualify it from Section 230 immunity. Unlike other cases in which the Section 230 issue had been resolved on the pleadings, this case contained a factual dispute regarding application of Section 230, and more factual development was necessary as to the operation of the WhitePages website in order to determine whether Section 230 applied. The court ordered the parties to address three factual issues: (1) whether WhitePages is an interactive computer service; (2) whether WhitePages is an information content provider; and (3) whether WhitePages was responsible for the development of the incorrect telephone listings.

The court emphasized that parties should deal with Section 230 immunity early on in litigation as Section 230 protects websites from expensive litigation. Still, the court ruled that on the facts before it, the issue would be more appropriately resolved on summary judgment than in a motion to dismiss.

Section 230 Immunizes Users Who Link to Defamatory Statements of Others

August 27, 2012,

Under § 230(c)(1) of the Communications Decency Act (47 U.S.C. § 230(c)), "No 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." Federal courts in Virginia have held that § 230 creates federal immunity to any cause of action that would make service providers (as opposed to content providers) liable for information originating with a third-party user of the service. For example, Section 230 has been found to bar claims for defamation, tortious interference with business expectancy, and trademark infringement. In Directory Assistants, Inc. v. Supermedia, LLC, the court clarified that Section 230 immunity applies not only to providers but also to users.

Directory Assistants is an advertising consulting agency that helps businesses advertise in yellow page directories. SuperMedia also sells advertising solutions. Directory Assistants had been the subject of allegedly false and defamatory postings on consumer review websites such as RipOffReport.com, ScamInformer.com, and YellowPages.com. According to Directory Assistants, SuperMedia sent an email to a prospective customer that included links to the allegedly defamatory postings. Directory Assistants sued SuperMedia for defamation, and SuperMedia moved to dismiss, arguing protection under Section 230.

Reviewing relevant case law and the statutory language, the court found that Section 230 protects users equally as it does providers, and it held that although a person who creates unlawful content may be held liable, a user of 230.jpgan interactive computer service who finds and forwards via e-mail content that others have posted online in an interactive computer service is immune from liability.

The court then examined whether the websites providing the various reports in the instant case qualified as interactive computer services and whether SuperMedia qualified as a user under the statute. The complaint alleged that RipOffReport and the other websites allowed many people access to a portal on the internet to post information about products and services. Courts have ruled that these types of websites are not internet content providers because they do not create the content that is posted.

Unlike some other federal decisions, the court applied a dictionary definition to the term "user," interpreting it to mean "someone who uses." The court found that SuperMedia, by going to websites like RipOffReport, reading postings and compiling links to these posts in an email, was "using" an interactive computer service. Therefore, the court held that SuperMedia was entitled to Section 230 immunity from defamation liability.

In its conclusion, the court noted that if Directory Assistants had some evidence that SuperMedia had a hand in creating the allegedly defamatory posts, it may have had a case, but current case law does not allow downstream users of content created by others to be held liable for defamatory statements.

Defamatory Forum Posts Held No Basis for Host Liability

September 2, 2009,

Worried about liability for statements made by others in an online forum hosted by your website? Provided you don't take an active role in editing the content posted by others, you shouldn't have to worry about defamation liability. The Communications Decency Act ("CDA"), found at 47 U.S.C. § 230, provides that "No 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." It further provides that "No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section."

In the still-pending case of Cornelius v. DeLuca, filed in the Eastern District of Missouri, the plaintiffs, sellers of a dietary supplement called "Syntrax," sued various competitors for libel and tortious interference with business expectancies, and also sued the owners of bodybuilding.com--a website containing a forum for Internet discussion by the public--for supposedly assisting the other defendants post false and defamatory statements to the forum. In essence, the plaintiffs tried to get around the CDA by claiming the host of the forum wasn't a mere "provider" but an active participant in a conspiracy to post libelous, defamatory statements concerning the plaintiff's product. The court rejected the argument and dismissed the conspiracy count.

Under the CDA, while content providers cannot be held liable for the statements of others, they can be held liable for their own statements (which is why providers need to be careful not to edit others' statements, thereby arguably adopting the statement as DigiGlobe.jpgtheir own). It is undoubtedly for this reason that the plaintiffs, realizing full well that the owners of bodybuilding.com did not make the statements at issue themselves, alleged that the owners conspired with the actual authors to allow the statements to be posted.

What the plaintiffs failed to do is present actual facts demonstrating the existence of a conspiracy. (To survive a motion to dismiss, a plaintiff must allege more than a mere formulaic recitation of the elements of a cause of action; he must allege facts that, if proven, would support the existence of the claimed cause of action.) The complaint at issue alleged no facts regarding the website owners' conduct other than the fact that they operated the message board, thereby "allowing" the allegedly defamatory statements to be published. No details were alleged concerning the details of the supposed conspiracy. The court held that, in light of the CDA, this was not enough.