I hope that you all had a thankful and fulfilling turkey day. Your friendly neighborhood technology legal counsel stuffed himself horrendously. But, I digress. I know that I owe you all part 2 of my discussion of the legal landscape of corporate blogging, and I promise that I will get that posted in the near future, but two recent opinions in some non-Indiana Internet litigation piqued my interest and I had to talk about them. Both rulings involve application of the liability protection portion of the Communication Decency Act ("CDA"), 47 USC 230. Neither of these rulings are precedential, but they do provide great insight into the on-going evolution of this area of law.
For those of you that don't know, Section 230 of the CDA "immunizes providers of interactive computer services against liability arising from content created by third parties." Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2009). It is basically Congress' way of fostering the on-going exchange of ideas between providers on the Internet without fear of repercussion of a party over which the provider has limited control. This is actually one of the parts of corporate blogging that I'll be discussing, because 230 provides protection against liability to bloggers. Needless to say, reviewing courts thus far have allowed 230 immunity to be a very large shield. But, one must ask, "how long will this last?" The answer is that, no one knows. But cases continue to come out that work to define the scope.
One recent ruling of interest is out of Arizona. In Kruska v. Perverted Justice Foundation Incorporated.Org, et. al., No. CV-08-00054, the plaintiff alleged five different causes of action against various entities: (1) intentional infliction of emotional distress; (2) defamation; (3) RICO; (4)cyberstalking / cyber-harassment; and (5) DMCA violations. One defendant, the web moderator, moved for dismissal under Federal Rule 12(b)(6) for a failure to state a claim, in light of immunity under 230. The Court gave a short analysis of the law and then concluded that Plaintiff had alleged in her Amended Complaint that Defendant had contributed defamatory content. The Court reasoned that with that allegation of contribution, Plaintiff successfully pled her way around a motion to dismiss.
This case has a lot of nuances from a legal standpoint, but ultimately, I think the Court while correct in its ruling, was really only forestalling the inevitable. The plaintiff did plead enough to overcome a motion to dismiss under T.R. 12(B)(6), but ultimately, the defendant's actions are going to fall within 230 immunity. The Court has really only prolonged the expenditure to both parties. But, I think the case is significant for two reasons. First, the case illustrates that plaintiff's attorneys are starting to get wise to the pitfall of 230 and how to avoid it (at least long enough to result in continued litigation and cost). The foresight to plead around 230 will result in a greater number of cases being tried past the motion to dismiss, which, in many cases, is all a plaintiff needs to get some settlement and make the case worthwhile. Second, I think this cases illustrates that Internet and technology litigation is becoming more and more mainstream, or at least mainstream enough to make attorneys take note of how to circumvent it.
The second case that I found interesting is out of New Jersey. In Mitan v. A. Neumann & Associates, LLC, et al., No. 08-6154, the Court addressed the applicability of 230 to a forwarded e-mail that contained defamatory comments from the original sender. In that case, the defendant received an e-mail from another broker indicating that plaintiff's family were engaged in unsavory and illegal business practices. Defendant then forwarded this message onto several contacts with some comments of his own. The plaintiff, a member of the Mitan family that was not specifically referenced and had not engaged in unsavory dealings, filed a suit for libel. Defendant moved for summary judgment based on 230 immunity and the district court agreed. The Court reasoned that the defendant was not the "information content provider" in that he did not create the underlying e-mail that contained the defamatory content. He was merely a downstream user that hit forward on his computer. Of course, I think this ruling may have been different had the defendant included new defamatory content on his forwarded e-mail, but in this case, that didn't happen.
The important take away of this case is that Court's are likely to look at your actions to assess your culpability and the applicability of 230 immunity. Simply forwarding something, even if the underlying content is defamatory, is likely to be immune, Participating and perpetuating defamatory content such that you have become a "bad actor" in your own right is likely not going to be protected. Thus, when forwarding e-mails about others, be careful to keep your words sweet, in case you have to eat them later.
For those of you that don't know, Section 230 of the CDA "immunizes providers of interactive computer services against liability arising from content created by third parties." Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2009). It is basically Congress' way of fostering the on-going exchange of ideas between providers on the Internet without fear of repercussion of a party over which the provider has limited control. This is actually one of the parts of corporate blogging that I'll be discussing, because 230 provides protection against liability to bloggers. Needless to say, reviewing courts thus far have allowed 230 immunity to be a very large shield. But, one must ask, "how long will this last?" The answer is that, no one knows. But cases continue to come out that work to define the scope.
One recent ruling of interest is out of Arizona. In Kruska v. Perverted Justice Foundation Incorporated.Org, et. al., No. CV-08-00054, the plaintiff alleged five different causes of action against various entities: (1) intentional infliction of emotional distress; (2) defamation; (3) RICO; (4)cyberstalking / cyber-harassment; and (5) DMCA violations. One defendant, the web moderator, moved for dismissal under Federal Rule 12(b)(6) for a failure to state a claim, in light of immunity under 230. The Court gave a short analysis of the law and then concluded that Plaintiff had alleged in her Amended Complaint that Defendant had contributed defamatory content. The Court reasoned that with that allegation of contribution, Plaintiff successfully pled her way around a motion to dismiss.
This case has a lot of nuances from a legal standpoint, but ultimately, I think the Court while correct in its ruling, was really only forestalling the inevitable. The plaintiff did plead enough to overcome a motion to dismiss under T.R. 12(B)(6), but ultimately, the defendant's actions are going to fall within 230 immunity. The Court has really only prolonged the expenditure to both parties. But, I think the case is significant for two reasons. First, the case illustrates that plaintiff's attorneys are starting to get wise to the pitfall of 230 and how to avoid it (at least long enough to result in continued litigation and cost). The foresight to plead around 230 will result in a greater number of cases being tried past the motion to dismiss, which, in many cases, is all a plaintiff needs to get some settlement and make the case worthwhile. Second, I think this cases illustrates that Internet and technology litigation is becoming more and more mainstream, or at least mainstream enough to make attorneys take note of how to circumvent it.
The second case that I found interesting is out of New Jersey. In Mitan v. A. Neumann & Associates, LLC, et al., No. 08-6154, the Court addressed the applicability of 230 to a forwarded e-mail that contained defamatory comments from the original sender. In that case, the defendant received an e-mail from another broker indicating that plaintiff's family were engaged in unsavory and illegal business practices. Defendant then forwarded this message onto several contacts with some comments of his own. The plaintiff, a member of the Mitan family that was not specifically referenced and had not engaged in unsavory dealings, filed a suit for libel. Defendant moved for summary judgment based on 230 immunity and the district court agreed. The Court reasoned that the defendant was not the "information content provider" in that he did not create the underlying e-mail that contained the defamatory content. He was merely a downstream user that hit forward on his computer. Of course, I think this ruling may have been different had the defendant included new defamatory content on his forwarded e-mail, but in this case, that didn't happen.
The important take away of this case is that Court's are likely to look at your actions to assess your culpability and the applicability of 230 immunity. Simply forwarding something, even if the underlying content is defamatory, is likely to be immune, Participating and perpetuating defamatory content such that you have become a "bad actor" in your own right is likely not going to be protected. Thus, when forwarding e-mails about others, be careful to keep your words sweet, in case you have to eat them later.
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