Thursday, July 2, 2009

Eater LA sorry for posting anonymous tip on bar, but can The Must track down tipster?

Tuesday I posted about an item in LA food blog Eater LA that accused a bar called The Must of serving substandard cheese and "not adhering to simple food safety standards." Today Eater LA apologized:
We ran this tip without contacting the owners of the restaurant, who have since refuted the tip in its entirety. We apologize to the owners of the restaurant, and our readers, for not investigating our source's claims before airing them on the site. The resulting post didn't rise to our standards, and we shouldn't have published it.
Well, good for Eater for acknowledging the error of its ways. The original post with the apparently false allegation, however, remains up -- and, as I explained, assuming that Section 230 of the Communications Decency Act applies here (which I consider highly likely), The Must can't sue Eater, or force the site to take down the offending post. That remains true even if The Must can prove beyond all doubt that the allegations were false. (Yes, Section 230 is a very strong law, which even the California Supreme Court recognized has "disturbing implications.")

As I also said, Section 230 does not bar a defamation suit against whoever supplied Eater with the tip. But the problem for The Must is that it may turn out to be difficult or impossible to identify the tipster. The Must could file a "Doe" suit, and then take depositions and issue subpoenas to try to ID the actual culprit. There has been speculation that the tipster was a former employee of The Must; they could call in their former employees for depositions and ask them, one by one, if they know who dunnit. But they all might answer, "I dunno, wasn't me."

Of course The Must could also ask Eater LA to give up its source. But The Must would run straight into brick walls called Article I, § 2(b) of the California Constitution and California Evidence Code § 1070 -- better known as the California Reporters' Shield Law. Under the shield law, California journalists (including those who work for online news outlets) cannot be forced to give up their sources or unpublished information in a state civil case, which is what a potential libel suit over the Eater LA post would be.

So it seems unlikely that the The Must would be able to find much vindication in the courts. Hopefully they can take some comfort knowing that, judging from the reaction among Eater's own commenters, The Must has come out smelling like a rose, and Eater like a fetid pile of month-old Humboldt Fog.

: This seems like a good solution too.


  1. Hey, I think Humboldt Fog smells wonderful! The stinkier the better. Regardless, I found your two posts on Eater LA's situation to be fascinating. Thanks for your input!

  2. @Nancy:

    Thanks very much. But after a month? Surely fetid by then...

  3. hi. i'm interested in your take on the eater issue. your understanding may be better than mine. here's mine:
    if the post was made by a third-party (i.e., someone who logged on to the site, posted, logged off) eater has absolute protection under section 230. however, i thought eater (as a business entity) could be held responsible for posts its employees made on its site. that would include comments submitted (via e-mail) by a third party, then posted by eater employees. which i thought was the case here. please correct me if i'm wrong.

  4. @Anonymous 8:12:

    I think you are partly right and partly wrong.

    You are definitely correct that if an Eater employee writes something him or herself, then Eater is liable -- no Section 230 immunity.

    However, in this case, the tipster -- not the Eater employee -- is the "information content provider" under Section 230(c)(1), and therefore Eater isn't liable.

    A 9th Circuit case called Batzel v. Smith held that a service provider's "choice to publish [an] e-mail (while rejecting other e-mails for inclusion...)" did not remove the service provider's Section 230 immunity.

  5. thank you so much for answering my question. that is great information.


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