Tuesday, December 22, 2009

Court: 'no recourse' for victims of defamatory postings under Section 230

Sir William Blackstone, who knew a thing or two about the law, wrote in his Commentaries on the Laws of England:
[I]t is a general and indisputable rule that where there is a legal right, there is also a legal remedy by suit or action at law whenever that right is invaded.
Or, as Chief Justice Marshall similarly put it in Marbury v. Madison:
The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury.
Clearly, neither Blackstone nor Marshall had ever encountered Section 230 of the Communications Decency Act. For, as a federal court in Chicago held yesterday, the statute that shields web sites from liability for defamatory posts by their users can indeed result in situations where there is no remedy for speech adjudged to be defamatory, and thus outside the protections of the First Amendment. See, e.g., Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974) ("there is no constitutional value in false statements of fact").

Here's the case, Blockowicz v. Williams, in a nutshell:

1) Defendants posted allegedly defamatory statements about plaintiffs on several sites, including Facebook, MySpace, and a site called Ripoff Report, which bills itself as follows:
Ripoff Report® is a worldwide consumer reporting Web site and publication, by consumers, for consumers, to file and document complaints about companies or individuals. While we encourage and even require authors to only file truthful reports, Ripoff Report does not guarantee that all reports are authentic or accurate.
2) Plaintiffs sued the individuals who posted the statements for defamation. (A suit against the sites would have been DOA under Section 230.)

3) Defendants failed to defend themselves in court, so the court issued a default judgment in plaintiffs' favor, as well as an injunction ordering defendants to remove the postings from the sites at issue. Plaintiffs couldn't contact defendants to enforce the injunction. So they instead approached the sites and said essentially: "A federal court has adjudicated the statements about us on your site as defamatory. Please remove them." All obliged -- except for Ripoff Report.

4) Plaintiffs filed a motion to enforce the injunction against Ripoff Report, on the theory that the site, though not itself a defendant, had acted "in concert" with the defendants and thus, under FRCP 65(d)(2)(C), was equally bound by it.

5) The court rejected the "in concert" theory and, apologetically, refused to enjoin Ripoff Report:
The court is sympathetic to the Blockowiczs’ plight; they find themselves the subject of defamatory attacks on the internet yet seemingly have no recourse to have those statements removed from the public view. Nevertheless, Congress has narrowly defined the boundaries for courts to enjoin third parties, and the court does not find that [Ripoff Report] falls within those limited conscriptions based on the facts presented here.
So the bottom line is that the court was utterly powerless to grant the plaintiffs an effective remedy against harmful speech that has no First Amendment value. That's probably the correct result under the statute and the case law explicating it. But I can't imagine Congress would have enacted Section 230 back in 1996 if it knew this would be the result. Or did they disagree with Chief Justice Marshall when he wrote, "The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right."?

(H/T to Prof. Eric Goldman. Goldman usually argues for a very expansive reading of Section 230, but the Blockowicz opinion troubles even him; he writes that the "normative issues are still gnawing at me" and concedes that, "In some circumstances, continued publication may not be the right result.")

UPDATE: I've had a very interesting email exchange with David Gingras, general counsel of Xcentric Ventures, LLC, which operates Ripoff Report. I've invited him to do a full guest post to give his perspective on the issues raised by this case. In the meantime, he graciously provided me with the papers relevant to the order I discuss above; these flesh out the issues and go into greater detail about the parties' respective arguments.

1) Letter From Plaintiffs' Counsel to Ripoff Report and Complaint

2) Motion for Third Party Enforcement

3) Ripoff Report Response

4) Declaration of Ed Magedson, Ripoff Report founder and editor

5) Plaintiffs' Reply

6) Ripoff Report's Sur-Reply

7) Plaintiffs' Sur-Reply

UPDATE II: Techdirt argues that this case demonstrates a "problem ... with the default judgment process" but not Section 230. That's wrong. While it's true that default can sometimes result in anomalies, the problem with Section 230 that this case highlights has nothing to do with default. To illustrate, imagine a different case: Defendant posts allegedly defamatory material on site. Plaintiff sues defendant. Defendant shows up to defend himself (i.e., there's no default). After a full trial on the merits, the court (either judge or jury) determines that defendant defamed plaintiff. The court then orders Defendant to remove the post (which it may do consistent with the First Amendment). But when defendant asks the site to take down the post, the site refuses, saying its policy is never to take anything down. (Or, say, the site is based in Mongolia, has no US presence, and couldn't give a whit about a US court case.) In such a case, again, there's no way to force removal of the defamatory material, because of Section 230. I highly doubt that's an outcome Congress anticipated when it enacted the CDA, or would embrace today.


  1. Can the Blockowicz's subpoena Ripoff Report for the information they'd need to find the posters?

    If so, this ruling seems correct -- if, after subpoena, RR refuses to turn over the info, they'd have a separate cause of action against RR (or at least, the court issuing the subpoena would).

    If RR is unable to identify the offending users, then the result seems wrong...

  2. On the other hand, as I learned when I took Equities in the 70's: When there is no remedy, there is no wrong.

    I think defamation common law should yield to the 1st Amendment and that web sites should be treated as "press." Ripoff Report includes a disclaimer as to accuracy and any reader knows, or should know, that all comments may or may not be truthful. The Plaintiffs remedy is against the original poster, not the web site. The Plaintiff can also post his own version of the facts.

    The government (acting through a court) should not regulate content.

    And for those who think that the action of a court is not government action, see Shelley v. Kraemer 1948.

  3. "So the bottom line is that the court was utterly powerless to grant the plaintiffs an effective remedy against harmful speech that has no First Amendment value."

    But the court was really really sorry about it, and that counts for something, right?

    "When there is no remedy, there is no wrong."

    But what if the court goes against precedent and declares that there is no remedy?

    Why do people insist that There Is Something Different About The Internet? It's just communication, the same as newspapers or telephones or yelling out the window. The same rules apply.

  4. @halojones-fan:

    "Why do people insist that There Is Something Different About The Internet?"

    Because Section 230 says there ARE different rules for the Internet. The same rules do NOT apply. If the printed "Ripoff Report Times" ran a user submission that defamed someone, there's no question that, under the common law, it would be liable. But Ripoffreport.com runs the exact same submission, and Section 230 provides it virtually absolute immunity, even after a court adjudicates the content as defamatory.

  5. Goldman doesn't allow comments, so I'll comment here:

    "I'm troubled that online content could be categorically off-limits from compelled takedown based on a service provider’s choices. In some circumstances, continued publication may not be the right result."

    Well, yes, but don't we see megabytes of blog posts about Draconian DMCA Takedown By Youtube After Minor Pointless Dumb Complaint By Insignificant Clinging-To-Outdated-Business-Model Copyright Holder? Wouldn't this court decision seem to be in line with that thinking?

  6. "Because Section 230 says there ARE different rules for the Internet."

    *sigh* well then I guess we're just screwed.

    On the other hand, this means that there's now a clear incentive to never, EVER use your real name on the internet!

  7. Folks,

    I am general counsel for www.RipoffReport.com and I was the person who briefed this matter. I also sent the ruling to Prof. Goldman so he could use it to further the discussion on these important issues.

    Although Prof. Goldman attached the actual ruling to his blog, few people seem to have actually read it before forming opinions about the result. To clear up any misimpressions -- the ruling WAS NOT based on the CDA in any way. Thus, the headline of this page is completely wrong. In fact, if you read the decision, you'll note the judge expressly declined to decide whether the CDA protected Ripoff Report.

    Instead, the judge's decision was based solely on the well-settled rule that an injunction against Party X is not binding on non-parties. If anyone feels this is wrong, they need to read the briefs (available on PACER) to understand the legal issues before they disagree with the outcome.

    Also, while this page does not mention the facts of the case, it's also important to understand that there were three postings involved in the case, and two of those were not primarily about the plaintiffs (they were about the plaintiffs' daughter), and they were posted in 2003. Thus, when the plaintiffs sued in 2009, any claims based on those statements were likely barred by the 1-year statute of limitations regardless of the CDA.

    While I respect everyone's right to disagree with the ruling here, I think people should reserve judgment until they take the time to read the decision so that they can reach an informed conclusion about whether the judge was right.

  8. @David Gingras:

    Thanks for your comment, but to say that "the ruling WAS NOT based on the CDA in any way" is highly misleading. Were it not for Section 230 of the CDA, the plaintiffs could have sued Ripoff Report directly, and, if the posts at issue were adjudged defamatory, the court could have ordered their removal. The plaintiffs did not sue Ripoff Report for the obvious reason that their claim would have been futile under Section 230. Thus their only recourse was to sue the posters themselves, and, as this opinion demonstrates, that was futile vis-à-vis Ripoff Report as well.

    Question for you: Why doesn't Ripoff Report -- like Facebook, MySpace, and the others -- do the right thing and remove the posts?

  9. It'll be interesting to see how this decision interacts with the Veoh ruling. It may become legally impossible to do anything about internet postings at all!

  10. @halojones-fan:

    There's no doctrinal connection between this and the Veoh ruling. Section 230 explicitly exempts IP claims (including copyright claims). The Veoh case was about the scope of the safe harbor under Section 512(c) of the DMCA, which only covers copyright claims.

  11. @Ben...

    They are likley doing this because they need the Press, whereas Myspace, Yahoo, FB, do not.

    I have never heard of the Ripoff Report and will not go to their site because of this story. Let's just hope they stay insiginificant, and close down in the near future.



  12. Blackstone promised a legal remedy for every legal wrong, but he did not promise money or satisfaction, or solvent responsible defendants. You got your default judgement, that is your legal remedy. Like most legal remedies it is not worth much in money or emotional balm.

    The internet is a means of communication, not a source of truth. The post office is not responsible for the content of letters, and web sites aren't responible for anything. Like your mom said: "consider the source".

    Life is tough, pull up your big boy pants.

  13. @Ben: I see.

    @Fat Man: Troll, troll, troll your boat, gently down the streeeeam...

  14. Does "liability" as defined in the Act necessarily include an injunction or order requiring removal of an offending post? I see congressional wisdom in limited/eliminating financial remedies against websites in such a situation---plaintiffs can get their money (if possible) from individuals. But I don't see why, necessarily, an order removing the offending language would constitute "liability."

  15. @Anonymous 10:04:

    The statute doesn't preclude "liability" per se. Rather, it says: "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." 47 USC Sec. 230(c)(1).

  16. 10:04 here again: I was not focused on subpara. 1, but I don't think that language necessarily changes the analysis. There is no reason an injunction or order to remove a post needs to be predicated on a finding that the provider was the "publisher or speaker" of the post. It would be sort of like an innocent purchaser of a stolen item being ordered to return the item despite not being involved with the underlying theft. Are there cases where a plaintiff sued in the same action both (a) the provider seeking only injunctive relief and (b) the speaker seeking injunctive relief and damages? I'd be surprised if a federal court tossed out the injunctive cause of action against the provider on CDA grounds.

    (Also, re: Mr. Gringras's point, I think an injunction/finding solely against the thief in my stolen item hypo would not be sufficient to support an injunction against the innocent purchaser under Rule 65, for similar reasons as the defamation case we're talking about here---the thief did not act in concert with the purchaser.)

  17. Perhaps some may view this as a "silly" question, but I have to wonder if other considerations may arise had this case been originally brought in state court?

    Clearly the COA's against the defaulting parties were based on state law. Clearly, merely because diversity jurisdiction is available is not in my view a basis by which a state court could sua sponte transfer the matter to a federal district court in the absence of a request by the original defendants.

    I ask this simply because I am interested in the interplay between state and federal law in matters to which Section 230 might pertain, and 230(E) seems to set the stage for such interplay.

    Can Congress be deemed by the rather casual language in Section 230 to have preempted the enforcement of a state court injunction?

    Yes, there may be issues concerning "who lives where", but what of the case where the plaintiff, defendant, and service provider all maintain a presence in a state sufficient for personal jurisdiction before a state tribunal?

  18. I regret that I didn't see this post when it first went up. Ben, I could not agree with you more!


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