Why you can't trust legal analysis that doesn't link to legal documents, part 437

Among the starkest lessons I've learned since I started this blog is this: Never write about a legal issue without reviewing the underlying legal documents. Don't write about a new lawsuit until you've read the complaint. Don't write about a motion unless you've read the briefs.

Today's example of what happens when this rule is ignored comes from UPI, which reported that actor Ron Livingston "is suing Wikipedia, saying the online encyclopedia's page about him incorrectly identifies him as gay." Techdirt dutifully followed the UPI report without any checking, declaring the suit "obviously dead-in-the-water" due to Section 230 of the Communications Decency Act.

One problem: Livingston didn't sue Wikipedia. As THR, Esq. -- an excellent publication that almost always does link to the legal documents it discusses -- accurately reported today, Livingston (technically his loan-out company) sued an unknown individual who allegedly impersonated Livingston online and posted accusations that he is gay on Wikipedia and Facebook. The complaint includes claims for libel, false light, and violations of Livingston's statutory and common-law right of publicity, and seeks actual and punitive damages. Presumably Livingston will seek discovery (IP and email addresses and other identifying information) from Wikipedia and Facebook, which he hopes will identify the poster. Livingston can then name the individual in the complaint, and proceed against him. Section 230 won't protect the individual; it only shields the service (i.e., Wikipedia or Facebook) that hosted the material.
Complaint in Coupleguys, Inc. v. John Doe

There are a few interesting issues buried in this lawsuit. First, is it defamatory to falsely label someone as gay? It's a very interesting issue; obviously many people don't like being falsely called gay, but some gay rights activists argue that to permit a defamation action for a false accusation of homosexuality perpetuates the harmful notion that there is something wrong, or shameful, about being gay. Indeed, a New York federal court recently ruled that a false accusation of homosexuality is not defamatory per se. (I haven't researched this question under California law, which I assume will apply here; feel free to weigh in in the comments with relevant citations.)

Second, is what alleged here really a right of publicity violation? I'm skeptical. There are no allegations that the poster had any commercial purpose; the complaint seems to alleged that he was simply engaged in some sort of malicious prank. While the cases in this area aren't terribly consistent, I tend not to think that right of publicity is the correct claim here.

Third, this case once again demonstrates the awesome power of Section 230. Livingston didn't sue Wikipedia or Facebook because Section 230 clearly protects them here, at least on the libel and false light claims. (Whether the right of publicity claim is a "law pertaining to intellectual property" and thus outside the scope of Section 230's protections, see 47 U.S.C. 230(e)(2), is a tougher question. Compare Perfect 10, Inc. v. CC Bill LLC, 488 F.3d 1102 (9th Cir. 2007) (state IP claims not immunized under Section 230), with Doe v. Friendfinder Network, Inc., 540 F.Supp.2d 288 (D.N.H. 2008) (state IP claims immunized under Section 230).) But let's assume Livingston wins; the court agrees that the statements are defamatory and infringe his right of publicity, and awards him money. That doesn't solve the problem that's really bugging him: that people are saying false things about him on the web. Under Section 230, the court cannot order a site to remove defamatory content it didn't create, even after it's been determined definitively that the content infringes the plaintiff's rights. The court could, presumably, order the defendant to remove the content he has posted (though the complaint does not specifically request this remedy). But what if the site won't permit that? Or what if another bozo re-posts the same material? Or what if, despite the best efforts of Livingston's attorneys, they can't find whoever posted the offending content? Or what if he's dead? Section 230 means he has no effective recourse, and the false information may remain there forever.

Maybe that's an acceptable result, necessary to preserve free speech on the Internet. But whatever the case, I doubt it's a result Congress intended when it passed the CDA back in 1996.

Update: make sure to read Sam Bayard's analysis of the issue whether it's defamatory to falsely call someone gay. "[T]he courts appear to be split, but it is hard to say for sure because of the evolving nature of the inquiry," he concludes in his post at the Citizen Media Law Center site.

Also, still no correction at Techdirt's post, which continues to claim, falsely, that Livingston sued Wikipedia. The post's subhed mocks Livingston's attorneys for supposedly failing to do "research,-research,-research." That, in a post that failed to do even one "research," and that continues to report false information, even after acknowledging in an "update" that a commenter alerted the author to the error. "Updates" are to report new developments; errors demand plain, old-fashioned "corrections."