Tuesday, June 30, 2009

Section 230 and the case of the (allegedly) cheapo cheese

The LA foodblogging world is all a-Twitter over a post in the popular Eater LA.

The Eater LA post re-prints an email from a tipster, whose identity the blog does not reveal, accusing a Downtown wine bar called The Must of surreptitiously serving cheapo cheese from a low-quality supplier, and various hygiene-related misdeeds. The Must's owners vigorously dispute the allegations, and told the LA Times that they "have receipts to prove it." And, says the Times, they are "angry enough to threaten...Eater LA with legal action."

Assuming that the charges are indeed false, I completely sympathize with The Must's owners in their anger at Eater LA, which apparently did not even contact them before publishing. But even if the allegations are libelous, it's doubtful The Must could win a suit against the blog. Here's why:

Section 230 of the Communications Decency Act provides virtually airtight immunity from defamation suits for web sites that re-publish material provided by others. It's why the LA Times is protected from suits over reader comments posted below its articles, and Craigslist can't be held legally accountable for running hooker ads. In a case called Barrett v. Rosenthal, the California Supreme Court made clear that the act of re-posting an email on a web site is immunized by Section 230 -- even though it acknowledged that protecting "those who intentionally redistribute defamatory statements on the Internet" has "disturbing implications." The victim's remedy, said the court, is to sue the person who actually made the allegedly defamatory statement.

There's one wrinkle that might -- and I emphasize might -- possibly trip up Eater LA, despite Section 230. Eater LA can certainly be held liable for its own words. And the Eater LA blogger did write this:
Owner Coly Haan once described her menu as "white trash food with a twist," apparently now it's erring more on the "trash" side.
Is the second reference to "trash" defamatory in itself? Or can these words be characterized as incorporating by reference the allegedly defamatory statements by the anonymous tipster, thus converting statements originally made by the tipster into Eater LA's own? I'm skeptical on both points, though less than 100% sure.

So if The Must wants to sue, its best target is the tipster, not Eater LA. Happy hunting...


  1. There's definitely helpful precedent (Barrett and other cases, maybe Drudge v. AOL?) on Eater LA's side, but I think a few facts that might sway a court. I don't recall whether in Barrett the defendants exercised much editorial control or whether they just purely distributed via email and/or the web content from third parties. Here it seems like Eater LA exercised much more control and was not a passive conduit. I'm not very familiar with the site but it has a separate part of its site devoted to eater complaints. I can see this more likely to receive Section 230 protection (where Eater LA just passes on third party complaints on a regular basis). Here, there's just too much editorial control and participation in creation or "development" of the content.

    Eater LA could have also sourced the content - it labels the information as coming from a tipster but maybe it inquired or somehow encouraged the tipster.

    Other thoughts. The fact that Eater LA is blogging about possible bad acts and health code violations by the wine bar could help Eater LA. From a policy standpoint certainly we want to encourage people to bring this sort of stuff to light. Also, could it bring an anti-SLAPP motion maybe? Finally, I wonder if Eater LA could sue for injunctive relief and not damages. I'm not aware of any cases that have said Section 230 bars injunctive relief requiring content to be taken down.

    The comments to the post to me illustrate why a lawsuit may not be the best way to resolve this. It seems like the bulk of the commenters side with the wine bar, and many commenters talk about their experiences at the wine bar in glowing terms.

    Curious to see what happens!

  2. I meant to say "I wonder if Must" (not Eater LA) could sue for injunctive relief.

  3. @Venkat:

    In Barrett, the defendant did select the email to repost to newsgroups. She was no passive conduit.

    Section 230 applies to claims for injunctive relief as well as money damages. See Kathleen R. v. City of Livermore, 87 Cal. App. 4th 684, 697-98 (2001) ("[C]laims for declaratory and injunctive relief are no less causes of action than tort claims for damages and thus fall squarely within Section 230(e)(3) prohibitions.").

    In many Section 230 cases, there are facts that make the victim sympathetic, and the normal reaction to learning that the host or publication is immune is to say, "That can't be!" But the fact is that the statute provides extraordinarily broad immunity, and thus results in a lot of online defamation simply going unpunished.

  4. Congress enacted the "safe harbor" for internet service providers. Not internet content generators.

    Section has been warped to include persons who defame, as opposed to companies that merely transmit others defamations.

    The Circuit Courts have so far (surprise surprise) protected the large corporations that own the content generators.

    And because a libertarian "new media" attitude is all the rage, Internet advocates support their unfettered ability to libel, slander, defame and damage with impunity.

    If the courts continue to interpret Section 230 as a blanket license to lie, then Section 230 must be changed. But the current interpretation of the safe harbor provision is wrong.


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