Monday, December 7, 2009

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."


  1. Thanks for your post about the Ron Livingston lawsuit. I've been spending way too much time looking for information on this topic.

    This has actually been going on much longer than Livingston's people realize -- or say publicly in their complaint.

    Also, it seems the folks at Wikipedia Review -- who also were the first ones to discover the essjay scandal (Essjay was a major wikipedia editor who was found to have provided false information about his credentials), have also been doing some research on it.

    It seems that the person/persons the Livingston article and setting up the Facebook account have been doing this for a much longer time than 2009, and using more than Wikipedia and Facebook to make these claims. They also seemed to have tracked down who is the person responsible for it -- maybe, since there seems to be a whole web of lies/fraud going on, including fake casting director websites and a Bed and Breakfast in France whose quality or even existence cannot be ascertained for sure. You can follow along here:

    Beyond that, I have two questions that it might be interesting to hear answers from you.

    1) How is this different from the LaRussa twitter lawsuit? The media that has reported on this so far has focused on Wikipedia (which is mentioned less than Facebook in the lawsuit) and the "gay relationship" aspect (which isn't directly mentioned either beyond "a relationship with a man named..") of this, but, LaRussa sued twitter for basically the same thing, didn't he? And, while the suit was ridiculed and eventually settled out of court, Twitter now has its verified accounts system. Although Wikipedia is mentioned, since the Wikipedia editing on the Livingston page has been going along since well before this May, it seems Livingston's people were far more worried about the false Facebook account than Wikipedia? Wouldn't it have been better to follow the LaRussa way and try to get Facebook to change its way of handling accounts?

    2) If the person who is behind these rumors is not actually in the US, but in Europe, (as it looks like from the other sites such as this one: would that change the consequences for the person if Livingston's people decide to sue in that person's home country?

    PS I tried to send this to you by email, but gmail is not accepting mail from the address you listed on this site.

  2. This is a frequent mistake. News reports often confuse the difference between suing someone and moving for permission to issue a nonparty subpoena to that person.

  3. Personally, I am of the opinion (as are some of my associates) that "no effective recourse, and the false information may remain there forever" is absolutely NOT an acceptable result, necessary to preserve free speech on the Internet. "Free speech" does not include and protect "anonymous defamation".

    We chartered a non-profit organization, the Internet Review Corporation, and we discuss these and other issues at

    A particularly useful introduction is found at:

    Thank you for evaluating this suit, Ben.

  4. Ben, you raise some excellent hypothetical questions here, particularly "what if wiki won't remove" the materials if the defendant is ordered to do some. I have found Google to be a not-very-nice corporate citizen when it comes to libel and bullying through However, I have to give them kudos in the scenario you describe. In several cases where the libelous authors have been positively identified, and where client obtained injunctive relief, we have been able to ask Google to remove the material from their index as if Google was specifically ordered to do so (even non-Google webpages). The other search engines have done likewise. And as we all know, if you can't find a website on Google, it may as well not exist.

    Michael Roberts of Rexxfield
    (Bloger Bounty Hunter :)

  5. Not only is it not a result that Congress intended, it's probably the opposite result. The 230 safe harbor was, I believe, partially a response to a DC District Court case in which a message board advertised itself as offering a family-friendly environment, and the Court found them liable precisely b/c they had decided to exercise some editorial control over the postings. So the safe harbor was designed to encourage websites to feel free to edit or take down offensive material, not to enable them to refuse to remove it. In fact, the prevailing judicial interpretation of 230 probably encourages websites like AutoAdmit and Juicy Campus to pop up precisely b/c of the absolute immunity it offers (save for the 4 exceptions outlined in the statute). And 230(c)(2) really should have included some sort of affirmative duty to take down or at least evaluate egregious material.

    The 230 cases are all over the map in a really unhelpful way. We have cases that say if you quote part of an email then you're a speaker, much in the same way that old school defamation law works. Why Congress completely neglected to talk about distributor liability v. speaker liability, I have no idea. You would think they'd want to have done a better job at defining when along the continuum an ISP or whoever moves from being a mere conduit of information into an actor that looks a lot like a speaker. Because they didn't you get cases like the Blumenthal v. Drudge case in which AOL was able to get out of liability even though he was essentially a columnist. It's pretty batty stuff.

  6. You realize of course that if it weren't for the lawsuit Ron Livingston would be just a footnote in our celebrity-obsessed culture. I have asked 10 people, none have any idea who he is or care.

  7. He clearly hadn't checked out the Wikipedia entry for the Streisand Effect...

  8. Update... the case shouldn't have to use the "John Doe" name much longer:


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