July 31, 2005
Milwaukee Radio Station Settles 47 USC 230 Lawsuit
The Journal-Sentinel reports today that WTMJ-AM settled a libel lawsuit that appeared to be directly covered by 47 USC 230. A talk radio host, Charlie Sykes, received an email from a listener and then reposted the letter on his blog. The letter contained factual errors, and Sykes quickly deleted it. Nevertheless, the radio station was sued.
Based on the newspaper report, this case should have been an easy case to win on a motion to dismiss (like so many other 47 USC 230 cases). Instead, the radio station settled the case for $5,000, basically the nuisance value of a lawsuit like this.
When I was at Epinions, it would have almost always cost $5,000 or more to file the motion to dismiss, so as a rational actor it would be cheaper to pay the $5,000 settlement than to file the motion to dismiss. Nevertheless, we didn't settle these cases during my tenure, in part because we needed plaintiffs to understand that there was zero economic upside to complaining about something covered by 47 USC 230. I guess the radio station didn't feel as strongly about this as we did.
How Many Errors Can We Find in the Article?
Unfortunately, like far too many stories about 47 USC 230, the remainder of the article is garbled/riddled with errors. Consider the following passage:
"The judicial interpretation of the Communication Decency Act continues to evolve. No cases have made it to the U.S. Supreme Court or even to a federal Court of Appeals. State courts of appeal that have ruled on the issue have consistently ruled in the manner Katsaros described - except for one in California.
In that case, the appeals court ruled that someone who knows information is false but posts it anyway can be held legally responsible. The case is now pending before the California Supreme Court."
How many errors can we spot in this passage???
1) There have been at least 7 federal appeals court cases interpreting 47 USC 230, including Batzel, Ben Ezra, Carafano, Doe v. GTE, Green, Noah (the appeals court didn't reference 47 USC 230 but affirmed on the grounds relied upon the district court), and of course, Zeran. The defendant has won every single one (except, arguably Batzel).
2) Though it is correct that the US Supreme Court has not weighed in on 47 USC 230, they have denied cert in at least four cases (Zeran, Ben Ezra, Batzel and Doe v. AOL).
It may also be worth noting that the Florida Supreme Court has weighed in on 47 USC 230 (Doe v. AOL; another victory for defendants). We also had the funky procedural dismissal of Grace v. eBay by the Cal. Supreme Ct.
3) It appears that the reporter was referring to the Barrett v. Rosenthal case when the article referenced the case pending in front of Cal. Supreme Ct. Unquestionably, we're all watching this case closely, but this case is not the only one that has suggested that distributor liability survived 47 USC 230--others include:
* Grace v. eBay (until the CA. Supreme Ct. wiped the lower court opinion away)
* MCW v. badbusinessbureau
* dicta in the Doe v. GTE case.
There were some other lower court losses that were reversed on appeal, and there's dicta in other cases too. Nevertheless, I continue to characterize these cases as the distinct minority given the very substantial precedent on the other side.
4) Incredibly, the story does not address the most applicable case of all--Batzel v. Smith, which is a "blog law" case. In Batzel, a blog operator received a letter on the topic of his blog and then reposted the letter to the blog. In determining the applicability of 47 USC 230, the 9th circuit said the sender's motivation was important. If the sender intended the correspodence to be private, then the republication would not be covered by 47 USC 230 (in effect, the blog operator becomes the information content provider at that point). Otherwise, if the correspondence was intended for forwarding to the blog, then 47 USC 230 applies.
(Note that the OptInRealBig case is along these lines as well).
In the Charlie Sykes situation, we don't know the sender's intent, although the newspaper characterization seems to suggest that it was not intended to be private--in which case the Batzel precedent would suggest that this is covered by 47 USC 230 and a motion to dismiss would have been successful regardless of any other facts.
The story makes another major mistake in a different passage:
"The current state of the law protects them because right now, the less editing you do, the less liable you are.
"If you substantively edit or comment, you are responsible," Rothberg said."
This is wrong wrong wrong. This statement represents old-media law, not cyberlaw. The whole point of 47 USC 230 is that the website's editorial control is irrelevant, so there is no sliding scale of editorial control in cyberlaw like there is in media law. Indeed, I can think of about a half-dozen cases directly contrary to this proposition regarding substantive editing: Blumenthal v. Drudge, Carafano (not directly on point, but hard to read the case any other way), Donato, Ramey, Schneider, Whitney Information Services and Zeran (not directly on point, but pretty clear on this topic). I think a number of other cases would easily stretch to cover the proposition (the Noah case comes to mind).
The only precedent directly contrary to this point is the MCW v. badbusinessbureau case, although one might point to dicta in a case like Roskowski. So under current interpretations of 47 USC 230, the amount of editing done by the ICS does not affect liability.
Meanwhile, I can't think of any 47 USC 230 cases where commenting on third party content affected liability either way. But in general, given the breadth and power of 47 USC 230, commenting on third party content should be 100% irrelevant to liability.
I remain frustrated with highly inaccurate stories like this one that portray 47 USC 230 as unsettled. Tt's not. If an online website republishes third party content (other than copyrighted material), the online publisher isn't liable. End Of Story...defendant's motion to dismiss granted.
Unfortunately, stories like the Journal-Sentinel's continue to encourage plaintiffs to bring lawsuits that are ultimately wasteful and fruitless. I continue to hope that plaintiffs get the message and spend their time on more useful endeavors, but misleading stories prevent plaintiffs from fully comprehending the real state of the law.
Posted by Eric at July 31, 2005 10:47 AM | Derivative Liability