More Defendants Lose 230 Defense

June 5, 2007 · by · in Derivative Liability

By Eric Goldman

On the heels of the Roommates.com train wreck, two more defendants have had their 47 USC 230 defenses rejected. Interestingly, both cases come out of Tennessee federal courts in the Sixth Circuit–not normally known as a problem circuit for 230.

1) Energy Automation Systems, Inc. v. Xcentric Ventures, LLC, 2007 WL 1557202 (M.D. Tenn. May 25, 2007). Xcentric Ventures, a/k/a the Rip-off Report, a/k/a Bad Business Bureau, a/k/a Ed Magedson’s alter ego, is no stranger to this blog (see, e.g., Hy Cite Corp. v. badbusinessbureau.com, Whitney Information Network v. Xcentric Ventures, RSA Enterprises v. Bad Business Bureau and my remarks in the Phoenix New Times article). Indeed, they now occupy the rarefied position of being a multi-time loser of a 230 defense–although, to be fair, 230 isn’t totally lost in this case.

Here, the plaintiff sued for defamation and other claims, and the defendant responded 230 in a motion to dismiss for lack of jurisdiction (12b2). The court said that any 230 immunity for liability did not extend to create immunity from jurisdiction, and the court refused to convert the motion into a 12b6 motion to dismiss. The result is that the plaintiff can now seek discovery in a case that otherwise could be preempted by 230. For a similar result, see Doctor’s Associates v. QIP Holders; in that post, I point to other precedent expressly using 230 to shut down discovery fishing expeditions.

I don’t have a problem with saying that 230 isn’t responsive to a 12b2 motion, but the judge should have gone straight for the 12b6 motion, which I think should generally result in a defense win. However, with the Rip-off Report, there have been plenty of allegations that Magedson writes the content himself rather than parrotting other people’s content, and those allegations should survive a 12b6 motion.

2) Avery v. Idleaire Technologies Corp., 2007 WL 1574269 (E.D.Tenn. May 29, 2007). This is an employment discrimination lawsuit brought by an employee against a former employer. At the facility in question, all of the employees shared a single computer. (Hard to believe in this era of cheap computers, isn’t it?!). According to the plaintiff, when she used this shared computer, she was exposed to porn pop-ups constantly, and there was plenty of evidence that the computer was regularly used to access porn. The defendant tried to dismiss the hostile work environment claim per 47 USC 230. The applicable discussion:

IdleAire argues that “by its own terms, the section prohibits any federal or state claim that seeks to hold an employer that provides computer systems to its employees for use on the job from being held liable based upon the content of the information ‘provided by another information content provider.’ “ [Doc. 81 at 40]. The defendant cites no authority for this proposition, and the Court is not aware of any such authority. Indeed, the Court is not aware of any federal case in the country that has applied this Act in such a manner, and the Court declines to do so now.

I think this is the right result, but it would have been nice to see the court discuss Delfino v. Agilent, which held that an employer could claim 230 for an employee’s actions. I was dubious that other courts would follow the Delfino precedent, as this case illustrates.