No Liability for Providing User-Selected Category Tags–Whitney v. Xcentric

By Eric Goldman

Whitney Information Network v. Xcentric Ventures, No. 2:04-cv-47-FtM-34SPC (M.D. Fla. Feb. 15, 2008)

On remand from the 11th Circuit, the district court once again found that 47 USC 230 protects Rip-off Report and related entities from a defamation claim based on user-submitted reports.

This is the third time I’ve blogged on this case. The first time, in 2005, the district court dismissed the defendants per 230 with leave to amend. The plaintiffs amended their complaint and the district court dismissed it for lack of jurisdiction. In 2006, the 11th Circuit reversed the district court’s jurisdictional dismissal, restoring the case and making it ripe for another substantive dismissal by the district court on 230 grounds, which the court grants here.

The plaintiffs try the typical arguments to get around 230, so the opinion is similar to numerous other 230 defense wins. However, the opinion is distinctive in its analysis of the Ninth Circuit panel opinion in the Roommates.com case. Because the opinion was vacated by the en banc grant and almost certainly will be superseded by a new opinion in the near future, this opinion probably will be one of the only judicial discussions of the original panel’s opinion.

The court specifically evaluates Kozinski’s “harassthem.com” hypothetical. A number of people have speculated that Kozinski was describing the Rip-off Report in the example, but this court rejects the analogy to Rip-off Report as “dicta” that “bears little resemblance to the ROR website.”

The good news kept coming for the Rip-off Report defendants, as the judge gave them a number of other breaks:

1) the court repeatedly criticizes and distinguishes the MCW v. badbusinessbureau precedent, one of the very few bona fide defense losses under 230.

2) on the question of whether Magedson or other Rip-off Report folks write the published reports putatively submitted by their users, the court received numerous declarations from these individuals that they do not. To rebut this, the plaintiffs introduced a deposition from another case where a gentleman named Dickson Woodard (the purported submitter of a report) gave sworn testimony that Magedson created reports and titles. Some judges might have let that deposition create a triable issue of fact, but this judge rejects it because it does not provide any evidence of authorship of the allegedly defamatory reports at issue in this case.

3) even though Rip-off Report asks users to tag their reports with pre-set terms that might be considered defamatory, the court doesn’t attribute those tags to Rip-off Report:

the mere fact that Xcentric provides categories from which a poster must make a selection in order to submit a report on the ROR website is not sufficient to treat Defendants as information content providers of the reports about WIN that contain the “con artists”, “corrupt companies”, and “false TV advertisements” categories….Rather, the authors of the postings made the decision to select these categories to describe WIN.

In all, this is another terrific win for Rip-off Report. However, given the plaintiffs’ track record, it wouldn’t be surprising if this case ends up in the 11th Circuit’s lap again.

Finally, the ruling (along with reports from the 7th Cir. hearing in the Craigslist case) provides some more evidence that other judges aren’t convinced by the original Roommates.com opinion, meaning that perhaps that case won’t be the turning point in 230 jurisprudence we feared.

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