December 24, 2008
Stress-Relieving Company Gets Anti-SLAPPed Per 230
By Eric Goldman
If you're a 47 USC 230 junkie like me, there are few better Christmas gifts than a nice defense-side 47 USC 230 win. So just when I thought I was done blogging for the holidays, this goodie appears in my satchel. Ho ho ho!
Maybe I'm overcome by the holiday feeling, but I naively assume that a company selling products to help "customers relieve stress, reduce anxiety, and achieve emotional balance and spiritual enlightenment though meditation techniques” wouldn't need to use tough litigation tactics. But this lawsuit belies my utopianism. Can't we all just get in touch with our chakras?
The plaintiff is in the stress-relieving business. The defendants all have some connection to SOTT.net, a/k/a "Sign of the Times," a website that describes itself as "The World for People Who Think." Depending on your definition of "think," they should have either a very large or very small audience, but a few moments poking around the site left me baffled about their editorial focus. (Pictures like this one are interesting and slightly disturbing, but I don't quite understand the message). Their "quick guide" isn't very quick and doesn't do much to guide me, but I get a vague sense that the site may occasionally dabble in conspiracy theories.
OK, back to the lawsuit. Laura Knight-Jadczyk is the key defendant in this lawsuit. In response to some anonymous postings on an SOTT.net message board, Laura allegedly posted disparaging comments about the plaintiff (HBI) to the website, including alleged assertions (quoting from the court's opinion) "that “HBI is a ‘front for pedophilia;’ HBI is a “cointelpro” organization; HBI markets nothing more than an act of “falling into confluence with a psychopathic reality;” and HBI is “conning” the public." Other SOTT.net forum moderators also posted some allegedly defamatory material. The plaintiff sued Laura plus:
* her employer, QFG
* QFS, a think-tank operated by QFG
* the SOTT.net website. Laura pays the website's expenses and the domain name is owned by her husband
The plaintiff alleged that these parties fund each other's activities and share a common physical location. The plaintiff does not appear to have sued the anonymous posters who contributed to the allegedly defamatory discourse.
This opinion rules on the defendants' joint anti-SLAPP motion. The court grants the motion for Laura because the assertions were her protected opinions and for the other defendants per 47 USC 230.
The court establishes the defendants' two required elements of Oregon's anti-SLAPP statute:
* "Website forum pages allowing users to read and post comments free of charge constitute a public forum under the anti-SLAPP statute."
* "There is no doubt that the statements here were made in connection with an issue of public interest, specifically, the quality of HBI's products and services developed by Pepin [HBI's co-founder]."
With these two points established, the burden shifts to the plaintiff to establish its prima facie case. Laura is the putative tortfeasor, so QFG, QFS and SOTT all claim 47 USC 230 for her postings. The plaintiff responded that these parties are alter egos of Laura, but the court rejects that assertion: "Notwithstanding significant links between Knight-Jadczyk, QFG, QFS, and SOTT that indicate some measure of control over general operations, plaintiff fails to show control over the specific conduct at issue that is required to find QFG, QFS, and SOTT alter egos or instrumentalities of Knight-Jadczyk."
The plaintiff also argued that some of the forum moderators were QFS employees, but the court says that the plaintiff failed to make the requisite evidentiary showing. As a result, all of the forum moderators are third parties for 47 USC 230 purposes, and the defendants aren't liable for their postings either.
In addition to validating that robust online message board discussions can be protected and evidencing the power of anti-SLAPP motions to quickly quash unmeritorious lawsuits, this opinion reinforces that:
1) Website operators aren't liable for the work or postings of independent forum moderators. This is consistent with the recent Best Western v. Furber case.
2) Employers can claim 47 USC 230 protection for employee actions that they do not control. This reminds me a little of the Delfino v. Agilent case.
3) Attempts to get around 47 USC 230 by alleging that the defendants are “alter egos” of each other are unlikely to work, just like the “aiding and abetting” pleadaround also fails.
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