Republishing Solicited Email May Not Qualify for 47 USC 230 Immunization–Woodhull v. Meinel

By Eric Goldman

Woodhull v. Meinel, 2008 WL 5663874 (N.M. App. Ct. Oct. 24, 2008). This one just showed up in my Westlaw alerts; not sure why it took so long. The NM Supreme Court denied cert Jan. 7, 2009.

The last time I blogged about an Internet decision from New Mexico, I wrote that I suspected “the New Mexico judicial system still doesn’t understand Internet technology very well.” Today’s case gives us further reason to be suspicious.

On its face, this appears to be a garden-variety defamation claim. The plaintiff, Angela Victoria Woodhull, claims that Carolyn Meinel, a blogger at “happyhacker.org” (and self-described “only over-50 woman hacker in the world”), posted two defamatory messages. The first post, in 2003, alleged that Woodhull had asked Meinel to illegally hack a site that had unflattering content about Woodhull. In 2006, Meinel posted about Woodhull again, recapping the 2003 incident and saying “that Defendant’s only recourse against Plaintiff for her alleged unlawful request was ‘to make fun of her on this website.’” The 2006 post also contained an email from a staff member at a University of Florida student newspaper, which Meinel had apparently asked if they had any dirt on Woodhull. The resulting email “contained details about a dispute between Plaintiff and the [student newspaper] related to whether a play by Plaintiff featured ‘dancing penises and condoms.’ Defendant additionally commented that further research revealed that Plaintiff had ‘been on America’s Funniest Home Videos’ and ‘says she is proud to be known as Wedgie Woman.’” The defamatory import of these emailed statements is not immediately clear to me, but maybe I’m missing something.

The court first addresses the statute of limitations issue. The court adopts the single publication rule for Internet postings, meaning that the SOL does not reset with every access of the web page. It also means that the SOL does not reset when other parts of the website are modified or even if technical modifications are made to the post. However, substantive modifications can reset the SOL, and the court says it’s up to a jury to decide if the 2006 post was a substantive modification of the initial 2003 post sufficient to reset the SOL on the 2003 post.

The court then moves on to the 47 USC 230 discussion. This should have been easy because the law is really, really clear. 47 USC 230 does not apply to the content authored by Meinel, but it unambiguously immunizes Meinel for reposting the third party email See Barrett v. Rosenthal, Batzel v. Smith, D’Alonzo, the multitudinous Ripoff Report cases, and many others.

Somehow the court misinterprets the precedent, saying that Meinel’s solicitation of the email and incorporation of the email into her larger post might negate the 230 immunization:

Instead of merely editing an email from a third party, Defendant apparently requested potentially defamatory material for her own stated purpose of “‘making fun of’ Plaintiff.” That material was incorporated into an overall larger posting containing her own thoughts and contributions….Therefore, Defendant’s actions could reasonably be viewed as going beyond what is protected by the CDA, exposing Defendant to potential liability as an original “information content provider.”

This conclusion might find some support in the Roommates.com en banc opinion, but the court does not cite Roommates.com at all. How in the world did the court miss the Roommates.com precedent??? The court does cite to Batzel several times, although I’m not clear what’s left of Batzel after the Roommates.com decision.

The court partially corrects its legal error by noting that the factfinder might view the single blog post as two discrete components–one protected by 230; the other not. Nevertheless, this means the defendant now has to win at trial instead of getting the quick and easy 230 dismissal.

We’ve seen a few other cases where plaintiffs have successfully overcome 230 as applied to third party content, but those opinions are extremely rare, which makes this case noteworthy on that basis alone. Even so, I’m going to chalk up this goofy ruling to New Mexico courts’ demonstrated struggles understanding Internet law. Especially in light of the opinion’s poor citation of the applicable precedent, I expect very few cases will follow in this court’s footsteps.