November 10, 2009
A New Way to Bypass 47 USC 230? Default Injunctions and FRCP 65
By Eric Goldman
I recently got the following email from David Gingras, the relatively new General Counsel of the Ripoff Report (reposted with his permission):
"As you know, Ripoff Report has defended, and won, a lot of CDA cases in the past few years. Although we still get a new case every so often, plaintiffs and their lawyers seem to have gotten the message that lawsuits against us aren’t likely to prevail. Good news, I suppose.
Despite this, a new strategy is arising....In a nutshell, what seems to be happening is that defamation plaintiffs are no longer naming Ripoff Report as a party (which is good). Instead, they are going after the original author (also good, assuming the claim is legitimate).
However, something odd is happening – these cases almost always result in a default. Without any defendant there to argue otherwise, the courts seem willing to grant virtually any relief requested by the plaintiff; i.e. an injunction requiring the removal of the offending material. Once that happens, the plaintiff will approach Ripoff Report with their default injunction and demand that we remove whatever postings they ask us to, even when we were not a party to the case and even if the truth of the statements has never been litigated. Their argument tends to be that under FRCP 65, injunctions can be enforced against non-parties as long as they are acting in “active concert” with a party, so they simply claim we are acting in concert with the author, whatever that means.
In this scenario, it’s almost as if 47 USC s. 230 doesn’t exist at all. In other words, if you are a plaintiff seeking to remove a negative online posting, you’re not going to succeed with any claims against the site. However, that need not stop you – all you have to do is file a lawsuit against someone, claim they were the author, make sure they default, and then ask the court for an injunction (even if it affects a non-party) and voila! You have just accomplished your goals without even really trying!....
[I]t seems to me that if courts allow this type of thing to happen, then the CDA is essentially meaningless – by “litigating” the merits of the case against a non-existent defendant and then approaching Ripoff Report after-the-fact, a plaintiff can obtain relief that they would never be able to get in a legitimate adversarial proceeding, and we’re stuck trying to get the judge to put the genie back into the bottle.
Can plaintiffs use this tactic to get damages from a website/host? Well, not initially, but once you have an injunction requiring the removal of material from the site, the door is open to asking for contempt sanctions if the website doesn’t comply, and that could allow essentially unlimited damages – even when the original claims were time-barred (note: the statute of limitations is an affirmative defense which is waived if the defendant defaults), or even if the original postings were true.
...I am very concerned that this is the start of a new trend. Using a baseball analogy, it’s almost like the plaintiff takes the field alone, plays the game, declares itself the winner, and then finally tells the other team about the game. Should the umpires allow this? No, of course not, but what happens when they do?"
David's email raises a fascinating doctrinal question of the interaction between FRCP 65(d) and 47 USC 230, but I wonder how often these issues come up in the field. Ripoff Report is relatively unique among consumer review sites (and UGC sites generally) because it vows never to remove user postings, even if a user asks Ripoff Report to remove the post. In contrast, most UGC sites would speedily comply with a default injunction, no questions asked—especially if the user is not around to protest the takedown. Or the user folds in the face of a demand from a putative plaintiff and deletes the content him/herself, at which point the service provider doesn't even know there was a problem.
Nevertheless, I think David may be witnessing a new and cutting edge way to effectuate illegitimate content takedowns. Many websites that initially stand up for their users, emboldened by the 230 shield, will instantly crumble when presented with a default injunction. For the price of a complaint and a defendant’s default (which can be engineered by targeting a phantom author), plaintiffs obtain an effective cudgel to excise unwanted content throughout the web. Because this could become a cost-effective way of suppressing socially valuable critical content, I encourage UGC sites to be circumspect about honoring default injunctions against user content.
If a UGC site chooses to contest a default injunction, 47 USC 230 should trump FRCP 65. FRCP 65(d) applies to non-litigants in "active concert or participation" with the defendant. Typically, the only relationship between the content producer/defendant and a UGC website is that the website is republishing the defendant’s content. 230 preempts any effort to treat a website as the publisher of third party content, and I think that’s exactly what FRCP 65(d) does.
Now, if a court has properly adjudicated some content as tortious or illegal, it would be socially desirable for the website to remove the content. This is why a court orders the injunction in the first place. However, David’s example assumes an incomplete adjudication because of the default. So if a website contests a default injunction against user-supplied content, a court should do a more thorough evaluation of the plaintiff’s merits. If the court concludes—following a properly contested proceeding—that the injunction was in fact appropriate, only then should the publisher be compelled to remove the content.
Unfortunately, most judges will expect websites to honor a default injunction without question, and therefore they will be reluctant to reconsider the injunction’s merits. Apropos of that, David sent me a report of a hearing from last week involving Ripoff Report's effort to contest a FRCP 65 default injunction. He says that the "judge was apparently ‘incredulous’ at our position – [wondering] why can’t we just agree to take the postings down?" Nevertheless, the judge gave Ripoff Report a chance to brief the matter. I’ll be interested to see if Ripoff Report can make any headway with the skeptical judge. Whatever you think about Ripoff Report generally, I applaud their efforts to defend their users’ words and ensure judicial accuracy rather than rolling over like most UGC sites would.
Posted by Eric at November 10, 2009 11:50 AM | Derivative Liability
TrackBack URL for this entry: