August 05, 2010
Web Host Gets Easy 47 USC 230 Win in Catfight--Johnson v. Arden
By Eric Goldman
I've been looking at over-the-top cute kitty pictures all morning. Just try to suppress the "aahs" on a page like this. I'm on cute overload! But there's nothing cute about litigating 230-preempted claims to the Eighth Circuit.
This lawsuit involves the breeding and sale of Persian and Himalayan cats and related "designer" cross-breeds. “Cozy Kitten Cattery,” run by the Johnsons in Missouri, allege that Heineman, a former business associate now affiliated with BoutiqueKittens.com, and Lowry, whose relationship with the Johnsons isn't clear, both posted allegedly defamatory comments about the Cozy Kitten Cattery business to ComplaintsBoard (run by Arden), which InMotion hosts. (A quick perusal of ComplaintsBoard reveals that cattery-related complaints are disturbingly common.) The plaintiffs filed suit against all of these folks and others, alleging they jointly committed defamation. Insert your own cat-related pun here (maybe involving flying fur or scratching claws). However, the plaintiffs actually served only Heineman, Lowry and InMotion.
ComplaintBoard's eligibility for 230's immunity wasn't discussed, but that should be an easy case despite the conspiracy-esque allegations. InMotion's eligibility for 230, as a service provider to the service provider, is an even easier call--indeed, the savvy district court raised the 230 defense sua sponte!--and the Eighth Circuit appropriately treats it as such in what I believe is the first Eighth Circuit opinion on 230. The court says, "It is undisputed that InMotion did not originate the material that the Johnsons deem damaging," and that pretty much ends the inquiry. The court concludes: "we decline the Johnsons' invitation to construe § 230(c)(1) as permitting liability against InMotion for material originating with a third party." This reminds me a little of the uncited Novins v. Cannon case from earlier this year, where the court says there can be only 1 defendant in an online defamation case--the content originator. Everyone else in the publication chain should get 230 immunity.
The opinion then discusses personal jurisdiction. The court rejects plaintiff's home court jurisdiction over Heineman under the Effects Test despite some highly critical comments about the plaintiff's business. Courts have been splitting about the jurisdictional effects of gripe postings, so it's great to see the Eighth Circuit establish that a gripe post doesn't automatically confer jurisdiction in plaintiff's home court.
The court also rejects jurisdiction on trademark grounds based on allegations that Heineman used the phrase "Cozy Kittens and Cuddly Cats" on BoutiqueKittens.com. The court says "there is no evidence in the record that Heineman engaged in any transaction or exchange of information with a Missouri resident via www.BoutiqueKittens.com, or that a Missouri resident ever accessed the website. We decline to confer personal jurisdiction based on only the possibility that a Missouri resident had contact with Heineman through www.BoutiqueKittens.com."
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