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December 28, 2010
Ripoff Report Isn't Bound By Injunction Against User Post--Blockowicz v. Williams
By Eric Goldman
Blockowicz v. Williams, No. 10-1167 (7th Cir. Dec. 27, 2010)
I blogged about this case a year ago. The Blockowiczs objected to allegedly defamatory posts on the Ripoff Report. They obtained a default injunction against the posters requiring removal of the posts. With this default order and the defendants AWOL, the Blockowiczs approached Ripoff Report and other websites and asked them to remove the posts. The Ripoff Report has a well-publicized no-takedown policy, even if the author wants to remove his/her post, so the Ripoff Report refused. The Blockowiczs then claimed that the Ripoff Report violated FRCP 65(d) because the Ripoff Report was "in active concert or participation" with the initial posters by refusing the injunction's removal order. The district court disagreed with the Blockowiczs.
In this ruling, the Seventh Circuit affirms the district court and says that FRCP 65(d) does not require the Ripoff Report to remove the posts based on the default injunction. Ripoff Report can't be compelled to remove the posts through a direct legal action because of 47 USC 230, which the opinion didn't mention. As a result of the FRCP 65 interpretation plus 230's immunity, the Blockowiczs now have no way to force the posts' removal other than a contempt proceeding against the AWOL initial posters.
The legal question is whether the Ripoff Report was "in active concert or participation" with its users regarding their posting. The court rephrases this as whether Ripoff Report "aided and abetted" the posters' violation of the injunction. The court treats this as an easy statutory interpretation question and says:
the record indicates that Xcentric and Magedson have simply done nothing relevant to this dispute since the defendants agreed to the Terms of Service, which occurred before the injunction was issued. Further, the fact that Xcentric is technologically capable of removing the postings does not render its failure to do so aiding and abetting. Xcentric’s and Magedson’s mere inactivity is simply inadequate to render them aiders and abettors in violating the injunction.
The Blockowiczs point out various aspects of the Ripoff Report's user agreement, including clauses prohibiting defamatory posts and getting an indemnity from users. The court dismisses these facts as irrelevant. The court concludes:
With sympathy for the Blockowiczs, we conclude that Rule 65(d)(2)(C) is not the appropriate mechanism for achieving the removal of the defendants’ posts....The Blockowiczs likely could have pursued a contempt charge against the defendants for their failure to comply with the injunction. This avenue for relief may still be available.
One thing the court doesn't directly address: what happens if the Blockowiczs find the initial posters and force them to remove the post or be in contempt, but the Ripoff Report declines due its no-takedown policy? The court skirts the fact that the initial posters no longer have the technical capacity to remove the posts, so it's not clear what would happen if the Ripoff Report refuses the initial posters' removal requests.
The policy implications of this ruling are clear. If UGC websites refuse to voluntarily honor injunctions against user postings and the initial posters can't be found, there could be circumstances where pernicious content simply can't be forced off the web. I would be more troubled by this if I expected this outcome to arise frequently, but it won't. In addition to the Blockowicz case, I can think of one other situation where this issue has come up (the Bobolas v. Doe case), and it was still an open question there if the service provider would do a voluntary takedown. So for now the potentially troubling outcome of this case remains an interesting intellectual issue with minimal practical import.
UPDATE: The Ripoff Report has appended a statement to the three posts in question. See, e.g., this post. A highlight from the statement:
"Other sites claim they support free speech, but when the going gets rough, they will usually protect their bottom line rather than the Constitutional rights and freedoms this country was founded upon. Unlike other sites, even when the speech involved is harsh or negative and even if our position sometimes generates negative press for us, we think that the First Amendment requires us to put our principles before our pocketbook and fight against censorship."
The statement also notes:
"although the existing reports remain visible in their original form, we have made minor redactions to the titles of the affected reports to remove language that was needlessly offensive and profane. Furthermore, despite our decision not to remove this text, anyone reading these reports should keep in mind that a court order has been entered which finds the statements below are not true."
Posted by Eric at December 28, 2010 09:05 AM | Derivative Liability
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