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January 04, 2011
Ripoff Report Ordered to Stop Publishing User-Submitted Report--Giordano v. Romeo
By Eric Goldman
Today's case is a baffling and clearly erroneous ruling. What's even more bizarre is that the judge initially got the right result and *then* screwed up. Bummer.
The case involves an allegedly defamatory Ripoff Report posting by a user, Romeo. The plaintiff sued the user and Ripoff Report (Xcentric). The judge initially dismissed Ripoff Report based on 47 USC 230. So far, so good.
Then, the user agreed to a stipulated injunction that she would ask Ripoff Report to remove the post. Ripoff Report--following its standard no-removal policy--said no. The plaintiff then went back to court, got permission to add Ripoff Report back into the case as a defendant, and then sought a TRO against the Ripoff Report for failing to remove the post.
The judge signed the plaintiff's requested TRO form, which said “Xcentric [sic] refusal to comply with this Court’s Order and the demand of the publisher to remove the statements makes XCentric the publisher of the statements and therefore liable for damages.” The judge crossed out the phrase "and therefore liable for damages" and hand-wrote the following: “This is different from determining that they are the publisher solely because of the posting.” The TRO form also says "The court specifically finds that the CDA does not categorically bar this Court from issuing an injunction against Xcentric" and later "even if Xcentric were not treated as the publisher (and indeed, Plaintiffs do not seek to impose civil liability upon Xcentric), the CDA does not bar this court from entering injunction [sic] relief."
Whoa. The court can repeat as many times as it wants that Section 230 doesn't preempt injunctive relief, but it's greatly mistaken. Courts have repeatedly rejected injunctive relief in 230 cases in the past. See, e.g., Noah v. AOL Time Warner, Inc., 261 F. Supp. 2d 532 (E.D. Va. 2003):
plaintiff argues, unpersuasively, that § 230 does not apply to claims for injunctive relief, relying on Mainstream Loudoun v. Board of Trustees of the Loudoun Cty. Library, 2 F.Supp.2d 783, 790 (E.D.Va.1998)....Subsequent courts have not followed Loudoun in limiting § 230 immunity to claims for liability only, but have found § 230 applicable to claims seeking injunctive relief as well. See Ben Ezra, 206 F.3d at 983-986 (applying § 230 to claims for injunctive relief); Smith v. Intercosmos Media Group, Inc., 2002 WL 31844907 (E.D.La. Dec.17, 2002) (holding that § 230 provides immunity from claims for injunctive relief); Kathleen R., 104 Cal. Rptr.2d at 781 (same). Indeed, given that the purpose of § 230 is to shield service providers from legal responsibility for the statements of third parties, § 230 should not be read to permit claims that request only injunctive relief. After all, in some circumstances injunctive relief will be at least as burdensome to the service provider as damages, and is typically more intrusive.
Further, the court goes out of its way to call Ripoff Report a "publisher" of Romeo's content, which explicitly invokes the statutory language in 230(c)(1) that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." So by calling Ripoff Report a publisher, the court demonstrated that its ruling was unlawful. Worse, the idea that Ripoff Report isn't initially a publisher but can become one by failing to remove the post has been thoroughly rejected in a long string of cases dating back to the uncited AOL v. Zeran case. The Florida Supreme Court has even adopted Zeran in Doe v. AOL from a decade ago, so there really isn't any question that this judge went rogue.
This ruling is similar to the recent Blockowicz decision, but that case had a different procedural setting. There, Ripoff Report wasn't a defendant and had never been; the only issue was a statutory construction of language in FRCP 65(d). Here, for perplexing reasons, the court allowed the plaintiff to name the Ripoff Report as a defendant as a second time after having dismissed the Ripoff Report initially.
We've now seen several cases in the past few months involving injunctions against websites over user-generated content. Two of them, the Blockowicz and Bobolas cases, said an injunction against a user's post does not reach the hosting website per FRCP 65(d). In Amaretto v. Ozimals, the court issued an injunction against a non-party website without explaining how or why it could reach that site. Then, in this case, the court lets the plaintiff add the website as a defendant solely for injunctive relief purposes. The legal results in these cases are pretty jumbled right now, and I hope we get some definitive clarity soon. Perhaps we'll get it in this case, as the Ripoff Report plans to appeal.
Paul Levy has an excellent and lengthy writeup about this case, the Blockowicz case and their implications.
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