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March 30, 2011
Defendant Succeeds On Second Attempt With a Section 230 Dismissal--Mealer v. GMAC
By Eric Goldman
Mealer v. GMAC Mortgage LLC, 2011 WL 1103357 (D. Ariz. March 25, 2011)
I previously blogged about this case a few weeks ago. Mealer claims that a GM employee, Kordella, bad-mouthed him in a comment on Mealer's blog, and that comment killed Mealer's hopes for a $200M business. Among a number of other defendants, Mealer sued GMAC, a separate company from GM, because the GM employee apparently used an Internet connection through GMAC to post the comment. Thus, effectively, GMAC was the Internet access provider in this triangle.
In the prior ruling, GMAC tried to end the case using 47 USC 230(c)(2), the immunity for filtering decisions. The court rejected the argument, saying that GMAC didn't explain its filtering efforts well enough. The court then added: "Although [Section 230(c)(1)] might defeat Mr. Mealer’s claims against GMAC, no such argument has been made."
GMAC's lawyers got the hint and moved for summary judgment on 230(c)(1) grounds. In a brief opinion, the court grants summary judgment and dismisses the case. The court runs through the elements of a 230(c)(1) defense:
* GMAC is an interactive computer service because it was functioning as an IAP here
* Mealer claims defamation, which is covered by the immunity
* the GM employee was a third party to GMAC
Check, check, check = successful immunity. The court then continues with an impossible-to-parse statement, so I quote it:
Mr. Mealer's argument seems to rest on the idea that Kordella committed a trespass to chattels and that GMAC is somehow also responsible. Mr. Mealer's argument reflects a fundamental misunderstanding of that common law tort. Mr. Mealer has not asserted a claim for trespass to chattels, nor could he. Mr. Mealer never had the $200,000,000 in prospective growth funding that he characterizes as a chattel.
If you understand what that means, let me know!
Fortunately, this case reaches its logical conclusion. I think this ruling "fixes" any problems created by the court's prior ruling on Section 230(c)(2), which I think was erroneous because I think both 230(c)(1) and 230(c)(2) could apply here. However, as Pat Carome indicated at our 230 shindig, clients gravitate towards 230(c)(1) instead of 230(c)(2) because they think it's easier to win. This case might further reinforce that trend.
UPDATE: Mealer emailed me to say that he plans to appeal the ruling.
Posted by Eric at March 30, 2011 10:58 AM | Derivative Liability
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