March 02, 2011
Unsuccessful 230(c)(2) Defense for Blog Comment--Mealer v. GMAC
By Eric Goldman
Mealer v. GMAC Mortgage LLC, 2011 WL 744895 (D. Ariz. Feb. 24, 2011)
Mealer is an automotive entrepreneur. He posted about General Motors to his company blog. He alleges that Kordella, a GM engineer, disparaged Mealer in a comment to Mealer's blog post. Apparently, this was quite a comment, because "Mr. Mealer believes that those remarks had considerable sway on potential investors such that Mealer Companies lost all potential investment capital to the tune of $200,000,000." He sued (pro se, naturally) a whole host of defendants, all of whom are now out of the case except for GMAC and related companies.
The moment Mealer started claiming $200M losses, he kind of lost any possible credibility he might have had. Indeed, the court makes it pretty clear his claim is going nowhere, later on saying "Mr. Mealer has asserted tenuous and abstract defamation-related claims against GMAC on the doubtful basis that GMAC owned computer equipment or provided internet access that facilitated blog commentary." This particular ruling also doesn't address the obvious question of when Mealer deleted the unwanted comment from his blog.
GMAC asserted a 47 USC 230(c)(2) defense against liability for Kordella's comment. We don't get many 230(c)(2) cases (in comparison to 230(c)(1), which comes up a lot). 230(c)(2) immunizes a website's own filtering decisions, as opposed to 230(c)(1)'s immunity for third party content. The short opinion doesn't explain the relationship between Kordella and GMAC--presumably not an employee-employer relationship if Kordella worked for GM--but apparently GMAC didn't do enough to explain how GMAC did the requisite filtering that 230(c)(2) immunizes. Because the facts aren't adequately connected to the legal defense, the court rejects it. The news isn't all bad for GMAC; even though it didn't get its 230(c)(2) defense, it is still clearly going to win this case.
Although GMAC didn't assert it, the court intimates that a 230(c)(1) defense may have been available. Presumably, if Kordella isn't GMAC's employee, then there's no theory to connect GMAC to Kordella's post that survives 230(c)(1). See, e.g., Novins v. Cannon. This case reminded me a little of the uncited Delfino v. Agilent case, where an employer got a 230(c)(1) defense for an employee's Internet conduct when the employer basically only acted as the Internet access provider to the employee for purposes of the tortious conduct. Where GMAC isn't even the tortfeasor's employer, the 230(c)(1) case seems even stronger.
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