Blogger Gets 47 USC 230 Dismissal for Third Party Comment–Kruska v. Perverted Justice

By Eric Goldman

Kruska v. Perverted Justice Foundation Inc., 2011 WL 1260224 (D. Ariz. April 5, 2011)

This is my third time blogging this case. The latest ruling involves a blog, run by Brocious, for people fighting pedophiles. Someone (presumably a third party user) allegedly posted a comment to the blog saying that Kruska had “starved a child.” In 2008, I blogged how GoDaddy–in its role as a web host–exited the lawsuit per 47 USC 230. Last Fall, I blogged how Kruska’s allegation that Brocious “actively contributed” to the website defeated Brocious’ 230 immunity on a motion to dismiss.

Five months later, this case came back to the judge as a summary judgment motion based on 47 USC 230, which the judge granted. Like the Smith v. TRUSTe case, this is a situation where the judge might have been too cautious on the 12(b)(6) motion, causing the case to go longer and cost more money only to reach the inevitable result. Bummer.

The court dismisses the defamation claim for both failure of the prima facie case and on 230 grounds. With respect to the latter, the court’s application of the law to this case:

Defendant argues that he is immune from suit under s 230 because “Plaintiff plainly cannot show that Defendant was involved in any of the activities that might otherwise give rise to liability for defamation.” Plaintiff asserts that Defendant is not immune because “[s ] 230 does not immunize the actual creator of the content, whether he is a blogger, commenter, or anything else.” The Court finds that Defendant is immune from suit under s 230 because at most, Plaintiff sets forth the possibility that Defendant, as the alleged publisher of the Blog, “viewed an[d] approved [the comment] before [it was] published.” Such alleged passive participation would be akin to the alleged conduct in Batzel, where the Ninth Circuit held that s 230 immunity applied to a website administrator who selected, edited, and published the contents of an allegedly defamatory comment. Even if Plaintiff’s assertion that Defendant took active steps to publish the alleged comment on the Blog was true, such steps are not the type of material contribution to the alleged misconduct that the Ninth Circuit found in Fair Housing Council. [cites omitted]

Good result; but it would have been better if it came on the motion to dismiss. Note that this is yet another case where Roommates.com is cited in favor of the defense; and once again, affirmative publication of content is covered by 47 USC 230. Also, this is another rejection of the plaintiffs’ general attack that a site’s operator is so hands-on with the site’s operations that he/she becomes responsible for all of the content.

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BONUS 47 USC 230 COVERAGE (Another hidden track blog post):

Supplementmarket.com, Inc. v. Google, Inc., 2010 WL 6309991, 17 Pa. D. & C. 5th 321 (Penn. Ct. Common Pleas July 26, 2010)

Occasionally Westlaw spits out a case months or years after it was decided with no apparent explanation for the lengthy delay. Sometimes I get email tips about these cases; other times, the cases just fall through the cracks. This is one of those cases.

This case involves an allegedly defamatory posting to the Usenet newsgroup alt.sport.bodybuilding. I don’t get to talk about Usenet very often; see Novins v. Cannon for one similar case. The plaintiff sued because Google failed to remove the post from Google Groups after getting a C&D. This is an incredibly easy 47 USC 230 case, and the court dismisses the suit in a brief opinion. For an analogous Google case, see Black v. Google.

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