47 USC 230 and Message Board Cases

By Eric Goldman

[I've been sitting on this blog post since March, so this post is slightly out of date. For example, I believe the recent Kruska ruling would be a new addition to the list. Putting aside any recent developments, I think this post tells a strong story about 47 USC 230's sweet spot.]

In March, I had the opportunity to research cases where 47 USC 230 applied to message board postings. Here’s a report on what I learned:

In general, 47 U.S.C. § 230 means that websites are not liable for third party content except for federal criminal prosecutions, intellectual property claims, or claims under the Electronic Communications Privacy Act or state law equivalents. All other claims predicated on third party content are preempted.

As a specific application of the general rule, the statute immunizes websites from defamation claims based on user-submitted content. When websites allow users to post comments and those comments are defamatory, 47 U.S.C. § 230 eliminates the website’s liability for the comments.

The 47 U.S.C. § 230 immunity applies to media publishers who publish their articles online and let readers respond to those articles via defamatory comments. Two recent cases illustrate this point.

In Miles v. Raycom Media, Inc., 2010 WL 3419438 (S.D. Miss. Aug. 26, 2010), the WLOX television station in Southern Mississippi posted an allegedly defamatory article about the plaintiff to its website and allowed reader comments. She sued the television station for defamation based on both the article and reader comments submitted in response to the article. The court dismissed her defamation claim based on reader comments per 47 U.S.C. § 230.

In Collins v. Purdue University, 703 F. Supp. 2d 862 (N.D. Ind. March 24, 2010), the Journal & Courier newspaper in Lafayette, Indiana, published an article allegedly defaming the plaintiff in both the newspaper’s print and online editions. The online edition allowed reader comments. The plaintiff sued the newspaper for defamation based on both the article and reader comments submitted in response to the article. The court dismissed his defamation claim based on reader comments per 47 U.S.C. § 230.

A larger number of cases address a website’s liability for operating online “message boards” or similar functionality that allows third parties to post allegedly defamatory messages. 47 U.S.C. § 230 immunizes the website for the third party defamatory messages. I found over a dozen examples where 47 U.S.C. § 230 applied to such defamation claims since 2005 [current as of March 2011]:

Two Plus Two Publishing LLC v. Jacknames.com, 2010 WL 4281791 (D. Nev. Sept. 30, 2010)

Milo v. Martin, 311 S.W.3d 210 (Tex. App. Ct. April 29, 2010) (note: posts were to “guestbook”)

Shiamili v. Real Estate Group of New York, Inc., 892 N.Y.S.2d 52 (N.Y. App. Div. Dec. 17, 2009)

Finkel v. Facebook, Inc., 2009 N.Y. Slip Op. 32248 (N.Y. Sup. Ct. Sept. 15, 2009) (note: posts were to private user group)

Joyner v. Lazzareschi, 2009 WL 695539 (Cal. App. Ct. March 18, 2009)

Raggi v. Las Vegas Metropolitan Police Dept., 2009 WL 653000 (D. Nev. March 10, 2009)

Higher Balance, LLC v. Quantum Future Group, Inc., 2008 WL 5281487 (D. Or. Dec. 18, 2008)

Best Western International, Inc. v. Furber, 2008 WL 4182827 (D. Ariz. Sept. 5, 2008)

DiMeo v. Max, 248 Fed. Appx. 280 (4th Cir. Sept. 19, 2007)

Universal Communication Systems, Inc. v. Lycos, Inc., 478 F.3d 413 (1st Cir. Feb. 23, 2007)

Eckert v. Microsoft Corp., 2007 WL 496692 (E.D. Mich. Feb. 13, 2007)

Faegre & Benson v. Purdy, 367 F. Supp. 2d 1238 (D. Minn. Apr. 27, 2005)

Donato v. Moldow, 865 A.2d 711 (N.J. App. Div. Jan. 31, 2005)

Many other 47 U.S.C. § 230 cases involve methods of online user-to-user communication beyond article comments or message board posts, such as online classified advertising, consumer review websites, social networking site user profiles and chatrooms. Those cases are equally clear that the website operator is not liable for user-posted defamatory content per 47 U.S.C. § 230.

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