Site Moderators Weren’t Agents of the Site–Cornelius v. BodyBuilding.com

By Eric Goldman

Cornelius v. BodyBuilding.com, LLC, 2011 WL 2160358 (D. Idaho June 1, 2011)

This case involves a nutritional supplement called Syntrax, which is available for sale on an e-commerce site BodyBuilding.com. The site supports users comments and message boards and deploys user-moderators to oversee the conversations. Moderators “may, among other things, edit and delete posts, move threads, and ban forum users for violations of the forum’s terms and conditions.” Moderators self-nominate but are elected by the community. Moderators don’t get paid, but they get a discount for onsite purchases and a free trip to Boise.

This ruling involves three posts made by user “deserusan” and one by “INGENIUM” that made critical remarks about Syntrax. A Syntrax competitor, Gaspari, later hired deserusan as a part-time CSR, and deserusan disclosed that employment status in his onsite signature block. However, perhaps unexpectedly, when deserusan updated his signature block, the update automatically propagated to all of deserusan’s old posts, thus making it appear that deserusan was bashing Syntrax as an official employee of a competitor. Meanwhile, INGENIUM subsequently became an onsite moderator, so his legacy posts (including the one at issue) got the elevated visibility given to posts by moderators, even though it was written when INGENIUM wasn’t a moderator.

Syntrax initially sued more than 15 defendants over these posts. The case has generated a number of interesting and confused rulings along the way, and we’ve blogged it three times before:

* “Website Privacy Policy Supports Pseudonymous Poster’s Expectation of Privacy — Cornelius v. Deluca

* “Troubling Ruling About 47 USC 230 and Moderators–Cornelius v. DeLuca” (which included the classic analysis of whether calling someone a “Cornholio” is defamatory)

* “Online Retailer Isn’t Liable for User Comments–Cornelius v. DeLuca

Gaspari and BodyBuilding.com are the only defendants remaining, and in this ruling, the court grants both summary judgment.

Regarding Gaspari’s liability, deserusan had made the offending posts before becoming an employee, but the court had previously ruled that it could be liable if “Plaintiffs could prove that Gaspari intentionally and unreasonably failed to remove the allegedly defamatory posts after notice and opportunity to do so.” The court concludes that Gaspari lacked adequate knowledge. It didn’t know about the posts when hiring deserusan, it didn’t know he changed his signature block or that doing so would affect old posts, and it didn’t control the posts. Also, similar to Ripoff Report, BodyBuilding.com restricted its authors’ ability to delete their old posts.

[In our exchange about this post in draft mode, Venkat wondered about the legal test the court used here. This is the standard legal test for, say, a business that leaves a defamatory comment posted on the bathroom wall. I don't know if the test makes sense in the context of an employer reviewing a new employee's old online activities, but the court gets to the right place either way.]

Regarding BodyBuilding.com’s liability for the remaining claim of Lanham Act unfair competition, the plaintiff contends that “Bodybuilding.com endorsed or “adopted” INGENIUM’s statement – and therefore became responsible for it – when it failed to remove the post after INGENIUM became a moderator.” This should have been an easy 47 USC 230 dismissal–even if the post was by a moderator, the website is never liable for it–but the court had previously ruled otherwise. This led to an inquiry whether the moderator was the website’s agent.

The court concludes that moderators weren’t acting within any agency scope when posting online, and nothing created apparent authority for those posts. Separately, the court says there may not be any damages because it’s unclear if anyone saw the post during INGENIUM’s time as a moderator.

With all of the facts on the table, it’s easy to see why this case took so many rulings to resolve. Users changed their status to employees/moderators, which in turn changed how their posts were presented. It takes a little while to unpeel these layers. On the other hand, this shows why 47 USC 230 is so helpful. If the court had taken the position all along that a moderator’s post was third party content, the case would have been tossed a long time ago, and the parties would have saved a lot of time and money.

The court reached a good place in declining to hold that agency law made the site responsible for its moderator’s post. However, even if 47 USC 230 didn’t apply, the entire inquiry was flawed because independent user-moderators should almost never be considered agents of the site, and therefore courts should screen out agency arguments much earlier in the process. We don’t get too many agency arguments as bypasses to 47 USC 230, but this case leaves plaintiffs with some reason to explore those doctrinal interstices.

Rebecca is also covering this suit.

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