Emailing the URL of an Allegedly Defamatory Post Immunized by 47 USC 230–Shrader v. Biddinger

By Eric Goldman

Shrader v. Biddinger, 2012 WL 976032 (D. Colo. February 17, 2012). That ruling is the magistrate’s report. The judge adopted the magistrate report verbatim last week. The initial complaint. This case also produced an interesting 10th Circuit ruling on jurisdiction: Shrader v. Biddinger, 2011 WL 678386 (10th Cir. Feb. 28, 2011).

Shrader entered into an agreement with Stewart to publish Shrader’s content. That relationship soured, and Shrader demanded that Stewart stop publishing the content. It’s not clear Stewart ever did so.

In connection with their publication dispute, Stewart emailed some critical remarks about Shrader to Biddinger, who posted the email to a Wave59 message board. Wave59 didn’t remove the post after learning of Shrader’s direction, and indeed Wave59 principal Beann personally emailed the post’s URL to various interested folks.

Shrader, suing pro se, initiated the kind of sue-everyone legal proceedings that we sometimes see from pro se litigants. The magistrate’s decision (as approved by the judge) ends big chunks of Shrader’s lawsuit and, to boot, awards some attorneys’ fees under Colorado §13-17-201 (which basically applies to tort claims which the defense wins on a 12(b) motion). If Shrader has any money, he will be writing a good-sized check to some defendants for their troubles.

Wave59 and its principal Beann get a successful 47 USC 230 immunity. This outcome is so obvious, I doubt these defendants would have been sued in the first place if Shrader had used an attorney. The magistrate says:

neither Beann nor Wave59 originated the posting plaintiff finds objectionable. Rather, Biddinger was the “information content provider.” Wave59 was the “interactive computer service.” Consequently, this court finds that the CDA provides these defendants with federal immunity against the plaintiff’s state tort claims based upon the posting being placed on and kept on the Wave59 website

(Just to clarify, Biddinger isn’t necessarily the ICP of any defamatory content. Instead, he may have had his own 230 immunity for republishing Stewart’s email per Batzel and Barrett v. Rosenthal).

The magistrate says Section 230 applies even though Wave59 didn’t remove the post after getting notice. Further, citing Blumenthal v. Drudge (a slightly odd cite in this context), the court says “even if Beann ‘directed’ users of the board to [the post], such conduct does not diminish the protections of the CDA’s immunity.” This result is entirely consistent with Section 230, but at the moment I’m hard-pressed to think of another Section 230 case with closely analogous facts. Let me know if I’ve forgotten something.

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