Section 230 Immunizes Links to Defamatory Third Party Content–Directory Assistants v. Supermedia
By Eric Goldman
Directory Assistants, Inc. v. Supermedia, LLC, 2012 WL 3329615 (E.D. Va. May 30, 2012)
[For some reason, this case just appeared in my Westlaw alerts today. Even at this late date, it's worth sharing. I have a lot of other cases stuck in my blogging queue, including other Section 230 cases. Eventually I'll clean up the backlog.]
Unknown parties posted negative reviews of Directory Assistants to various review sites, including RipOffReport.com, Scamlnformer.com, InsiderPages.com, JudysBooks.com, and YellowPages.com. Directory Assistants claims the reviews are defamatory. Supermedia, which apparently partially competes with Directory Assistants, allegedly sent prospective customers emails with links to those reviews. Directory Assistants sued Supermedia for circulating those links.
In this ruling, the court dismisses (on a 12(b)(6) motion to dismiss) Directory Assistants’ suit against Supermedia on 47 USC 230 grounds. After incorrectly saying that Section 230 precedent only focuses on the immunity’s applicability to providers of interactive computer services rather than users (thereby missing numerous cases, most obviously the California Supreme Court’s opinion in Barrett v. Rosenthal), the court articulates its legal standard:
a user of an interactive computer service who finds and forwards via e-mail that content posted online in an interactive computer service by others is immune from liability
Supermedia easily met that standard. Directory Assistants tried to argue that discovery was required to determine if the linked-to sites qualify as “interactive computer services,” but the court rejects the request because it’s well-known that websites like Ripoff Report republish user-generated content. However, the court seems to have misread or misapplied the statute’s reference to “interactive computer service.” It shouldn’t matter to the Section 230 inquiry if it was Ripoff Report or its users authored the linked-to reports; either way, a third party linking to that content isn’t liable. Indeed, Section 230 applies even if the “republisher” publishes the full text of the third party content rather than linking to it (e.g., Barrett v. Rosenthal, Batzel v. Smith, Mitan v. A. Neumann & Associates, Phan v. Pham and D’Alonzo v. Truscello). The court got to the right place, but it made the inquiry more byzantine than it should be.
Directory Assistants also argued that discovery was required to determine if Supermedia constituted a “user.” Because the court missed all of the Section 230 jurisprudence interpreting “user,” the court makes up its own definition, citing the dictionary. The court synthesizes its analysis:
Defendants were users in that they put RipOffReport and other websites into action or service, and availed themselves of and utilized these websites by compiling their posts by copying links to commentary posted on them….The action of compiling information from a website and e-mailing that information to others clearly constitutes use of that website and its services. There are no allegations that Defendants created the posts or altered them. Indeed, the content of the posts was not even contained in the email.
Having reached the sensible conclusion that Section 230 immunized Supermedia for linking to third party content, the court could have (and should have) stopped there. Instead, the court concludes:
there is no authority in the statute or case law that makes a user responsible for the creation or development of posts on a website that is an interactive computer service….Nowhere has Plaintiff pleaded that Defendants actually wrote, created, or developed the allegedly defamatory content. Rather, as alleged in the Complaint, Defendants were downstream users of content created by other people and posted on these websites. Defendants’ involvement was passive in nature—compiling links to the posts and sending those links via e-mail. If, on the other hand, Plaintiff had some evidence that Defendants had a hand in creating the allegedly defamatory posts, it may have had a case.
OK, fine, but then…
Congress has granted anonymous posters on these websites a license to libel people and companies because the people and companies who provide the fora for this content, and the subsequent users of it, are immune from common law defamation suits. This license is clearly subject to tremendous abuse, and the Court has serious misgivings about this Circuit’s broad interpretation of § 230 immunity. The prospect of blanket immunity for those who intentionally redistribute defamatory statements could have widespread and potentially catastrophic consequences for individuals and entities alike. Nevertheless, under the CDA the Court’s hands are tied.
The judge earns points for his candor, and more points for faithfully applying a statute he is troubled by. But he loses points for whining about defamation when it wasn’t confirmed that the reviews were actually defamatory, more points for failing to acknowledge the beneficial aspects of this ruling (linking is a net win for society, even if sometimes the linked content isn’t credible), and even more points for stating his concerns in unnecessarily hyperbolic terms (“widespread and potentially catastrophic consequences”). Because he got to the right result, I won’t take any further points off for the major research gaffe (missing the caselaw interpreting “user”) and the apparent statutory misreading that Section 230’s immunity depends whether the linked-to site is itself user-generated.
Section 230 immunity for linking to third party sites seems completely obvious and intuitive, yet surprisingly, this is one of only a handful of cases actually reaching that conclusion. The only other two cases I know of (if I’ve forgotten anything, please email!):
* Shrader v. Biddinger, 2012 WL 976032 (D. Colo. February 17, 2012). Directly on point, and missed in this judge’s “research.”
* McVey v. Day, 2008 WL 5395214 (Cal. App. Ct. Dec. 23, 2008) (see Sec. B(3)(C)). This case also holds that linking is immunized by Section 230, but not in a very understandable way.
Also, in Parker v. Google, Inc., No. 06-3074 (3d Cir. July 10, 2007), it’s not clear if the court is saying that Google’s links to third party websites is immunized by Section 230 or just Google’s snippets (or both).
Some other cases saying that linking to bad content isn’t actionable, even without reference to Section 230:
* In re Gemtronics, Inc., Docket No. 9330, Initial Decision (F.T.C. A.L.J. Sept. 16, 2009)
* Crookes v. Newton, 2011 SCC 47 (Canadian Sup. Ct. 2011)
But compare my post, SEC’s Proposed Guidance on Hyperlinking Contravenes 47 USC 230