Linking to Defamatory Content Protected by Section 230—Vazquez v. Buhl

Teri Buhl posted allegedly defamatory content about Vazquez to the Internet. A CNBC editor linked to that post in an article entitled “The Sex and Money Scandal Rocking Hedge Fund Land.” The CNBC article characterized Buhl as a “veteran financial reporter” who “knows her way around the Connecticut hedge fund beat,” and encouraged readers to visit the post by saying, “I don’t want to steal Buhl’s thunder, so click on her report for the big reveal.” Vazquez sued CNBC and Buhl for the statements in Buhl’s post. He didn’t allege that CNBC’s article was defamatory. CNBC defended on Section 230 grounds.

Vazquez conceded that CNBC provided interactive computer services and that he was sought to treat CNBC as the publisher of Buhl’s statements. Thus, the action folded to the question of whether CNBC was being held liable for content “provided by” another information content provider.

Vazquez argued that Section 230 applies only when the third party “directly transmits” the content to the defendant, such as when the third party submits the content to the defendant’s servers. Citing several cases (Project Playlist, Parker and Fonorow), the court says that Section 230 isn’t limited to content hosting.

Vazquez also argued that CNBC became an information content provider of Buhl’s statements by encouraging people to read her post. Alongside several defense-favorable rulings, the court cites a sewer-full of dubious plaintiff-friendly Section 230 rulings, including Roommates.com, Accusearch, Dirty World, Woodhull, MCW v. Badbusinessbureau and Doctor’s Associates. Cutting some intellectual corners, the court reaches the surprising result that these rulings are generally all in accordance with each other and with defendant-favorable rulings like Zeran and Lycos. Using that cheat, the court glibly distinguishes this murderer’s row of adverse precedent. The court summarizes its conclusions (emphasis added) that CNBC wasn’t a developer-in-part:

The plaintiff has not alleged any actions, individually or in combination, from which to conclude that the defendant “materially contributed,” “prompted,” “specifically encouraged,” “apparently requested,” or “actively solicited” the defamatory statements in Buhl’s articles. Rather, the actions alleged by the plaintiff are fairly characterized by him to have “amplified,” “endorsed,” and “adopted” those statements. It is immaterial whether the defendant amplified, endorsed, or adopted the defamatory statements, because the defendant played no role in their composition.

This rationale ought to apply equally to most situations involving linking to defamatory content. Thus, I think this case stands cleanly for the proposition that linking to tortious content is immunized by Section 230 because the linker isn’t the composer. Still, this isn’t a complete free pass: if the original words authored by the linking website are problematic, Section 230 won’t help.

As some other judges have done, the court drops a footnote expressing concerns about the equities of its ruling:

We recognize that putting our interpretation into practice has the potential to create harmful results.….Although not all cases have to accommodate such harsh results, it is the sting behind cases like Barnes that can make faithful interpretation of statutes difficult. Without further legislative action, however, there is little we can do in our limited role but join with other courts and commentators in expressing our concern with the statute’s broad scope.

Kudos to judges who decide cases with their heads, not their hearts. It’s so crucial for judges to follow Section 230, rather than let their emotions override, because for every situation with links to bad content, there are many more situations where links to potentially legally risky content make the Internet better. A single judge adjudicating the facts of a single case is in a poor position to balance such important social considerations.

There is an obvious tension between a ruling like this and the ECJ’s Google ruling. Both involve the regulation of linking to third party content. Here, the court says links to third party sites are fine. The EU would reach a different result for search engine links, though I’m not clear if that same reasoning would extend to a CNBC article. To me, the ECJ result is even worse because Google was linking to content that everyone agreed was truthful; while in the Buhl case, I don’t believe the veracity of Buhl’s content has been resolved legally. I hope to make a separate blog about the ECJ opinion soon.

Case citation: Vazquez v. Buhl, 2014 WL 1795574 (Conn. App. Ct. May 13, 2014). Prior post on this case by guest blogger Sam Bayard.