Grieving Parents (Still) Can’t Sue Topix For Son’s Oxy Overdose–Witkoff v. Topix (Forbes Cross-Post)
Photo credit: enameled house number two hundred and thirty // ShutterStock
This case involves the tragic death of Andrew Witkoff. Seeking to buy Oxycodone, he did some Google searches and found a Topix forum titled “Oxycontin, Roxicodone, Oxycodone” (Oxycodone forum).” Topix created this forum title, but all of the content in the forum came from Topix’s users. One forum thread discussed where to buy Oxy, and Witkoff found a post where Daniel Park offered to sell Oxy. Witkoff and Park communicated by email and arranged a physical space meeting to close the purchase. Witkoff overdosed on Oxy and died two days later. His parents then sued Topix, claiming that setting up the Oxy forum constituted a “public nuisance” (which the statute defines to include “the illegal sale of controlled substances”). In 2014, the trial court dismissed the lawsuit based on 47 USC 230, the federal law that says websites aren’t liable for user content.
The appellate court agrees with the trial court that Section 230 preempts this lawsuit:
the illegal discussions concerning controlled substances that allegedly occurred on defendant’s Oxycodone forum derives from third-party threads created by the Web site’s users. There is no allegation that defendant controlled or created the content in the threads. The gravamen of plaintiffs’ allegations is to hold defendant liable as publisher of content from third parties.
The plaintiffs argued that Oxy is a legally controlled substance, so the discussions were illegal on their face. The court says that’s not Topix’s concern because “the criminal conduct was the result of user-input. More to the point, defendant merely published the e-mail involving Mr. Park, the drug trafficker.” The court adds that Oxy can be medically prescribed, so discussing it isn’t per se illegal.
This ruling implicitly diverges from the recent Washington Supreme Court ruling in J.S. v. Village Voice, which allowed plaintiffs to pursue Backpage for running ads for illegal online prostitution. That ruling was a huge outlier because it limited Section 230’s applicability for illegal conduct taking place elsewhere, even though courts routinely have used Section 230 to preempt such lawsuits (see, e.g., Doe v. MySpace, Doe IX v. MySpace, Doe II v. MySpace, Beckman v. Match.com, Inman v. Technicolor, Gibson v. Craigslist, Coppage v. U-Haul; cf. Vesely v. Armslist). It’s too early to tell if the Backpage ruling created a new hole in Section 230’s otherwise-solid protection for defendants; for now, I continue to expect more rulings like Topix and fewer like Backpage.
UPDATE: I asked Topix’s attorney, Justin Kim, why Topix created the Oxy forum page in the first place. He replied:
Topix generated a knowledge base for the aggregation of news for hundreds of thousands of topics, which then were augmented with user commentary and forums. As part of that process, unique forums for over 842 different prescription pharmaceutical medications including a page for “OxyContin, Roxicodone, Oxycodone” were automatically generated by information from third party medical related websites, first as topics for news aggregation, and subsequently, to promote discussion of these pharmaceutical products.
Case citation: Witkoff v. Topix, LLC, 2015 WL 5297912 (Cal. App. Ct. Sept. 10, 2015). Witkoff’s appeal brief. Topix’s response brief. Witkoff’s reply brief.