Message Board Operator Isn’t Liable for Highlighting User Comments–Ayyadurai v. Techdirt

[It’s impossible to blog about Section 230 without reminding you that it remains highly imperiled.]

I’m so far behind in my blogging that you’ve already heard about–and forgotten–this ruling. Ayyadurai claimed to have invented “email” because he developed a software program in the late 1970s called “Email.” Mike Masnick, in his inimitable way, repeatedly debunked Ayyadurai’s claim. Ayyadurai retained lawyer Charles Harder, famous for representing the plaintiff that helped Hulk Hogan kick Gawker out of the marketplace, to sue Techdirt for defamation in Massachusetts. The court granted Techdirt’s motion to dismiss.

The court says Ayyadurai is a public figure and the case involves a matter of public concern, and he can’t prove the requisite falsity. With respect to Techdirt’s denigration of his status as email’s inventor (including harsher statements like “fake,” “fraud” and “charlatan”), the court says those “statements are protected because they are not provably false, are subjective statements that do not imply knowledge of objective facts, or are statements involving figurative language or hyperbole.” Like many other recent online defamation rulings, this court credits the hyperlinks to source documents (“by providing hyperlinks to the relevant information, the articles enable readers to review the underlying information for themselves and reach their own conclusions”) and the freewheeling nature of the blogosphere.

It’s a good ruling, but it’s a reminder that Massachusetts’s anti-SLAPP law isn’t robust enough to cover lawsuits like this. Massachusetts is currently considering a much-needed amendment to its anti-SLAPP law, but what we really need is a federal anti-SLAPP law that sets a minimum free speech floor across the nation.

The case also discusses Section 230 immunity for a “roundup” post of user comments. The court describes:

The article at issue, authored by Beadon and entitled “Funniest/Most Insightful Comments of the Week at Techdirt,” includes re-postings of comments posted by Techdirt’s readers. The article includes hyperlinks to the original comments, which were all posted in the “Reader Comments” section of previous Techdirt posts, and also includes intermittent introductory and editorial comments written by Beadon. All of the allegedly defamatory comments identified in the complaint are contained within the re-posted user comments.

The court says Section 230 immunizes this roundup post:

it is clear that Beadon was neither the “creator” nor “developer” of the statements at issue. Beadon simply selected a user-submitted comment and re-posted it, without modifying the content of the comment. Republishing an already-existing user-submitted comment, without altering the content of that comment, does not materially contribute to its allegedly defamatory nature.

Section 230 applies even if Beadon “adopted” or “ratified” the third party comments by including them in the roundup post, per the Jones case.

In a footnote, the court says that the plaintiff alleged that Beadon may have authored anonymous comments included in the roundup. The court says this allegation doesn’t clear the Iqbal standard. (No discussion of the Huon v. Denton trainwreck).

Case citation: Ayyadurai v. Floor64, Inc., 2017 WL 3896668 (D. Mass. Sept. 6, 2017). Techdirt’s post about the ruling.