Message Board Operator Isn’t Liable for Third-Party Posts (DUH)–East Coast Test Prep v. Allnurses

No need to check your watch. It’s still apocalyptic 2020, even though today’s blog post will take you back 15 years to when plaintiffs still hoped to hold message board operators liable for user posts. The caselaw has resoundingly thumped those claims for 15+ years, but these plaintiffs and their lawyers** thought this issue was worth litigating to the Eighth Circuit Court of Appeals. The appellate court–in a breezy but published opinion–tells the plaintiffs the same thing I would have told the plaintiffs (for free, even!) in a 10 minute initial consultation: NOPE.

** Not just one lawyer. FOUR lawyers in THREE different law firms in THREE different states. None of them successfully dissuaded the client from the claims against Allnurses. All of them probably got paid. I expect they’ll even add their experience practicing before the Eighth Circuit to their firm bios. Make Internet Law Great Again (#MILGA).

The principal plaintiff, East Coast Test Prep, provides test prep help for nurses. Allnurses runs a website catering to nurses and nursing students. In its message boards, users posted about the plaintiff’s test prep services, including discussions about the test prep’s value and allegations of a federal investigation. The plaintiff did not like the contents of those user posts and sued several users as well as Allnurses. Allnurses answered and then filed a judgment on the pleadings. The district court ruled for Allnurses. The appeal court affirms.

Section 230. The court says that Allnurses is an ICS provider and the trade libel claim treats it as a publisher or speaker. The only open question is whether the user posts are third-party content. They are:

Test Prep claimed that Russ and Moeller were paid to post and were “volunteers, employees, servants, contractors or agents of Allnurses.” We conclude that the sum total of the complaint’s factual allegations pleaded no more than a “sheer possibility” that Allnurses was wholly or partly responsible for creating or developing Russ’s and Moeller’s posts.

Cites to Iqbal, Huon, and Kimzey. This result is so much savvier than the terrible Huon opinion, which basically said the court took the plaintiff’s allegations as true that Gawker was self-authoring the “user” comments. But pleading standards permit–and require–the court to scrutinize the allegations for credibility. The Huon allegations were never credible, which let a bogus case proceed further than it should have gone. This court, in contrast, demands an appropriate level of supporting evidence in the complaint. Thus, I think this case is more predictive of how courts will handle the issues than the Huon outlier.

Contract. The plaintiffs claimed Allnurses failed to enforce the covenants in its TOS restricting bad behavior by other users. This is the exact same argument that failed in Noah v. AOL in 2003. It fails again. The plaintiffs tried to structure a direct contract breach, to the same effect:

Allnurses did not promise in the first quoted paragraph to identify and immediately remove any and all potentially false statements. Instead, it clearly disallowed users from posting libelous information and informed them that illegal or inappropriate posts would be removed. Allnurses’s statement that it “promote[s] the idea of a lively debate” was not a promise to keep its discussion threads open, particularly in light of the provision that “[p]roblematic posts/threads may be deleted or closed.”

The TOS didn’t make sufficiently “clear and definite” promises to support promissory estoppel.

Fraud. The plaintiffs claimed Allnurses advertised itself as a fair and impartial forum but didn’t disclose its business relationships with its financial sponsors. Iqbal cleans this one up too.

Case dismissed. Sadly for Allnurses, no sanctions or fee-shifts are likely to be awarded, even though the lawsuit never should have been brought. A federal anti-SLAPP law might have been helpful here.

Case citation: East Coast Test Prep LLC v. Allnurses.com, Inc., 2020 WL 4809911 (8th Cir. Aug. 19, 2020)