Section 230 Helps Substack Defeat a Defamation Claim–Smith v. Substack

August 13, 2024 · by · in Content Regulation, Derivative Liability

This case involves the CancelWatch “blog” on Substack, which says: “We report the activists trying to ruin people’s lives and careers.” In July 2023, it made a post entitled “Oliver D. Smith” that details Smith’s online activities and explains why it thinks they are nefarious. In response, Smith sued Substack pro se for defamation and more. Substack defended on Section 230 grounds.

Smith alleged that the post’s author attempted to blackmail him pre-publication (a pay-to-not-post scheme), so Substack should be liable for not removing the posts in response to his complaints. However, Section 230 squarely protects leave-up decisions:

Substack did not create the content nor decide to post material unintended for publication. Substack merely decided whether or not to withdraw the post from publication, which is lawfully within the purview of a publisher. Smith has not alleged that the blog post was provided to Substack by its author for any other reason than publication. Substack is entitled to immunity.

To get around this, Smith argued that blackmail is a crime, but the court cited Coffee v. Google in response. Smith also cited Smith v. TRUSTe (no relation?) for its discussion about good faith prerequisites, but that case was a 230(c)(2) case, not a 230(c)(1) case.

Finally, Smith claimed that Substack’s “sheer failure to respond to [his] multiple reports, queries, and complaints was negligence.” Bending over backwards to accommodate a pro se plaintiff, the court says:

The Court agrees that the manner in which Substack allegedly responded to, or ignored, Smith’s communications is a separate issue from Substack’s publishing decisions with respect to the CW blog post. The latter are immunized under Section 230, while the former are not necessarily immunized. The FAC, however, fails to sufficiently state a claim that is outside the scope of immunity.

Maybe the court was thinking of Yahoo’s promise to Barnes to remove posts? In practice, it’s almost impossible to make a legal distinction between leave-up decisions and a service’s non-response to third-party complaints about those leave-up decisions. Smith will get a chance to try again, but the court says finding a non-immunized claim will be “very challenging.”

Case Citation: Smith v. Substack Inc., 3:24-cv-00727-AGT (N.D. Cal. Aug. 12, 2024)