230 Applies Even if Website Retains Content That Author Asked to Remove–Global Royalties v. Ripoff Report

By Eric Goldman

Global Royalties, Ltd. v. Xcentric Ventures, LLC, 07-956-PHX-FJM (D. Ariz. Oct. 10, 2007)

Surprise! Ripoff Report/Xcentric/badbusinessbureau/Magedson are in court again (I’ve lost count of the number of times I’ve blogged on them–check here and do a find for your preferred term). This time, they get a great 230 win.

Sullivan made three posts to Ripoff Report about Global Royalties and their management, including a post calling the company a “scam.” After being contacted by lawyers for Global Royalties, Sullivan asked Ripoff Report to take down his posts–something that Ripoff Report adamantly refuses to do.

In 2006, Global Royalties sued Sullivan and Xcentric in an Ontario court and ultimately got a default injunction against Xcentric. Global Royalties then sought to have the injunction enforced in the US. The Arizona court declines to do so, saying that the international treaties don’t require cross-border enforcement of injunctions.

Since the parties were in court anyway to try to enforce the Canadian injunction, Global Royalties made a defamation claim against Xcentric under US law. As it has done many times in the past, Xcentric moves to dismiss (12b6) per 47 USC 230. The court says it isn’t sure if 230 supports a 12b6 (see, e.g., the Subway case) but it dismisses anyway (with leave to amend) saying that discovery would be irrelevant. Ripoff Report’s decision to leave up third party content (Sullivan’s posts) in the face of a takedown request is an editorial judgment protected by 47 USC 230. Case dismissed.

I can see why plaintiffs would be upset about this ruling. Unlike many other 230 cases, the original author tried to retract the content but the publishing website (Ripoff Report) refused the request. This is, of course, a quintessential editorial decision, but it’s also one where the original author has disavowed his original statements, putatively leaving the publishing website as the only one standing behind those words. If, in fact, those words are untrue and the author has disavowed them, the continuing publication of those words without anyone being liable is troubling. On the other hand, 230 immunization leads plaintiffs to routinely put pressure on individual/poorly-funded authors to take down their words regardless of the plaintiff’s merit, so the 230 defense acts as a buttress against that bypass.

One other interesting note. The court notes that Ripoff Report provided Sullivan with a choice of titles for his posts, including “Con Artists.” This sounds a lot like the structured data at issue in the Roommates.com case, but just like the recent Doe v. SexSearch case, the court simply ignores the Roommates.com opinion (which is binding precedent on an Arizona federal court). Instead, the court dismisses this interaction, saying “[t]his minor and passive participation in the development of content will not defeat CDA immunity.”