Co-Website Operator Gets 47 USC 230 Defense–Best Western v. Furber

By Eric Goldman

Best Western International, Inc. v. Furber, 2008 WL 4182827 (D. Ariz. Sept. 5, 2008). The CMLP page.

In my Co-Blogging paper, I wrote about my uncertainty whether co-bloggers would be able to claim 47 USC 230 for the content/actions of their co-bloggers. This case hardly resolves the issue, but the court does grant 230 dismissals to co-website operators for all posts they did not author.

Three defendants claim 230. Furber is one of the website operators. There are three alleged facts at issue:

* Furber “created the website homepage to solicit content from others”

* he publicly posted emails he received from others

* he “created and posted a “Site Master Notice Post” stating that some posts were being moved to an alternative website”

Acknowledging these three facts, the court gives Furber a 230 dismissal for any posts he did not create or develop. He is still potentially on the hook for 12 posts he made himself. It’s interesting that the court cites the case to say that Furber isn’t liable for soliciting content from others.

Loren Unruh’s only involvement in the website operations was that he allegedly “solicited content from others through his marketing of the website.” This is an easy 230 dismissal.

On the other hand, Nidrah Dial is denied a 230 defense for acting as the typing agent/scrivener for her husband’s dictated comments. The court said that a jury could find that the posts were a collaborative effort. I think this is right, but I find this discussion really interesting because this is exactly the kind of hypothetical example that judges have pondered and struggled with in trying to determine 230’s limits. Also interesting: the opinion seems to leave open that Nidrah might still get 230 if she can show that she was a passive recorder of a third party’s thoughts (her husband’s).

The rest of this case is pretty interesting, too. It involves an effort by the Best Western hotel chain to shut down a group of dissident franchisees (technically, in this case, members of a non-profit corporation). The court sees through this campaign and largely shuts it down, cleaning out a lot of Best Western’s causes of action and rejecting some of their ludicrous damages claims. Overall, the case is a good example of a plaintiff that initiated a litigation armageddon that has almost no chance of turning out well for anyone but the lawyers.