Website Gets 230 Immunity Despite Claim of Site Content Accuracy–Milo v. Martin

By Eric Goldman

Milo v. Martin, 2010 WL 1708895 (Tex. App. Ct. April 29, 2010)

This case involves allegedly defamatory “guestbook” messages posted by unknown users to a website entitled “The Watchdog.” Framed like that, the precedent says the website should get an easy and uncontroversial 47 USC 230 dismissal (and IMO Rule 11 sanctionable).

The plaintiffs try to get around 230 by citing The Watchdog’s first page, which contained the following statements:


The unfiltered truth about Conroe politics and your tax dollars.

The Watchdog is a monthly publication by newsletter and website. It contains facts believed to be totally accurate by sources with character and truthfulness as their primary attributes. Our agenda is the truth and nothing less. Our sources and any information obtained are absolutely confidential and will remain so.

The plaintiffs argue that by asserting the website content’s accuracy, The Watchdog “developed” the defamatory content and thus became a content provider of the user-supplied content. The majority doesn’t bite, saying:

The Watchdog’s failure to verify the accuracy of the information in the posts in issue here does not, in itself, make the Watchdog the “information content provider” of the defamatory statements about which [the plaintiffs] complain.

The court further rejects the plaintiff’s arguments on several other grounds:

* this statement was not a guarantee against inaccuracies on the site

* the statement doesn’t apply to the guestbook, which readers would have quickly assessed was not an area the site operators were policing for accuracy, especially because users had posted critical views of The Watchdog to the guestbook.

In its concluding remarks about the defamation claim, the court (like so many others) cites for the defense, saying that the plaintiffs did not provide any evidence that The Watchdog itself layered the allegedly unlawful material onto the user-supplied content.

The majority opinion sidesteps whether 230 would preempt an intentional infliction of emotional distress claim (it does if the claim is based on third party content—see, e.g., Barnes and Friendfinder), instead concluding that The Watchdog lacked the requisite scienter/bad faith.

The majority opinion concludes with a gratuitous parting shot at Congress:

We note our concern that section 230 does not provide a right to request a website’s owner to remove false and defamatory posts placed on a website by third parties, and does not provide the injured person with a remedy in the event the website’s owner then fails to promptly remove defamatory posts from its site, at least in the absence of extreme and outrageous circumstances that are not present here. Instead, Congress chose with only narrow exception to protect internet service providers from their potential liability for publishing false and defamatory content when that content is created by third parties and when the interactive computer service has not acted as an information content provider. Despite our concerns about section 230’s breadth, the trial court did not err in applying section 230 to render summary judgment in this case.

Get in line with the other judges that dislike 230. It’s a growing queue.

The concurring opinion bristles with even more hostility towards 230. I don’t think I can do it justice by trying to summarize the arguments, in part because they are novel bordering on nonsensical. If I understand the concurring judge’s arguments correctly (a big if), he collapses 230(c)(1) and 230(c)(2) into a single operative provision and uses the “good faith” language from 230(c)(2)(A) to restrict the availability of the 230(c)(1) immunity. This would be a crazy (mis)reading of 230, and fortunately the majority judges’ cooler heads prevailed.

The concurring judge uses his odd logic to conclude that “In my view, if a malicious website operator intentionally and unreasonably refuses to delete an anonymous third-party’s obviously defamatory statement, a claim based on an intentional tort may be asserted in the appropriate circumstances against the operator under Texas law.” I suspect this is why the majority sidestepped a definitive conclusion that 230 preempts intentional infliction of emotional distress claims and ruled instead on scienter grounds. Even the concurring judge agreed that the defendants here did not engage in the required “extreme and outrageous” conduct by failing to remove the post because (1) the plaintiffs didn’t make the removal request until after the litigation started, and (2) at that point, the defendants relied on their counsel’s advice not to remove the post (presumably for evidence spoliation purposes).

Even though we get some fresh/novel/crazy readings of 230 here, the opinions suggest that everyone involved in the litigation missed at least two key points:

1) the takedown/stay-up decision is an editorial one, and 230 categorically protects these editorial decisions however they come out. So all of the concurring opinion’s machinations about the website’s decision not to remove are completely immaterial in light of 230.

2) the plaintiffs might have had more success with a Mazur-style attack, skipping the defamation claim against the website and instead trying to hold the website liable for its first party marketing representations. Here, the website voluntarily announced that it “contains facts believed to be totally accurate by sources with character and truthfulness as their primary attributes.” What, if anything, did the website do to make that statement correct with respect to the guestbook postings? If the answer is nothing, that creates an opportunity to hammer the defendants for possibly bogus marketing representations. The Mazur attack might not have succeeded even in this case; the majority opinion indicates that site visitors would not have assumed the marketing representations extended to the guestbook postings. Nevertheless, it would have been interesting to see the discussion (especially given both the majority and concurring judges’ antipathy towards 230) if the plaintiffs had framed this case about the marketing representations specifically and not the defamatory postings.

For more on the interplay between marketing representations and 230, see, e.g.:

* 47 USC 230 and Consumer Protection Talk Notes

* 47 USC 230 Talk at Fordham

* Ninth Circuit Mucks Up 47 USC 230 Jurisprudence….AGAIN!?–Barnes v. Yahoo