Blog Host Can’t Be Bound by TRO for User Posts (Blockowicz redux)–Bobolas v. Does

By Eric Goldman

Bobolas v. Does 1-100, 2010 WL 3923880 (D. Ariz. Oct. 1, 2010)

This lawsuit involves, a Greek-language blog/website that appears to criticize Greek real estate and media mogul George Bobolas (ranked as one of the top 10 wealthiest Greeks in 2009). I say “appears” because the site is in Greek and Google’s translation was indeterminate. Given the blog is in Greek and targets Greece-focused issues, it’s not clear which, if any, bloggers are located in the US, but the court assumes that one or more Does are US residents.

Bobolas seeks a TRO against both the blog authors and against non-party GoDaddy, which appears to host the blog and act as its domain name registrar.

The court asks why Bobolas didn’t sue GoDaddy. Bobolas’ attorney correctly replied that 47 USC 230 immunizes GoDaddy (see, e.g., GoDaddy’s easy win in the Kruska case), but the court then observes that “Plaintiff has cited no authority suggesting that GoDaddy cannot be named as a defendant solely for purposes of effectuating injunctive relief.” I’ve consistently taken the position that 230 preempts all form of relief, both monetary and injunctive, so I would cite the statute as the authority the judge seeks. Indeed, I would argue that suing GoDaddy for provisioning services to the blog should be sanctionable, so Bobolas’ attorneys got it 100% right proceeding with GoDaddy as a non-party.

But Bobolas’ attorneys got it 100% wrong thinking they could bind GoDaddy to injunctive relief as a non-party. I last addressed this issue in connection with the Blockowicz opinion from almost a year ago. FRCP 65 binds non-parties to injunctive orders only when the non-parties are related to the defendants, such as their agents or acting in concert with the defendants. As a garden-variety service provider to the blog, GoDaddy isn’t anywhere close to the required level of interaction sufficient to be bound by FRCP 65. The court says:

Plaintiff’s counsel argued that GoDaddy is an agent of Defendants given its role as website host and domain name registrar, but Plaintiff has made no such allegation in the complaint and provides no factual or legal proof on this point in its papers. As a result, the Court cannot enter a TRO against GoDaddy.

The court goes on to cite the Blockowicz precedent, saying “some courts have held that injunctions requiring defendants to remove defamatory statements from a website cannot be enforced against non-party website hosts like GoDaddy….Plaintiff does not address this authority.”

The court doesn’t say it outright, but the net effect of this ruling is that (like in Blockowicz) the plaintiff may end up with no ability to judicially force the content off the Internet. Bobolas may not be able to find the Does, or they may not be in countries that will recognize Bobolas’ claims, or US courts may not recognize a foreign injunction (see Global Royalties v. Xcentric). If the content is truthful, this is a great outcome; if the content is wrong, it is less than optimal.

Of course, even without judicial compulsion, GoDaddy could help out Bobolas voluntarily. I’ve noted before that GoDaddy is not the fiercest champion of its users’ interests (1, 2). As a result, a more likely scenario is that GoDaddy will intervene in deference to even minimal judicial provocation. In contrast, the Blockowicz conundrum arose only when Ripoff Report declined to honor a default judgment.

In any case, seeking a TRO against critical content is misdirected. The court rejects the TRO against the US Does, saying that Bobolas hasn’t been able to show that the allegedly defamatory posts were made by them and did not provide enough evidence to support that the published statements were actionable defamatory (as opposed to non-actionable opinions or lacking the requisite scienter). The court also rejects a request to shut down the blog entirely, properly noting that doing so would be an impermissible prior restraint.

UPDATE: Paul Levy adds some thoughts about the lack of jurisdiction.