Web Host Denied 230 Defense When It Allegedly “Actively Contributes” to Website–Kruska v. Perverted Justice

By Eric Goldman

Kruska v. Perverted Justice Foundation Incorporated.org, 2010 WL 4791666 (D. Ariz. Nov. 18, 2010). The CMLP page.

I previously posted on this lawsuit in 2008, when the court dismissed GoDaddy as a defendant. This ruling deals with a motion to dismiss by Christopher Brocious, whose relationship to this lawsuit isn’t well explained in this opinion. The court treats him as a web host but denies his motion to dismiss based on 47 USC 230. The primary substantive discussion:

in her Amended Complaint, Plaintiff alleges that Defendant not only acted as “moderator,” “legal owner, copyright holder, webmaster/IT person and contributor” to two websites containing content that gave rise to Plaintiff’s lawsuit, he also allegedly “actively contributes to [the websites’] content.” (Doc. 140 at 5-7.) Plaintiff also contends that Defendant and others worked in collusion to post and repost materials about Plaintiff. (Doc. 140 at 30). Based upon Plaintiff’s allegations, Defendant arguably was an “information content provider” who is “responsible, in whole or in part, for the creation or development of information” allegedly posted about Plaintiff. § 230(f)(2)-(f)(3). Thus, the Court will not dismiss Plaintiff’s claims under § 230 at this stage of the litigation.

This ruling reminds me a little of the recent Swift v. Zynga, where the court also accepted fairly sweeping allegations from the plaintiff to defeat a 230-based 12(b)(6) motion.

Like that ruling, this appears to be a bad ruling. Based on a thick stack of precedent, it’s 100% clear that Brocious’ status as content moderator, copyright owner and webmaster should not make him liable for third party content. Further, I think it’s pretty clear that “collusion” with third parties does not reduce the 230 eligibility. Typically, “collusion” is just a code word for exercising editorial discretion, which is squarely protected by 230. This post recaps some of the caselaw on that point.

However, “active contribution” to a third party defamatory post could defeat a 230 motion, but only if the defendant actually “contributed” defamatory material him/herself. It’s irrelevant for plaintiffs to show that defendants made some contribution to their own websites; they still get full 230 protection for any third party content even if they do so. Further, under Twombly/Iqbal, simply alleging an “active contribution” to third party content should not be sufficient to defeat a 12(b)(6); the plaintiff should have to marshal more facts connecting how the defendant’s contributed content caused the defamation. The court’s unwillingness to insist that the plaintiff allege those connections in the complaint appears to be a pretty obvious error.

Like the judge in Swift v. Zynga, it appears this judge was reluctant to use 12(b)(6) to end the case on 230 grounds at the earliest stage, preferring to give the plaintiff a chance to connect the dots. In this case, it’s ironic because this judge gave GoDaddy such an easy 230 defense 2.5 years ago, saying at the time that “this immunity has proved nearly limitless.” And in this case, already going nearly 3 years, I’d expect the plaintiff to be able to make more precise factual allegations than conclusory assertions of “active contribution.”

In any case, it would be a disaster if judges get timid about using 230 to kick out meritorious defenses on 12(b)(6) grounds. Defendants incur lots of expenses after a 12(b)(6), both on discovery and additional motion practice, and it would facilitate the immunity’s intent for judges to demand more specificity from plaintiffs before plaintiffs are allowed to impose those costs on defendants.