Fraud Allegations Don’t Trump 47 USC 230–Hopkins v. Doe

By Eric Goldman

Hopkins v. Doe #1, 2011 WL 5921446 (N.D. Ga. Nov. 28, 2011). The initial complaint. Hopkins’ lawsuit-related website.

This lawsuit relates to allegedly defamatory statements that Does made about Hopkins on Topix. As a pro se, Hopkins sued both the Does and Topix. Topix naturally invoked 47 USC 230, and the court easily concludes that it qualifies for the immunity. The court says:

At bottom, Plaintiff seeks to hold Topix liable for simply publishing the defamatory conduct and the consequences which flow from that decision….All of Plaintiff’s state-law claims are preempted by the CDA’s immunity, and Plaintiff has therefore failed to state a claim.

It appears the plaintiff tried to work around 47 USC 230 by arguing that Topix had made on-site promises to address problematic content and Topix didn’t uphold those promises. The court rejects the workaround: “It does not matter that Plaintiff has attempted to skirt this preemption by alleging that Topix fraudulently violated its own policies by not policing its content in a timely fashion.” This is unquestionably correct (see, e.g., the uncited Milo v. Martin), but it reinforces that breach of contract workarounds to 47 USC 230 don’t necessarily work. For more on the 230/contact interplay, see my recent article on online account terminations.

Hopkins appears to have taken this defeat in stride and is now refocusing his attention on the correct targets. He posted a statement on his website about this ruling:

The Federal Court basically ruled that Topix is completely protected under the Communication Decency Act of 1996 (CDA) which basically allows Internet Providers to act Indecently. So they dismissed Topix, and then remanded the case back to Superior Court in regards to all the John Does, which I will now focus on.

So I tried. I did the best I could. Many people reviewed my work and said that it had as good a chance as anything they could imagine. But inthe end the lesson learned seems to be that until Congress changes hte CDA, then people like Chris Tolles, running companies like Topix, have a free reign to allow Indeecent Communications to flourish and destroy lives. Chalk one up for evil. But we fought. Sometimes that is enough. Now we need to see where this goes.

As for me – I am now hunting certain John Does.