Story Byline May Affect Section 230 Immunity–AdvanFort v. Maritime Executive

Photo credit: "armed guard on board sea going vessel in aden gulf" // ShutterStock

Photo credit: “armed guard on board sea going vessel in aden gulf” // ShutterStock

I previously blogged this case in May. The underlying facts involve the arrest and ultimate release of a ship’s crew that was armed to combat piracy. I’ll focus just on the Section 230 issue. A person involved in the underlying indicent wrote an allegedly defamatory article about the incident and submitted it to an industry publication, the Maritime Executive. In the May ruling, the court said that the publication qualified for Section 230 immunity but gave the plaintiffs a chance to try again.

Although the plaintiff cites a long list of reasons why Section 230 shouldn’t apply, the court focuses on two issues:

First: the plaintiff introduced evidence that could indicate the article ran in a newsletter print edition. (I don’t understand why the plaintiff didn’t just introduce the hard copy story if it exists–is it that hard to get a hard copy of the newsletter?). The court correctly says that Section 230 doesn’t apply to any print editions. Cf. Sandler v. Calcagni, Gardner v. CafePress. So if the plaintiff can find this hard copy, that part of the claim against the magazine can continue.

Second: a copy of the article contained the byline “BY MAREX.” The court says this allegation could support an inference that the magazine was the information content provider. This reminded me of the cases asserting that Section 230 doesn’t apply when the plaintiff claimed ownership of the third party content, sometimes as evidenced by the copyright notice. See, e.g., Schneider v. Amazon; Finkel v. Facebook. Those arguments have all failed. Furthermore, I interpret “BY MAREX” in this context as an indicator of the publication venue, not the author. Still, this court apparently sees how the story is attributed as possibly relevant to the immunity. It’s an easy fix for any online publication venue trying to ensure Section 230 immunity: make sure the content is bylined by its author, and don’t add your own byline or source identifier without making the connection to the author clear.

The plaintiffs get yet another chance to amend their complaint to address these facts, so it seems likely this case will produce a third Section 230 ruling on a motion to dismiss.

Case citation: AdvanFort Co. v. Maritime Executive, LLC, 2015 WL 4603090 (E.D. Va. July 28, 2015).