Section 230 Doesn’t Protect Email Forwarding of Screenshotted Tweets?–Maxfield v. Maxfield

This case is a spinout ancillary lawsuit from the main divorce proceedings between the parties, and neither party was represented by a lawyer in this case. Given those attributes, this case may not be good precedent, but I’m blogging it anyway because of its topicality.

At issue are the following tweets, now apparently offline, made through a pseudonymous Twitter account @AvaAlex1:

(1) “@kristencusato and he’s got more than one STD# guess where that came from?# ”;
(2) “@kristencusato if you want to meet in person to discuss more I’d be happy to do so. let me know# ”;
(3) “@kristancusato he’s a loser, don’t be a loser too. don’t walk-run. If you stay w/him you’ll only look stupid# ”;
(4) “@kristencusato he lies, he deceives, why do you think he’s on his 2nd divorce, you deserve better. don’t be fooled by his charm# ”;
(5) “@kristencusato # jim maxfield is charming but a player. He’ll dump u as soon he’s on to his new conquest. A narcissist. ur2smart4that.”

We don’t know who’s behind AvaAlex1, but James thinks it may be his ex-wife Rosemary or someone working with her. We also don’t know what happened between James and Kristen Cusato, but the case says James is now married to a different woman, Lara Gold.

Unhappy about the tweets, James screenshotted the offending tweets and emailed it to Rosemary, asking her to delete them. Rosemary forwarded the screenshot to Lara and the guardian ad litem representing their children in the divorce proceeding. James then sued Rosemary for defamation.

Rosemary defended on Section 230 grounds. The court applies Vazquez v. Buhl, which I believe is binding precedent on this court. The Vazquez court dealt with slightly different facts–in that case, the defendant posted links to allegedly defamatory content rather than forwarding a screenshot–but the net result ought to be the same. If it’s third party content, Section 230 doesn’t care how the content is delivered.

Even though the court identified the right precedent, the court botched its application:

Ms. Maxfield does not operate a website and plainly is not “a provider of an interactive computer service.” While she might, on occasion, be considered a “user of an interactive computer service,” she did not do so in the behavior alleged in the complaint. She merely transmitted a defamatory message to individuals via the internet.

In a footnote, the court adds “Also, the defendant does not explicitly raise any argument based on her status as a user, and, therefore, the court need not address it.”

Unfortunately, the court misses numerous directly-on-point email forwarding cases, including Mitan v. A. Neumann, Phan v. Pham, John Doe Anti-Terrorism Officer v. City of New York, Barrett v. Rosenthal and Batzel v. Smith. Further, the court apparently thinks that characterizing Rosemary’s behavior with the verb “transmits” sufficiently distinguishes Rosemary from other ICS providers. Yet, the court earlier acknowledges that “defendant’s transmission would constitute publication under the common law,” so clearly James’ defamation lawsuit seeks to hold Rosemary liable for “publishing” the screenshot–exactly what Section 230 preempts. If this issue were properly litigated on appeal, I’d like to think the appellate court would correct this obvious error.

(One caveat: if Rosemary was actually AvaAlex1, the tweets would be her first-party words and Section 230 wouldn’t apply. The court didn’t explore this scenario, though I wonder if it was on the judge’s mind nevertheless).

Although the court made an unfortunate legal mistake on Section 230, it’s unlikely Rosemary will appeal because she won summary judgment anyway. The court says the Twitter comments weren’t defamatory per se. Although the tweets reference a “loathsome disease,” that’s per se defamatory only when it’s slander, not libel. James didn’t introduce sufficient evidence that the tweets damaged his reputation to survive summary judgment.

I’ve never been a fan of making distinctions between libel and slander, and the court doesn’t acknowledge the extensive debate about whether electronic content such as emails should be treated as “oral” or “written” for the libel/slander distinction. So the court reaches the correct result (no liability for Rosemary) using counterintuitive predicate conclusions that (1) saying a former spouse has multiple STDs doesn’t damage his reputation, and (2) someone forwarding a third party’s email could be liable for the veracity of the forwarded contents. As I said at the beginning, I’m reporting what I see in courts, not what I believe will predict future cases.

Case citation: Maxfield v. Maxfield, 2015 WL 9809777 (Conn. Superior Ct. Dec. 18, 2015)