1H 2017 Quick Links, Part 6 (Defamation, Section 230, Consumer Reviews)

Defamation

* Gillon v. Bernstein, Civ. No. 2:12-4891 (WJM) (D.N.J. Nov. 3, 2016). No liability for negative Ripoff Report.

* Jackson v. Mayweather, 2017 WL 1131869 (Cal. Ct. App. March 27, 2017). CA’s anti-SLAPP law protects the following Facebook/Instagram post: “the real reason me and Shantel Christine Jackson @MissJackson broke up was because she got an abortion, and I’m totally against killing babies. She killed our twin babies. #ShantelJackson #Floyd Mayweather #TheMoneyTeam #TMT”

* Gottwald v. Geragos, INDEX NO. 162075/201 (N.Y. Sup. Ct. April 18, 2017). Allowing a twibel lawsuit to proceed.

* Snow Systems, Inc. v. Tanner, 2017 WL 716047 (Ill. Ct. App. Feb. 22, 2017):

“an internet posting on a publicly accessible website like the Ripoff Report is, in essence, a type of “mass-media publication,” and as such, is not subject to the discovery rule.”

and

“the Craigslist Posting contained a single word, “Beware” and a hyperlink that directed the reader to the Cook County Clerk of the Circuit Court’s electronic docket, which contained a list of lawsuits in which Snow Systems has been a party since its incorporation. Plaintiffs do not suggest that the information displayed on the electronic docket is in any way inaccurate. Moreover, even when the docket list is construed in conjunction with the word “Beware,” the Craigslist Posting is not inherently negative or defamatory. The word “Beware” is a very broad, non-specific admonishment, and as such, does not satisfy the heightened specificity and particularity requirement applicable to defamation per se claims. Moreover, although the term “Beware” when read in context with the electronic docket list can be interpreted in a way that disparages Snow Systems as a business, it can also, as Tanner correctly observes, be subject to a number of innocent innocuous interpretations, “including a warning to other business regarding the litigiousness of society, a warning about conducting business in Cook County, and a warning about [the dangers] of operating a snow business in Chicagoland.” Given that the admonishment may be reasonably innocently interpreted, it is not actionable per se.”

* Ars Technica: History by lawsuit: After Gawker’s demise, the “inventor of e-mail” targets Techdirt

Section 230

* Doe v. Oesterblad, 2015 WL 12940181 (D. Ariz. June 9, 2015). This showed up in Westlaw inexplicably late.

The TAC alleges that each of these Plaintiffs have been required to register as sex offenders. The TAC also alleges that Defendant had the “names, photos, and other personal information” of these Plaintiffs pulled from preexisting non-profit and government websites and subsequently displayed this information on at least one of his websites ([also] stating that the contents of websites at issue are “virtually the same” and each was “based upon a database of about 775,000 profiles of individuals previously required to register as sex offenders throughout the United States”). Although Plaintiffs argue in their Response that Defendant “assembled, arranged for presentation, [and] organized [Plaintiffs’ information] into a form designed to send a particular message,” the TAC contains no similar allegations. Even so, the Court cannot conclude that these actions go substantially beyond the traditional editorial role of a publisher. The Court also cannot conclude that an interactive computer service provider only qualifies for protection under Section 230 of the CDA if it maintains a “neutral bulletin board” on which internet users post comments. Although online messaging boards may be the prototypical service qualifying for statutory immunity under the CDA, the Ninth Circuit and other appellate courts have not limited CDA immunity to those websites that merely passively display content created by third parties. Because the Court concludes that the TAC fails to allege that Defendant was responsible for the development or creation of information related to Plaintiffs John Does #1-6, the CDA bars their claims.

The Court will not dismiss the claims of Plaintiffs John Doe #8, Jane Does #9-10, John Doe #11, and David Ellis under Section 230 of the CDA. The TAC alleges that these Plaintiffs have never registered as sex offenders or been convicted of a sex-related offense.The TAC specifically alleges that Defendant obtained the personal information of Plaintiffs required to register as sex offenders from existing databases, but “[p]ersonal information regarding the remaining Plaintiffs was subsequently added by Defendant.” (noting that Defendant “is the only person who adds content or removes content” from the websites listed in the TAC). On at least one or more of his websites, Defendant falsely identified these Plaintiffs as individuals required to register as sex offenders. Based on these allegations, the Court could reasonably conclude that Defendant created a portion of his websites’ content by adding the personal information of those Plaintiffs not listed on preexisting sex offender registries and misidentifying them as individuals who have been convicted of a sex-related offense. Because the TAC sufficiently alleges that Defendant was responsible for his websites’ content concerning Plaintiffs John Doe #8, Jane Does #9-10, John Doe #11, and David Ellis, Defendant is not entitled to CDA immunity for their claims.

* Nail v. Schrauben, 2016 WL 8737183 (W.D. Mich. Jan. 22, 2016): “Plaintiff does not allege that Defendants made the determination that Plaintiff was a sex offender or reported, posted, or otherwise published such in the first instance. Plaintiff likewise does not allege that Defendants modified, edited, or otherwise altered the information in question. Instead, Plaintiff merely alleges that Defendants operated a website which posted, or directed individuals to, information created by a third party. Plaintiff alleges that this conduct constitutes various torts under state law. As discussed above, however, Defendants enjoy immunity from such claims. ”

* Federal court denies habeus corpus petition of Kenneth Gourlay, who provided web hosting (and other) services to an underage child who published child pornography. Gourlay was convicted without  the jury hearing about Section 230. Gourlay v. Barrett, 2017 WL 1329434 (E.D. Mich. April 11, 2017). Prior blog post.

* Ramirez v. Boost Mobile/Sprint, 2017 WL 2535871 (N.D. Cal. June 12, 2017): “Plaintiff has identified the CDA as a potential claim, however, the CDA is used as a tool for immunity by interactive computer services. Furthermore, Plaintiff has failed to identify what information was provided. Therefore, Plaintiff has failed to plead a CDA claim.”

* The Economist: Internet firms’ legal immunity is under threat

* Washington Post: Backpage has always claimed it doesn’t control sex-related ads. New documents show otherwise. A counter-perspective from Elizabeth Nolan Brown at Reason.

* Jeff Kosseff, “Twenty Years of Intermediary Immunity: The US Experience,” 14:1 SCRIPTed 5 (2017). Read the whole thing, but a highlight:

Although the US approach to intermediary immunity is not without its flaws and inequities, it demonstrates that even under a system of robust intermediary immunity, online platforms will develop reasonable safeguards for users.

Also:

It is difficult to conceive of how online user reviews – at least in their current form – could continue to exist in the United States without Section 230. User reviews often are blunt, harsh, and, in some cases, subject to factual dispute. The businesses that are the subjects of these reviews may file defamation lawsuits, seeking to be compensated for what they believe are false claims in the user reviews. The people who posted the allegedly defamatory content may have used an anonymity service such as Tor, allowing them to mask their true identities, therefore making it difficult for the subject to name them in a lawsuit. Moreover, even if the posters are identifiable, they may not have sufficient assets to make a defamation lawsuit worthwhile for the plaintiff. Accordingly, the sites hosting the user comments may be an easier and more attractive defendant for a defamation lawsuit.

Section 230 generally has prevented such lawsuits, allowing sites such as Yelp and other consumer review services to act as neutral intermediaries without facing the burden of pre-screening every user comment for accuracy.

* Sekiya v. Facebook, 2017 WL 3084476 (D. N.M. July 17, 2017):

Plaintiff asserts invasion of privacy claims against Defendants Mark Zuckerberg and Facebook. Plaintiff alleges Defendants Zuckerberg and Facebook have not shut down Plaintiff’s Facebook account which Plaintiff has not been able to access for over three years. Plaintiff also alleges that Defendants James Comey, FISA and NSA have not stopped Zuckerberg and Facebook from showing videos on Plaintiff’s Facebook account.
*2 Plaintiff has previously filed two complaints asserting privacy claims against Zuckerbeg and Facebook based on the same facts. See Sekiya v. Facebook, No. 16cv1368 KG/SCY (D.N.M.); Sekiya v. Zuckerberg, No. 17cv283 JCH/KK (D.N.M.). Judge Gonzales dismissed the complaint against Facebook and the unknown owner of Facebook stating:

Defendants are immune to Plaintiff’s cause of action. The Communications Decency Act, 47 U.S.C. § 230, “creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.” Zeran v. America Online, Inc., 129 F.3d 327, 330 (D.C. Cir. 1997); 47 U.S.C. § 230(c)(1) (“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider”). “Facebook qualifies as an interactive computer service.” Klayman v. Zuckerberg, 753 F.3d 1354, 1357 (D.C. Cir. 2014).

Doc. 5 at 3, in Sekiya v. Facebook, No. 16cv1368 KG/SCY. Judge Herrera dismissed the complaint against Zuckerberg for the same reasons. The Court will dismiss the claims against Defendants Zuckerberg and Facebook in this case without prejudice because they are immune to Plaintiff’s claims pursuant to the Communication Decency Act as discussed by Judge Gonzales and Judge Herrera. The Court notifies Plaintiff that it may impose filing restrictions on Plaintiff if he continues to file privacy claims against Mark Zuckerberg and Facebook based on the facts alleged in this case and his cases before Judge Gonzales and Judge Herrera.

Consumer Reviews

* OnMedica: Increasing number of doctors upset by ‘Trip Advisor’ style online ratings. Related essay.

* Ars Technica: “IoT garage door opener maker bricks customer’s product after bad review.” Does this expose a gap in the Consumer Review Fairness Act? I’m going to add this incident to my primer.

* Consumerist: Jewelry Store Worker Ordered To Pay $34.5K For Posting Fake Yelp Review Of Rival

* Consumerist: Study Finds Paying For Online Reviews Leads To Fewer Reviews. An interesting coda to why Epinions failed where Yelp succeeded?

* Wired: ROTTEN TOMATOES AND THE UNBEARABLE HEAVINESS OF DATA

* AdWeek: Even Bad Online Reviews Can Be Very Good for Business, New Study Finds