Section 230 Protects Hyperlinks in #MeToo “Whisper Network”–Comyack v. Giannella

This case involves what the defense calls a “whisper network,” described by Wikipedia as “an informal chain of information passed privately between women.” The subject of this whisper network is Comyack, a former bartender in New Jersey. However, the information wasn’t shared only privately. The whisper network posted online that Comyack had allegedly engaged in sexual misconduct and spiked women’s drinks with date-rape drugs. Comyack responded by suing a number of participants in the whisper network for defamation and related claims. In a complex and somewhat confusing opinion, the court dismisses many of the claims.

I’ll focus only on the Section 230 aspect of the ruling, but I encourage you to read the whole thing if you’re interested in the interface between defamation law, #MeToo, and online group discussions. There could also be implications for cybermobbing liability.

The court summarizes Section 230 by saying “The CDA is absolute, rather than qualified, in its sweep and effectively functions as an absolute common law privilege.” I agree with the absolute language, but this is still a confusing statement. Section 230 isn’t a common law privilege; it’s a statutory immunity.

The court includes a table of the claims potentially subject to Section 230. They include:

  • a post on Facebook to a Reddit URL without further comment
  • a post on Facebook to an Instagram URL without further comment
  • a post on Facebook of third party content from an unspecified source with some additional comments added by the poster
  • a post on the Fraternal Order of Bartenders website of third party content from an unspecified source with some additional comments added by the poster

The court says:

With respect to these republications, WN Defendants and McGann were acting as “user[s] of an interactive computer service,” namely the online platforms on which they republished the content. That WN Defendants and McGann resposted [sic] messages originated by anonymous users or users whose identities were known to them does not affect the broad immunity granted to them by the CDA. [cite to Donato v. Moldow from 2005] Therefore, such republications are absolutely privileged under the CDA, and any state law claims complained of as to such statements are precluded by the CDA

This is a nice example of how Section 23o protects ICS users, not just providers.

The court explains why it dismisses without prejudice:

Comyack speculates, without citation or evidence, that the cited statements made by WN Defendants and McGann may have been concocted from “throw away” accounts that they themselves created. Comyack’s allegations are not supported by any Certification of any witness or party but are simply his (conspiracy) theory that has no apparent basis…given that no discovery has yet occurred with regards to Comyack’s claims, the Court will only enter a dismissal of these “republished” statements or comments without prejudice

This “defendants wrote it” argument has worked to defeat motions to dismiss in some cases (like Huon), but here the court expresses skepticism about the conspiratorial implications of the complaint–and demands more supporting evidence. Good.

It’s pretty well accepted that Section 230 applies to content at the terminus of hyperlinks (see Marfione v. Kai and Vazquez v. Buhl). This case adds to that jurisprudence. This ruling also apparently addresses embedding of some of the linked content into social media timelines; i.e., Facebook automatically provided previews of the linked URLs, which caused some of the allegedly defamatory content to appear in the Facebook timelines. The embedding/previewing function didn’t change the court’s conclusion–nor should it–but those facts may slightly advance the Section 230 hyperlinking jurisprudence.

Case citation: Comyack v. Giannella, 2020 N.J. Super. LEXIS 49 (N.J. Superior Ct. April 21, 2020). Some background.