Friday, May 14, 2010

ReTweet ReLawsuit? Novins v. Cannon, Civ. No. 09-5354 (DNJ April 27, 2010)

Phishing Scams

I am grateful for the new Web 3.0 era of Facebook and Twitter. I am grateful because my email inbox is no longer filled with stupid crap that my friends were constantly forwarding. I think that's why so many old folk like Facebook and Twitter – it is the institutionalization of forwarding crap. All those old jokes and hoaxes and puppies needing adoption and cancer patients in England who wish to be sent letters – that has all migrated to Facebook posts and Tweets. And instead of getting forwarded half of a billion times, now it gets retweeted. And now my email inbox is merely filled with offers of money making opportunities.

Which brings us to today's question: What happens when I retweet (forward, repost, whatever) a post which is defamatory? Sec. 230, the Good Samaritan Act, protects internet hosts which host content written by someone else that is defamatory. The internet host does not become a publisher of the content just by merit of hosting it (much in the same way that the telephone network does not become a publisher by transmitting defamatory statements, or the postal service does not become a publisher merely by delivering a defamatory message). What happens when I receive a message, written by someone else, that might be defamatory (regardless of whether I know it or not), and I forward it, retweet it, or repost it. And what if, hypothetically speaking, my last name is Cannon. Today's story involves just such a saga.

As always, in our review, the names have been changed – largely 'cause we never like to hear about anyone named "Cannon" being a defendant – and the story has been reformatted to fit your screen.

The facts of this case are relatively simple. Defendant Gilligan allegedly wrote a post that allegedly stated that Plaintiff Thurston Howell hires drug addicts, his clients suffer identity thefts, and that Plaintiff is mentally ill. Gilligan sent this message to Mary Ann, Ginger, and Skipper, who forwarded on to three friends (and so on and so on). Thurston Howell took his coconut satellite phone that the Professor had made for him, and used it to immediately call his attorney who was on retainer. The attorney sued everyone in sight for publication of a defamatory message about Thurston. The cause of action for defamation falls not only on those who voice the defamatory utterances, but also those who might then dare to "publish" those utterances.

Before the District Court in New Jersey (yes, somehow although our castaways are stranded in an island in the south Pacific, their case is heard in Jersey – makes sense doesn’t it?) is a motion to dismiss by defendants. In a Rule 12(b)(6) Motion to Dismiss, defendants argue that taken the alleged facts in light most favorable to Plaintiff, Plaintiff still has stated nothing that adds up to a legal cause of action.

The Court made quick work of this. Normally Sec. 230 protection is discussed in the context of the protection of a web host, such as a review site where a third party has posted a negative comment about a plaintiff. This case does not involve a host but instead "users of an interactive service." As Sec. 230(c)(1) states, "[n]o 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." The Court affirms the well established principle that potential liability for third party content falls upon the third party, and not on others on the Internet.

Plaintiffs' allegations in this case—as against all of the defendants other than Gilligan —are very similar to the situation where a person operates a website that displays other people's comments. Defendants are alleged to have republished a defamatory web posting or email originally authored by Gilligan. As multiple courts have accepted, there is no relevant distinction between a user who knowingly allows content to be posted to a website he or she controls and a user who takes affirmative steps to republish another person's content; CDA immunity applies to both. As the Ninth Circuit aptly noted in Batzel v. Smith, "The scope of immunity cannot turn on whether the publisher approaches the selection process as one of inclusion or removal, as the difference is one of method or degree, not substance." Similarly, it does not matter how Defendants republished the alleged defamatory statements—whether by email, website post, or some other method. The point is that all the Defendants in this case—with the exception of Gilligan—acted as re-publishers of another person's information, and as such they are protected by the CDA.

Retweet, repost, forward – it's all the same. According to this Court, you are not a publisher and therefore not liable for third party content. The cause of action as against everyone – but Gilligan the author – gets the boot.

Let's see what today's lesson is: "Wheel of Morality, turn, turn, turn - Tell us what lesson we should learn." [Whirl, Click, Click, Clock]: Skipper's real name was Jonas Grumby! That might explain why they got ship wrecked.


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