Wednesday, December 21, 2016

⚖ Host of Facebook Group Immune from Liability for Third Party Content - But Would Host Be Liable if "Perpetuated" Content?!?

FACTS: "As is by now commonplace, Facebook groups are the soapbox for community organizers. In the present action, Plaintiff [pro se] alleges that one such group—the "Volusia County Moms" ("VCM")—mounted a public relations campaign to oust him from Port Orange. Specifically, on or about January 7, 2014, Plaintiff Howard Porter moved in with his uncle and father due to financial hardship. " On January 17, 2014, an anonymous post appeared on the VCM Facebook page stating that a registered sex offender had recently taken up residence across the street from Sugar Mill Elementary School... The ensuing Facebook discussion included comments addressing Plaintiff's criminal past. In particular, Defendant Nicole Sanchez commented that:
[Plaintiff] gave up some rights when he decided he wanted to do sexual acts on a [four] year old!! And thank God this was a set up and he got busted.[] Who knows what the pictures of his own son looked like or who he sold them too [sic]!!! Convicted sexual predators should not be allowed to be so close to a school with all these innocent children!!"
"As a result of the alleged 'false' statements made in the Sanchez Response and the attendant media coverage" Plaintiff sued for defamation. " In his defamation claims, Plaintiff singles out ... Jacqueline Bodner, the owner of the VCM office and Nicole Sanchez, the author of the Sanchez Response.

Defendant " Bodner seeks dismissal of the Complaint on the ground that she is immune from suit under the Communications Decency Act, 47 U.S.C § 230 "

RULE: "[T]he CDA grants immunity to a "provider or user of an interactive computer service" for "any information provided by another information content provider"—that is, information posted by someone else. See 47 U.S.C. § 230(c)"

ANALYSIS: "[B]ecause Sanchez, not Bodner, posted the Sanchez Response, the Court finds that the policy behind the CDA warrants blanketing Bodner with immunity under the CDA at least as to Plaintiff's defamation claim. See Almeida v., Inc., 456 F.3d 1316, 1321 (11th Cir. 2006) (interpreting the CDA as having established "broad federal immunity"); see also Regions Bank v. Kaplan, No. 8:12-cv-1837-T-17MAP, 2013 WL 1193831, at *18 (M.D. Fla. Mar. 22, 2013) (stating that "[a] `provider' of an interactive computer service includes websites that host third-party generated content")."

CONCLUSION: Defendant Bodner Motion to Dismiss Granted

NOTE: Plaintiff attempts to defeat the § 230 immunity by arguing that "Bodner is not a passive host; instead she is a content provider due to her 'collaboration' with Defendants to further the Sanchez Response." The Court entertains this argument sufficiently to respond to and dispose of it. The Court states, "nothing in the Complaint can be read to ensnare Bodner in a scheme to perpetuate the Sanchez Response."

M'kay. This begs a big question. If Defendant Bodner did something to "perpetuate the Sanchez Response," would this abrogate the § 230 immunity? Fair Housing Council (9th Cir. 2008) establishes that, at the far end of the spectrum, where a defendant requires third parties to fill out fields on a form with answers that violate housing law, defendant has moved from host enjoying § 230 immunity to participant developing third parties' content. In this case, the Court recounts no authority for Plaintiff's argument nor does the Court cite authority when it disposes of said argument.

It makes one uneasy. "Perpetuating third party content" does not abrogate § 230 immunity. There is no caselaw that would support that. Sure, the Court is here giving a short answer to dispose of an argument. But the frontier of § 230 immunity is furiously contested. The frontier is identified as that land where defendant can be seen not just guiding a third-parties' hand, but forcing that hand into making statements as a condition for speaking. Playing the role of host, selecting content, promoting content, and dare say, "perpetuating" content, has not in and of itself given rise to liability.

Porter v. City of Port Orange, Dist. Court, MD Florida 2016
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