⚖ 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. Amazon.com, 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

⚖ Silver v Quora, 10th Cir. Nov. 23, 2016 :: Plaintiff Cause of Action for Defamation Against Quora Dismissed Pursuant to 47 USC 230(c)

FACTS: "Silver is an investment banker, venture capitalist, and author of 33 books on entrepreneurship and finance who resides in New Mexico."

"Quora operates a question-and-answer website at www.quora.com that allows registered users to ask and answer questions on any topic."

"This lawsuit stems from a question on the website that solicited feedback on Silver: “Has anyone worked with or heard of David Silver at Santa Fe Capital?”... Silver claims two false, disparaging posts in response to this question damaged his reputation and caused him to lose potential clients and book publishers: 

• On September 7, 2012, Tessa Salton responded, “Your instincts are correct. He is not licensed or accredited any longer. A fraud.” Id. Her post included a link to an article in The Chicago Tribune, which reports on a $23 million damages award against Silver in an investment case. Id. 
• On October 16, 2013, Neil MacAskill responded, “You are better off buying lottery tickets. One of our checks to him supposedly got lost so we sent him another. Then he cashed both and never did a thing for us. Said he built a business development plan but never delivered it. Save your money.” Id.

"Silver filed this lawsuit, which asserts a state-law claim for libel and defamation and seeks millions of dollars in compensatory and punitive damages"

RULE:  "Section 230 “creates a federal immunity to any state law cause of action that would hold computer service providers liable for information originating with a third party.” Ben Ezra, Weinstein, & Co. v. Am. Online Inc., 206 F.3d 980, 984-85 (10th Cir. 2000). It does so through the interplay of two key provisions. Under § 230(c)(1), “[n]o provider . . . of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1). And under § 230(e)(3), “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” Id. § 230(e)(3)."

ANALYSIS: "[T]he CDA bars Silver’s libel and defamation claims against Quora. ... 'The prototypical service qualifying for this statutory immunity' [is] 'an online messaging board (or bulletin board) on which Internet subscribers post comments and respond to comments posted by others.' Quora fits squarely within this prototype."

Silver v Quora, 10th Cir. Nov. 23, 2016 

See also QUORA GETS EASY SECTION 230 WIN IN TENTH CIRCUIT–SILVER V. QUORA November 28, 2016 · by Eric Goldman Technology & Marketing Law Blog (Goldman has a screen capture of the Quora discussion)

You Cant Tell Your Customers to 'Shut Up' Anymore :: Consumer Review Fairness Act Signed into Law

Bad idea: Set up a business and provide poor goods or services; receive bad reviews online for your poor goods or services.

Worse idea: Instead of treating your customers' feedback as free expert advice and listening to their suggestions on how to improve your business, sue your customers - experience the Streisand Effect - resulting in increased media coverage highlighting your lousy goods, service, and treatment of customers.  Ensure that negatives reviews of your business get the widest exposure possible.

Worser Idea:  Attempt to solve this problem by telling your customers to shut-up. Insert a gag-clause in your terms of service so that it is a breach of contract for your customers to provide negative reviews of your service.

Jennifer Kulas Palmer testified before Congress about her negative experience with online business KlearGear.com.  According to Palmer, in 2008 her husband ordered about $20 worth of Christmas gifts from KlearGear.  When it did not arrive, they attempted to reach out to the company, but to no avail.  Like so many consumers who have had a bad experience, they wrote a negative online review.  Three years later, Palmer heard from KlearGear, claiming that Palmer had violated their Terms of Sale and that Palmer owed KlearGear $3500. Attorneys from Public Citizen represented the Palmers and filed a successful lawsuit against KlearGear. See Chris Morran, “KlearGear.com Ordered To Pay $306K To Couple Who Wrote Negative Review,” Consumerist, June 26, 2014; KlearGear must pay $306,750 to couple that left negative review Lawyer: CYRUS FARIVAR - 6/25/2014 Ars Technica; Jon Brodkin, It will soon be illegal to punish customers who criticize businesses online Ars Technica 11/29/2016.

If there was any doubt that this type of thing is a bad idea, in this year of divided and partisan politics, Congress unanimously voted to end attempts to silence customer reviews. The Consumer Review Fairness Act was signed into law by President Obama on December 14th.

According to the new law, 'form contracts' (those terms of service or standard forms shoved in front of customers to sign without ability to negotiate individual terms) are void if they prohibit customer reviews.  Any such gag provisions are unlawful and are subject to enforcement by the Federal Trade Commission or the states. The Federal Trade Commission will be publishing best practices on how to comply with the Consumer Review Fairness Act.

All of this comes about in the context of the Good Samaritan provisions of the Communications Decency Act, 47 USC 230(c), which says that an online services are not liable for the third party content.  This means that Yelp, TripAdvisor, Amazon, Google, and all the other review sites can encourage people to provide reviews of goods and services - without those online services becoming liable for those reviews. 47 USC 230(c) legally set the foundation for the interactive web where many third parties contribute without the host becoming liable for every utterance.

The Consumer Review Fairness Act establishes that you cannot tell consumers to shut up - it does not, however, protect consumers from liability for what they say.  Businesses can, for example, still seek redress for defamatory reviews. Consumers can review but they may still be held responsible for their words.   

Sen. Thune's Statement During Senate Hearing
"Zero Stars: How Gagging Honest Reviews Harms Consumers and the Economy."

⚖ Pagan v. Google, DNH 2016 :: Defamation Cause of Action Dismissed per 47 USC 230(c)

FACTS: "Pagan's complaint names "Google Corporation" as the defendant and asserts that Google defamed him by publishing false information regarding his criminal record. Specifically, he states that Google published false information labeling him as a convicted sex offender for three counts of rape in New Hampshire. Pagan asserts that the information is incorrect, and he attributes the error to a communication problem in the New Hampshire courts."

RULE: "Google is afforded immunity under the Communications Decency Act of 1996 ("CDA"), 47 U.S.C. § 230, for the publication of defamatory content prepared or posted by others. O'Kroley v. Fastcase, Inc., 831 F.3d 352, 354-55 (6th Cir. 2016). The CDA provides that "[n]o cause of action may be brought" and "no liability may be imposed under any State or local law," 47 U.S.C. § 230(e)(3), for any claim that would treat a provider of an "interactive computer service" as the "publisher or speaker of any information provided" by someone else, 47 U.S.C. § 230(c)(1). See O'Kroley, 831 F.3d at 354-55 (claims against Google for third party content properly dismissed under CDA); Klayman v. Zuckerberg, 753 F.3d 1354, 1357 (D.C. Cir. 2014) (claims against Facebook properly dismissed under CDA)."

CONCLUSION: "[B]ased on the facts alleged in the complaint[, Google is] immune from plaintiff's defamation claims under the CDA, and, accordingly, those defamation claims should be dismissed."

Pagan v. GOOGLE CORPORATION, Dist. Court, D. New Hampshire 2016

When CDA Immunity is not CDA Immunity

Here's a question:  If 47 USC 230(c) (the Good Samaritan provision of the Communications Decency Act) says that online services are not liable for third party content, then can you even sue the online service?  Shouldn't the online service be immune from lawsuit? Because, after all, what would be the point of being sued for something for which you cannot be liable?

This is a question which courts have pondered.  Why does it matter?  With immunity, you can file a Rule 12(c) Motion for Judgment on the Pleading - saying "Judge, there just aint nothing here."  With protection from liability, the litigation proceeds a bit further and you file a Rule 12(b)(6) Motion for Failure to State a Claim - saying "Judge, there just aint nothing here." See the difference? One lets the litigation out of the gates; the other does not.  Both have the same result (potentially).

We visit this question in GENERAL STEEL DOMESTIC SALES, LLC v. Chumley, Court of Appeals, 10th Circuit 2016, where two companies were in the business of prefrabricating steel buildings. 

PLAINTIFF employed Mr. DEFENDANT until 2005, when he left to start his own competing steel building company. The parties have been engaged in numerous legal disputes ever since. 

The underlying dispute involves DEFENDANT Steel's negative online advertising campaign against PLAINTIFF Steel. When internet users searched for "PLAINTIFF Steel," negative advertisements from DEFENDANT Steel would appear on the results page. Clicking on the advertisements would direct users to DEFENDANT Steel's web page entitled, "Industry Related Legal Matters". The IRLM Page contained thirty-seven posts, twenty of which form the basis of General Steel's complaint. To varying degrees, the twenty posts summarize, quote, and reference lawsuits involving PLAINTIFF Steel. Each lawsuit is listed with a title, a brief description of the case, and a link, by which the reader could access the accompanying court document. The majority of the case descriptions contained quotes that were selectively copied and pasted from the underlying legal documents. 

Plaintiff sued. Defendant moved to dismiss under Sec. 230(c), arguing that "the CDA bars not just liability, but also suit."

The district court found that DEFENDANT Steel was entitled to immunity for three posts because those posts simply contained links to content created by third parties. The court refused, however, to extend CDA immunity to the remaining seventeen posts and the internet search ads. The court found that the "defendants created and developed the content of those ads," and were therefore not entitled to immunity. With respect to the remaining seventeen posts, the court found that the defendants developed the content by selectively quoting and summarizing court documents in a deceiving way.  

So, right away, there's a problem.  Sec. 230(c) protects online services from liability for third party content.  But not from liability for their own content. And not so much from liability when the online service has a hand in the creation of that third party content.  As we have seen in cases like Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1164-65 (9th Cir. 2008) (en banc) (holding website operator was not entitled to § 230(c)(1) protection where it made users' answer discriminatory questions a condition of doing business, thereby participating in the "development" of the users' submissions); Fed. Trade Comm'n v. Accusearch Inc., 570 F.3d 1187, 1198 (10th Cir. 2009). ("The Tenth Circuit held that a website could not claim immunity under the CDA if it was "responsible for the development of the specific content that was the source of the alleged liability.")

So there is a bit of a question.  Is this third party content or not? And even if it is third party content, what hand did Defendant have in cultivating that content? These are factual questions upon which liability could turn.

But the court seems to want to nix the "immunity" discussion.  It states, "Whether Section 230 provides immunity from suit or liability such that a denial would permit an interlocutory appeal is an issue of first impression for this court."

Um, no.  Sixteen years ago I am pretty sure the 10th Circuit said, "We hold that America Online ... is immune from suit under § 230." Ben Ezra, Weinstein, & Co., Inc. v. Am. Online Inc., 206 F.3d 980, 986 (10th Cir. 2000).

But much to the chagrin of my fellow professionals who can't understand how lawyers write, tucked down in a footnote the Court states "Our description of the CDA as providing immunity from suit in our case of Ben Ezra, Weinstein, & Co. v. America Online Inc., 206 F.3d 980, 983 (10th Cir. 2000), did not resolve this question, as this issue was not before us in that case."

Um.  Okay.  What are we talking about?  What "issue" was not before the court?  Well, in Ben Ezra, Defendant won on a Motion for Summary Judgment.  That is a pleading on the facts, frequently after discovery has been completed.  This is a motion on the pleadings that the litigation cannot proceed at all.

In other words, what does the word "immune" mean? Does it mean "not liable" because of an affirmative defense?  Or does it mean you cannot even sue the Defendant in the first place?  Same word; two different meanings. 

If the question is whether you cannot even sue the Defendant, that's a pretty high bar, says the Court. The statute in question, Sec. 230(c), must itself contain a statutory or constitutional bar.  We are talking not being able to sue government officials or not being able to sue the federal government (unless it gives you permission).  It's not common.  It's normally protection government grants itself.  And.... as the Court points out.... Defendant is not the government.  The Court concludes, Defendant "has not identified a historical basis for providing private parties immunity from suit under the CDA."

In short, Sec. 230(c) is not a bar to lawsuit.  Sec. 230(c) does, however, provide an affirmative defense to liability for third party content. Defendants still gotta defend.  

America Income Life Ins Co v Google NDAL :: Dismissed Per Sec. 230(c) :: Case Summary

AMERICAN INCOME LIFE INSURANCE COMPANY v. GOOGLE, INC., Dist. Court, ND Alabama 2014

Facts Plaintiffs American Income Life Insurance Company and Scott Sonnenberg (collectively "plaintiffs") filed this action in the Circuit Court of Jefferson County, Bessemer Division, against Google and "X and Y, fictitious parties operating websites Google, Inc., chooses to reward with prominent placement in all its search engine results, known only to Plaintiff[s] as operators of `pissedconsumer.com' and `scam.com.'" Specifically, plaintiffs allege: The Fictitious Defendants' banners and content, broadcast via Defendant Google, Inc.'s search engine throughout Alabama, via hundreds of thousands of computer terminals, violates the Alabama Deceptive Trade Practices Act by falsely asserting that "American Income Life is a Scam."

Cause of Action: The substance of plaintiffs' Complaint is that certain business practices by defendants violate the Alabama Deceptive Trade Practices Act. Defendant moves to dismiss pursuant to 47 U.S.C. § 230(c), The Good Samaritan Provision of the Communications Decency Act.

Rule: "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." 47 U.S.C. § 230(c)(1).

Analysis "Google cannot be held liable for search results that yield content created by a third party."

[T]he only allegations in the Complaint about actions taken by Google in support of the conclusory allegation that Google "intentionally disparaged the goods, services, or business of Plaintiff by false and/or misleading representations of fact" are that Google "offer[s] dozens of product and services, including various forms of advertising and web applications," "determine[s] which [web pages] offer `content of value,'" "assess[es] the importance of every web page," "touts its patented `Page Rank' algorithm," "analyze[s] which sites are the `best sources of information across the web' for its seller-assisted marketing plan," "afford[s] prominent placement in its search engine broadcasting to the Fictitious Defendants," and "broadcast[s]" the "fictitious defendants' banners and content." After careful review of the Complaint, the court finds that plaintiffs clearly allege that Google is an interactive computer service, but not an information content provider because there are no allegations that Google originated, developed, or modified the disputed content. Instead, the face of the Complaint alleges that Google assesses the value of content across the internet and "broadcasts" the content provided by scam.com and pissedconsumer.com via its search engine. Without allegations that Google creates the disputed information, specifically the alleged false and misleading representations, plaintiffs' efforts to treat Google as the publisher of those representations fail under § 230. See [47 U.S.C.] § 230(f)(3).

The Complaint contains no allegation that Google created any content that represented American Income Life as a scam. Although the gripe sites's content was broadcast and/or returned as a result of keyword searches of "American Income Life" on Google's website, the Complaint does not allege that Google created or otherwise developed any content stating that American Income Life is a scam.

What does the SPEECH ACT have to do with Foreign Judgments and Sec. 230?

In a recent federal court decision in California, the defendant Automattic (aka Wordpress) raised the defense of the SPEECH Act, supporting its Sec. 230 defenses.  So what is the SPEECH Act and what does it do?

First, the video tape.  In JOUDE v. WORDPRESS FOUNDATION, Dist. Court, ND California 2014, according to the court, plaintiffs, citizens of France,

learned of a blog at the web address [] ("the Blog"). Id. ¶ 11. Titled "The Hoodwankers," the Blog is about Plaintiffs and other members of the Joude family and published anonymously. Id. ¶¶ 11, 13. From February 27, 2014 to March 8, 2014, an anonymous contributor posted a total of twelve separate entries. See McCoy Declaration, Ex. A, ECF No. 1-4, at 35-43. While some of the entries appear to state plain facts about Plaintiffs' family history, others contain negative remarks. Id.

Plaintiffs contacted defendants and asked that the blog be removed.  Defendants responded "that they 'were in no position to arbitrate content disputes' but would remove any content 'found to be defamatory or illegal by a U.S. court of law' in a formal order from a United States court. Id."  Plaintiffs obtained a French defamation Order and sought to enforce it.  Defendant stated "um, I dont think so," citing the SPEECH Act.  Plaintiff's did not oppose Defendant's Motion for I-Dont-Think-So and the cause of action was dismissed.  With the cause of action dismissed, the court opined that it could not review the applicability of the SPEECH Act.

Okay, but what IS the SPEECH Act?

The CRS provides a nice summary:  Emily C. Barbour, The SPEECH Act: The Federal Response to "Libel Tourism", Congressional Research Service Sept. 16, 2010

The SPEECH Act prohibits domestic courts from recognizing or enforcing foreign judgments for defamation in any one of three circumstances:

• When the party opposing recognition or enforcement claims that the judgment is inconsistent with the First Amendment to the Constitution, until and unless the domestic court determines that the judgment is consistent with the First Amendment,
• When the party opposing recognition or enforcement establishes that the exercise of personal jurisdiction by the foreign court failed to comport with the due process requirements imposed on domestic courts by the U.S. Constitution, or
• When the foreign judgment is against the provider of an interactive computer service and the party opposing recognition or enforcement claims that the judgment is inconsistent with section 230 of the Communications Act of 1934 (47 U.S.C. § 230) regarding protection for private blocking and screening of offensive material, until and unless the domestic court determines that the judgment is consistent with those provisions. 74

  N 74: Some commentators have noted that, in applying section 230 of the Communications Act of 1934 to foreign judgments, the SPEECH Act only extends protection to providers of interactive computer services even though section 230 protects providers and users of interactive computer services. E.g. , Eric Goldman, New Anti-Libel Tourism Act (HR 2765) Extends 47 USC 230 to Foreign Judgments , T ECH. & MARKETING L. BLOG (Aug. 11, 2010, 9:20 AM), http://blog.ericgoldman.org.

Moreover, in any of those three circumstances, a U.S. citizen opposing recognition or enforcement of the foreign judgment may bring an action in a federal district court for a declaratory judgment that the foreign judgment is repugnant to the Constitution. The SPEECH Act also permits any action brought in a state domestic court to be removed to federal court if there is diversity jurisdiction or one party is a U.S. citizen and the other is either a foreign state or citizen of a foreign state.

The SPEECH Act ensures that a party who appeared in a foreign court rendering a foreign judgment to which the act applies is not deprived of the right to oppose recognition or enforcement of that subsequent judgment. If the party opposing recognition or enforcement of the judgment prevails, the act allows the award of reasonable attorney fees under certain conditions.

Finally, the SPEECH Act appears to preempt state laws related to foreign judgments.

Now you know.

NJ Content Liability Law Ruled Inconsistent with Sec. 230 (just like a Washington Law and a Tennessee Law)

Unfortunate problems give rise to unfortunate solutions.

Back in a time before most members of Congress or prosecutors knew that there was an Internet, there was Prodigy. Prodigy, as part of its service, ran family-friendly chat rooms that it moderated in an effort to keep kids protected from unfortunate content. In a different Prodigy chat room, some unknown third party said something apparently bad about an investment firm Stratton-Oakmont. Stratton-Oakmont didn't like that very much, and sued. But not able to reach out and touch the third party, Stratton-Oakmont sued the intermediary Prodigy. The court observed Prodigy taking discretion with what could and could not be posted in the family-friendly chat room, and determined that Prodigy was acting in an editorial capacity, was a publisher, and was therefore responsible for all content published on its service - including the negative third-party comment about Stratton-Oakmont.

Parable of the Good Samaritan

Congress didn't like that very much. Congress had been warned that there was unfortunate content on the Internet. And Congress had been told that Prodigy, as a result of ifs efforts to make the Internet safer, was punished with liability. Congress was also told that it was next to impossible for online services to monitor the massive amounts of content that flowed through its pipes or is hosted on its servers. Therefore, Congress passed the Good Samaritan Provision, 47 U.S.C. § 230 (an amendment to the Communications Decency Act, which was in turn an amendment to the Telecommunications Act of 1996).

The Good Samaritan Provision established two principles: First, interactive online services (broadly defined) are not liable for third party content. Second, interactive services are not liable for actions taken to make the Internet safer. Sec. 230 has been wildly successful, has been described as the greatest Internet law, and as the necessary legal condition to make the interactive Internet possible (of course, back in the real good old day, when the communications network was not liable for the content it carried, this was a tenant of 'common carriage.').

Unfortunately, as Miss Texas Teen USA observed in 1998*, "There's a lot of weirdos on the Internet." The Attorneys' General job is to fight those weirdos and the unfortunate things they do. In order to promote their unfortunate behavior, weirdos place ads on services like Craiglist, Backpage, and other online advertisement services. The Attorneys General want this unfortunate activity stopped, and since they have trouble sometimes reaching out and touching those weirdos, the Attorneys General reach out and touch the intermediary online services. The Attorneys General have tried very hard to change the rules, to change Sec. 230, and to make online services liable for the unfortunate content of third-party weirdos, out of the belief that this will somehow make things better.

The Attorneys General reached out to state legislatures and convinced them that something needed to be done. And therefore several states passed laws that would make online services liable for third-party weirdo advertisements of unfortunate things. These states include Washington, Tennessee, and New Jersey. Online Services didn't like that very much - and sued.

The Attorneys General lost in Washington and they lost in Tennessee. And now the Attorneys General have lost in New Jersey. And they lost big. In Washington, Backpage.com sued and a temporary injunction was immediately granted. Its request for a permanent injunction was granted after a hearing. The state of Washington agreed not to pursue the matter further and agreed to pay Backpage.com's attorneys fees.

Tennessee passed similar legislation. Backpage.com again sued and again received an injunction. The trial court wrote

The Constitution tells us that when freedom of speech hangs in the balance—the state may not use a butcher knife on a problem that requires a scalpel to fix. Nor may a state enforce a law that flatly conflicts with federal law. Yet, this appears to be what the Tennessee legislature has done in passing the law at issue.

Tennessee agreed not to pursue the matter further and the entered into a final judgment invalidating the law.

But we're not done. In early 2013, New Jersey enacted legislation making a crime if

the person knowingly publishes, disseminates, or displays, or causes directly or indirectly, to be published, disseminated, or displayed, any advertisement for a commercial sex act, which is to take place in this State and which includes the depiction of a minor;

This NJ law was modeled after the Washington law. And while the unfortunate content in question makes the heart cry of anyone who reads it, it does not mean that making interactive online services liable for the unfortunate content of third parties is coherent, feasible, effective, or consistent with the First Amendment.

Once again a federal court in Backpage.com v. John Jay Hoffman, Acting Attorney General of the State of New Jersey (D.N.J. Aug. 20, 2013) struck down the law. There are multiple problems with the NJ law.

First, when a state law and a federal law conflict, the federal law preempts the state law pursuant to the Constitution's Supremacy Clause. The state law would make interactive services liable for the content of third parties; the federal law 47 U.S.C. § 230 states that interactive services are not liable for third party content. The Federal law preempts the state law.

But there is a further Sec. 230 problem that the court highlights. Sec. 230 was designed to protect interactive services that seek to make their services safer. The NJ law would have made it a crime to knowingly publish unfortunate content. This creates an unintended and unwanted incentive on the part of interactive services to not know what they are publishing - or in other words, to take no steps toward making their services safe. Again, this is a conflict between the state law and the federal law, and the federal law trumps.

The NJ statute also runs afoul of the First Amendment. According to the First Amendment, to the extent that you actually can be liable for publishing content, you must knowingly publish that content. The statute as written, in addition to knowing publications, would make an online service liable if it, without knowledge, directly or indirectly, causes the content to be published, disseminated, or displayed. As Congress concluded with the passage of Sec. 230, interactive services have little ability to monitor, review, or know all the content that flows over, is hosted on, or is posted to their services. The NJ statute is unconstitutional to the extent that it would make interactive services liable for the posting of content of which they have no knowledge.

Second, the law is not the least restrictive means of achieving a compelling government interest (going after individuals engaged in abuse of children would be more effective and less restrictive, than indirectly going after intermediary communications services). Third, the NJ statute is filled with vague terms and overbroad requirements. Finally, the Court finds that the NJ statute would violate the Commerce Clause.

Unfortunate problems give rise to unfortunate solutions. Too often when confronted with unfortunate problems, those in authority feel that they must do "something," regardless of whether that "something" is such a good idea. Frequently the "something" is a thing that is immediate and visible, and gives a false sense of security. It gives the feeling that the government has acted, where in fact it has not - and it may have even made things worse.

There is no denying that there is darkness out there that needs to be confronted. But as Congress rightly determined almost 20 years ago, attacking communications intermediaries for third party content is not the solution.

Dial "L" for Liability :: Sec. 230 Protects Online Service for Errant Phone Number

Photo by Chris Campbell (cc)

The Communications Decency Act has been described as the greatest Internet law. The first major Internet law designed to censor the Internet actually enabled the interactive Internet. While the censorship provisions of the Communications Decency Act went down in unanimous supreme court flames, a separate provision remains standing. The Good Samaritan provision of the CDA (47 U.S.C. § 230) declared that networks and online services are not publishers and therefore are not liable for the content of third parties. 

This is huge. This means YELP can run a review site, hosting reviews by third parties, and not be liable for the content of those reviews. This means Twitter can operate a revolutionary micro-blog and not be liable for what people tweet. The Communications Decency Act placed online services in the tradition of common carriage, where networks carry content but are not liable for what that content is.

This week’s court decision tests the reach of the protections of 47 U.S.C. § 230. Traditionally, Sec. 230 protects online services that offer interactive sites where third parties come and post content. But what happens when it is the online service itself that posts the third party content. What happens when the ACME corporation operates an online service, acquires and posts some content, and that content potentially gives rise to a legal cause of action? Is ACME liable as a publisher of that content? 

In Nasser v. WHITEPAGES, INC., Dist. Court, WD Virginia 2012, Plaintiff brought suit against Defendant for allegedly incorrectly publishing plaintiff’s phone number as “Comcast Phone of Virginia.” “Plaintiff alleges that, because of these errors, he received thousands of unwanted calls intended for Comcast.” Apparently Plaintiff contacted Defendant, and Defendant promised to remove the incorrect listings. But instead, Defendant’s data was sold to another publisher, and the errant phone number was published again. Defendant had acquired the data from Verizon, a third party. But this is the important twist to this case: while Verizon is reportedly the creator of the content in question, Verizon did not post the content to Defendant’s website – Defendant did. So does that make Defendant liable as a publisher? 

The Court concluded,

While such control over content stretches the boundaries of Section 230 immunity, courts have found that an interactive service provider who solicits, pays for, edits, and generally maintains active control over the content of its website may continue to assert immunity from liability. See Blumenthal v. Drudge, 992 F.Supp. 44, 49-53 (D.D.C. 1998) ( "Congress decided not to treat providers of interactive computer services like other information providers such as newspapers, magazines or television and radio stations, all of which may be held liable for publishing or distributing obscene or defamatory material written or prepared by others."); Zeran v. American Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997) ("lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions-such as deciding whether to publish, withdraw, postpone or alter content-are barred."); See also Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 257-258 (4th Cir. 2009) (plaintiff required to plead facts that the defendant performed something more than its traditional editorial function). Additionally, plaintiff has not alleged that the defendant encouraged inaccurate or defamatory posts, which could remove it from the protection of the Section 230 immunity. See Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 257-258 (4th Cir. 2009).

The Court held that even though it was Defendant who posted the content to its online service, nevertheless 47 U.S.C. § 230 protects Defendant from liability for third party content. Defedant's Motion to Dismiss Plaintiff's claim was granted.

No Virginia, You Have No Duty to Secure Your WiFi Access Point

Every now and again a report flies across the network about the police breaking down someone's door and attempting to arrest the home owner for bad things online - assuming that whatever happened from that person's Internet connection is their fault. Now their are lots of problems with this - lots of problems. But one of the big ones is that anyone can access an open access point; there is no way of knowing who did what at an open access point or ascribing that activity to the owner. And all the police have to do is pull out the WiFi device they probably have in their pocket to determine whether an access point is open or secured.

Stories such as this generally results in a flurry of phobic posts by friends warning each other to lock down their access points. This is not necessarily the right solution. There are lots of legitimate reasons for having an open access points - and the technology was specifically designed to permit open access points. The right solution would be for the legal community to mature in its comprehension that what transpires on an open access point cannot be ascribed to anyone.

A federal court in California recently considered the question of whether the owner of an access point has a duty to secure it. In AF HOLDINGS, LLC v. Doe, NDCA 2012, plaintiff sued John Doe for illegally downloading plaintiff's copyright protected video, and sued Defendant Hatfield for Defendant's negligent failure to secure the access point.

Okay first year law students, what are the elements of negligence? Duty, breach, cause, and damage. Does Defendant have a duty to Plaintiff? 

Plaintiff is arguing that Defendant failed to act - failed to secure his network. A failure to act is called "non-feasance." To have a duty that is breached by inaction, says the court, requires Defendant to have a special relationship to Plaintiff. Or, to say it another way, you are not required to be a Good Samaritan - you are not required to act - unless there is a special relationship. The court states

Plaintiff has not articulated any basis for imposing on Defendant a legal duty to prevent the infringement of Plaintiff's copyrighted works, and the court is aware of none. Defendant is not alleged to have any special relationship with Plaintiff that would give rise to a duty to protect Plaintiff's copyrights, and is also not alleged to have engaged in any misfeasance by which he created a risk of peril.

The allegations in the complaint are general assertions that in failing to take action to "secure" access to his Internet connection, Defendant failed to protect Plaintiffs from harm. Thus, the complaint plainly alleges that Defendant's supposed liability is based on his failure to take particular actions, and not on the taking of any affirmative actions. This allegation of non-feasance cannot support a claim of negligence in the absence of facts showing the existence of a special relationship.

It aint Defendant's job (or anyone else for that matter) to protect Plaintiff's copyrights.

The court further notes that Plaintiff has attempted to recharacterize a copyright claim as a negligence claim. Such attempts to recharacterize copyright claims are preempted by the copyright act. Either someone is liable under the copyright act or not; recharacterizing such a claim as negligence doesnt work.

Finally, Defendant argues that he is immune from liability pursuant to 47 USC 230, the Good Samaritan Provision of the Communications Decency Act, which states that no provider of an interactive computer service shall be liable for the actions of a third party. In this case, Defendant arguably was a provider of Internet service to John Doe - the alleged downloader - and is not liable for whatever John Doe might have done. The court appeared persuaded by this argument, but concluded that since there was no negligence cause of action, and since the negligence cause of action was preempted, it was unnecessary to rule on the question of Sec. 230 immunity.

In short, according to this court:

• No duty to secure a WiFi access point;
• Any claim of breach of such duty resulting in copyright infringement would be preempted by copyright law; and
• Any attempt to impose liability on the WiFi access point owner would likely be defeated by Sec. 230 immunity.

Of course, there are good reasons to secure your WiFi access point. For one thing, it encrypts your communications from your computer to your WiFi access point, protecting against main-in-the-middle attacks or someone intercepting your communications. The Federal Trade Commission's Onguard Online project provides some helpful advice.

Asia Econ Inst v Xcentric :: Sec 230(c) defense successful (again)

Asia Economic Institute v. Ventures LLC, et al. Case No. CV 10-01360 SVW (PJWx). United States District Court, C.D. California. May 4, 2011.

Background: Plaintiff filed multiple claims against defendant dba RipOffReport based on unfavorable reports written by third parties on Defendants website. See sample Asia Economic Institute reviews on RipOffReport.

Procedure: Defendant's Motion for Summary Judgment based on Communication Decency Act's Good Samaritan Provision, 47 USC 230(c) Immunity

Issue: 47 USC 230(c) provides immunity for online services where the online service is not the author of the content. Specifically, Sec 230(c) provides that "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." 47 U.S.C. § 230(c)(1). Further, "No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." 47 U.S.C. § 230(e)(3).

Def, who runs a website hosting third party reviews, has repeated been found to be a provider of interactive computer services, and immune from liability.

The reviews in question were written by third parties without involvement of the defendant. Minor style guide recommendations, insertion of tags and codes does not alter def as not the publisher of the content. The insertion of tags serves to promote online visibility of content and does not alter defendants status (citing Roomates.com in accord).

"In determining which of Plaintiffs' claims should be barred by the CDA, the CDA should be given the expansive reading that Congress intended. See 47 U.S.C. § 230(e)(3) ("No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.")."

Holding: Def Motion for Summary Judgment Granted; Case Dismissed pursuant to 47 USC 230(c)

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

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.

[Disclaimer]

Virtual Banishment and the First Amendment: Estavillo v. Sony Computer Entertainment of America

I saw this case in the excellent National Association of Attorneys General publication Cyber Crime e-newsletter .

Many of us host or sponsor online communities of one form or another. On occasion, this means we must engage in moderation of the discourse in that community, and, as chance may arise, on occasion, we must give some chap the boot from the community for violating the AUP or the TOS. Inevitable, the booted chap screams “First Amendment Violation,” to which we must respond, “The First Amendment restrains government actors – we are not government actors.”

Apparently, we are correct.

In the case Estavillo v. Sony Computer Entertainment of America, No. C-09-03007 (NDCA Sept. 22, 2009), Plaintiff claimed that Defendant violated Plaintiff’s First Amendment rights when Defendant excused Plaintiff from the Sony Playstation 3 Network (a gaming social network). Defendant filed a Motion to Dismiss for Failure to State a Cause of Action. Defendant is not a government and not, therefore, retrained by the First Amendment. Simple case, right?

But if remember back to 2^nd year law school (I do my best not to), there were in fact times when non-government actors might be retrained by the First Amendment. The big case in this space involved “company towns.” These are instances where a company - a mining company for instance - owns all the land, all the buildings, all the stores, and essentially has taken on all day-to-day life functions of a municipality. See Marsh v. Alabama, 326 U.S. 501 (1945). In that case the Supremes held that the company could not arrest a fellow for walking down the company town’s public side walk and handing out religious literature, even though it was against company regulations.

The Court in today’s case rejects the notion that Defendant might be considered a company town.

Sony's Network is not similar to a company town. The Network does not serve a substantial portion of a municipality's functions, but rather serves solely as a forum for people to interact subject to specific contractual terms. Every regulation Sony applies in the Network is confined in scope only to those entertainment services that Sony provides. Although the Network does include "virtual spaces" such as virtual "homes" and a virtual "mall" that are used by a substantial number of users (Pl.'s Reply in Supp. of Opp'n. to Dismiss 1), these "spaces" serve solely to enrich the entertainment services on Sony's private network. In providing this electronic space that users can voluntarily choose to entertain themselves with, Sony is merely providing a robust commercial product, and is not "performing the full spectrum of municipal powers and [standing] in the shoes of the State." Hudgens, 424 U.S. at 519 (quoting Lloyd Corp. v. Tanner, 407 U.S. 551, 568-69 (1972)).

Defendant’s service is an entertainment service. Defendant does not provide roads or sidewalks. Defendant is not coming to put out any fires or arresting any jay walkers. Defendant does not plow the roads when it snows (of course, recently, failure to plow a road during a snow storm by no means disqualifies you from being a municipality).

Amazingly, not everyone is convinced. Prof. Jack Balkin writes (as Rob Heverly summarizes)

Rather, those where the space is created "to form communities or create channels for general public communication" could be subject to the First Amendment's requirements.

Really! Wow, that’s a bad idea. There are lots of communities created all the time. Churches. Youth clubs. Sports clubs. Communities for playing games. In the offline world, the question is quite clear that creating a space to form a community does not turn one into a government; indeed this activity is recognized under the Freedom of Association. And the Freedom of Association includes the freedom not to associate, to say, for example, “I don’t like your speech and I don’t want to associate with you.” It is at the core of the distinction between a restraint on government action and a restraint on private action. Private actors are allow to not-associate based on speech issues; government actors, not so much.

Online communities, much like offline communities, form as tribes around common interests. In order to maintain and pursue the objectives of that community of interest, moderators impose TOS and AUP. Some communities are successful; some are not. The makings of a good community frequently involves the hand of a moderator who can guide discourse without deterioration to Godwin’s Law (as an online discussion becomes protracted and entrenched, it becomes ever more likely that someone implement the rhetoric skill of comparing their opponent to Nazis or Hitler). (See another good article on Speech in Virtual Worlds by Eric Goldman)

This is in praise to good moderators and good discourse. “A single conversation across the table with a wise person is worth a month's study of books” - Chinese Proverb

No wait, this was about that case. The Court dismissed it for failure to state a cause of action; Sony, host of an online community, aint a government actor.

PS: You can learn about Cybertelecom's discussion group here.

[Disclaimer]

Caselaw Construing 47 USC 230 Immunity is Surprisingly Scant

At least according to one Arizona Superior Court: Children of America v. Magedson, CV 2007-003720 (AR Superior Court Oct. 31, 2007).

The court's order itself is "surprisingly scant," thus we know little of the facts surrounding this case. What we do know is that once again it involves Ripoffreport.com. Jinkees! The Sec. 230 caselaw for this one defendant is surprisingly robust. Ripoffreport.com must have some well paid attorney on retainer that does little more than mash the print button for the proforma Sec. 230 Motion to Dismiss form... merely taking a bit of time to scrawl in the name of the latest plaintiff.

Of course, if the court's law clerks are too busy researching water rights cases, we are glad to refer them to our "surprisingly scant" list of Sec. 230 cases.

Anyway, we here at Cybertelecom are likewise into automation and have developed our proforma blog post for these Ripoffreport.com cases. Here it is:

Some plaintiff [FILL IN BLANK] got irked by what some disgruntled third party wrote about them at Ripoffreport.com. Ripoffreport.com "is a worldwide consumer reporting Web site and publication, by consumers, for consumers, to file and document complaints about companies or individuals." Ripoffreport.com did not write the disgruntled comment. Ripoffreport.com filed a Rule 12(b)(6) Motion to Dismiss pursuant to 47 USC § 230. The Court granted the motion and dismissed the complaint as against defendant Ripoffreport.com.

Of course it never goes proforma, does it.

Plaintiff apparently alleged that Ripoffreport.com either edited or authored the headline of the disgruntled comment - and that headline could be actionable. The court has to take the facts as alleged by plaintiff as true for a motion to dismiss (the court is merely deciding whether there is a potential claim for which relief can be granted -- it is not deciding the merits of the case as to whether in fact relief should be granted - it's like if I sued you in court for being short - while this may be true, it is not a cause of action for which relief can be granted). Therefore the court dismisses the complaint against Ripoffreport for the disgruntled third party comment, but denies the motion to dismiss with regard to the headline. But the Court made clear, if plaintiff cant prove that Ripoffreport authored the disgruntled headline, then plaintiff will face pretty much the same outcome as the rest of the complaint.

So what's cool about all this. I go looking at Ripoffreport.com for a bit of deep research in preparation for this post, and I find a page entitled Want to Sue Ripoff Report? The page states:

If you are considering suing Ripoff Report because of a report which you claim is defamatory, you should be aware that to date, Ripoff Report has never lost such a case. This is because of a federal law called the Communications Decency Act or "CDA", 47 U.S.C. § 230. Because this important law is not well known, we want to take a moment to explain the law, and to also explain that the filing of frivolous lawsuits can have serious consequences for those who file them, both parties and their attorneys. The CDA is part of our federal laws.An excellent Wikipedia article discussing the history of the law can be found here. In short, the CDA provides that when a user writes and posts material on a website such as Ripoff Report, the site itself cannot, in most cases, be held legally responsible for the posted material.

Do the plaintiff's in these cases get to file RipoffReport.com disgruntled comments about their attorneys who advised them to file these pointless complaints?

The Right to Whine :: Global Royalties, Inc., v Xcentric Ventures, LLC, (DAR October 10, 2007)

The Good Samaritan provisions of Sec. 230 the Communications Decency Act hold water over the water – where water means overseas international judgments – and where overseas in this case means the dirt road leading north guarded by Canadian Mounties. Between a Canadian judgment for defamation which involved third party content, and the safeguards of Sec. 230 of the Communications Decency Act, the Good Samaritan wins the smack-down.

So here’s the dirt. This week’s spat is Global Royalties, Inc., v Xcentric Ventures, LLC, No. 07-956-PHX-FJM (DAR October 10, 2007). Defendant Xcentric Ventures runs a whine-website called Ripoff Report. A disgruntled third party visited defendant’s website and expressed disgruntledness in three separate posts. Plaintiff Global Royalties took offense in the disgruntledness and ended up suing defendant and disgruntled party in Canadian court. Defendant never showed up. The court issued an injunction requiring defendant to remove all of disgruntled party’s posts from its website, prohibiting defendant from posting any further comments about plaintiff, and pushed the dispute to trial court for talk about damages.

Plaintiff brought the judgment South-of-the-Border down to Arizona seeking enforcement, and also called defamation on defendant. The court said, wait a minute, we don’t just enforce Canadian-hockey playing court orders as a matter of course. And as to “defamation,” the comments in question were written by a third party and not defendant, and therefore pursuant to the Good Samaritan clause of the CDA, the defendant is not liable. 47 USC § 230.

Wait a minute, argued plaintiff, defendant never took down the comments as ordered by Dudley Do Right, and therefore plaintiff has “adopted” the disgruntled statements.

Sorry, responded the court, but it is well established that notice to a website owner of some problem with someone whining does not morph the whining into the website’s own speech. This aint the DMCA.

Which led the judge to do a little whining of his own: With no risk or liability for third party content, a website owner has no incentive to take down that content where it flusters some plaintiff. “If it was an unintended consequence of the CDA to render plaintiffs helpless against website operators who refuse to remove allegedly defamatory content, the remedy lies with Congress through amendment to the CDA.”

Poor poor helpless plaintiffs (that hire attorneys who haven’t read Sec. 230 case-law).

One of the truly great innovations of the Internet and specifically Web 2.0 is the interactive features that permits disgruntled third party’s to visit review web sites and whine about the failings of their least favorite companies. You can find out how horrible your plumber is, how horrible your teacher is, or how horrible Bruce Willis’ latest movie is (and if you believe every review or comment you read on the Internet, I have a nice investment in Nigeria to recommend to you). International treaties and fear of the Dudley Do-Right cannot thwart this. It’s good to know that your right to whine holds water over the water (even where the water is a frozen hockey pond).

[Disclaimer]