Deceased Blogger’s Post Continues to Haunt Defamation Plaintiff

Communications Decency Act Immunity: Cherie Davis, an Illinois resident, recently filed suit against Google, Inc., in connection with Google’s operation of blogspot.com, its blog hosting service. The complaint raised some unique and interesting facts.

As set forth in the complaint, Ms. Davis indicated that a blogspot.com customer, Sean Healy, had posted a statement about her on his blog. That statement indicated that Ms. Davis had referred to members of the United States Speedskating Federation as fascists. Ms. Davis alleged that Mr. Healy’s blog publication was defamatory in that it (a) was false since she never made such a statement; and (b) impugned her reputation by implying that she is “someone who made false and inflammatory statements about others without substantiation.” Ms. Davis indicated that such an implication is also false and without merit.

On the surface, this would appear to be a run-of-the-mill Internet defamation case. The unique aspect is that Mr. Healy has passed away. Yet, his blog remains active and the allegedly defamatory statement remains public. Ms. Davis asserted that because Mr. Healy passed away without an estate to probate, she had no one to whom she could direct her request that the statement be removed. Accordingly, without a blog owner to turn to, she sued Google.

The lawsuit, filed April 9, 2009, seeks injunctive relief. In other words, Ms. Davis has requested that the Illinois Court enjoin Google from continuing to post Mr. Healy’s “defamatory” statement.

Google would generally be able to avail itself of the immunities afforded by the Communications Decency Act. However, it will be interesting to see if the Court decides this differently on the basis of public policy. If Ms. Davis truly had no other means of having defamatory content removed, then an argument could be made that Google should step in and remove the problematic content.

Further, Google’s argument, according to the complaint, that “it could not control the content of its customers’ blogs” must fail. First, its own terms and conditions contradict this. Though the company states that it need not edit or remove content, it nevertheless reserves the right to do so: “Google reserves the right at all times to remove or refuse to distribute any content on the Service, such as content which violates the terms of this Agreement.” Arguably, the terms and conditions do not prohibit the posting of defamatory content, and therefore Google may argue that the posting at issue does not violate the terms of the agreement. That being said, the fact that they can remove content if it does weakens any argument that they technically have no way of controlling the content.

Moreover, Google’s obligations under the Digital Millennium Copyright Act likewise belie this argument. Under the DMCA, an Internet service provider, such as Google, is entitled to limited immunity from copyright infringement of third party posters so long as certain protocols are adhered to. Google obviously tries to avail itself of these protections and appears to have undertaken efforts to comply with those protocols – the terms and conditions even link to DMCA-specific terms. Notably, the DMCA states that an ISP may lose its immunity if it continues to host content that infringes another’s copyright once the ISP obtains knowledge of the same. The end result of this is that ISPs often remove such content upon receiving notice of infringement by a bona fide copyright owner. In fact, Google’s own terms and conditions anticipate this: “our response to these notices may include removing or disabling access to material claimed to be the subject of infringing activity and/or terminating subscribers.” Again, therefore, it goes without saying that Google must have the capability to control its bloggers’ content.

All that said, the Court nevertheless will be likely be reticent to impose a restriction on the Communications Decency Act. The trend we have been seeing is instead a willingness of the courts to increase the reach of the immunities afforded by the Act. Accordingly, we would anticipate that the Court would not reach such a decision unless it truly believes that (a) the plaintiff was defamed; (b) is being damaged by the continued posting of the statement; and (c) that she has no other recourse to have the content removed. In all likelihood, the Court will demand a showing that the Mr. Healy’s assets have not been transferred to any person or entity, whether by his own will or otherwise. Given that Mr. Healy is survived by his mother, according to the complaint, it seems unlikely that his rights in and to the blog were not inherited by someone.

Comments/Questions: ljm@gdnlaw.com

© 2009 Nissenbaum Law Group, LLC