Category Archives: Communications Decency Act Immunity

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

Ninth Circuit Decision Diminishes the Protections Afforded by the Communications Decency Act

Communications Decency Act Immunity:  A critical decision was made last summer by the United States Court of Appeals for the Ninth Circuit, which could have significant impact on how user-content based websites are structured.  In Fair Housing Council of San Fernando Valley , et. al., v. Roommate.com, LLC, the Court held that the owner of roommate.com could not avail itself of the protections afforded by the Communications Decency Act with regard to an alleged violation of the Fair Housing Act and various other state laws.  Indeed, this was the critical issue of this case.

Generally, websites such as roommate.com, where the content is provided by website users rather than the website producer itself, try to avail themselves of the protections of the Communications Decency Act.  This law provides certain immunities to Internet Service Providers (i.e. AOL), but has been interpreted broadly.  Many courts have found that if a website provides a forum for others’ speech that the website itself should not be liable for the individuals’ speech.
In the instant case, the website generally provided a forum for website visitors to post requests for potential roommates.  The avenue for the requests was not simply an open forum where the website visitors authored their own text.  Rather, in addition to an open comments field, the site provided drop down windows for its users to complete.  Specifically, the Court noted that “[t]o become members of Roommate[.com], users respond to a series of online questionnaires by choosing from answers in drop-down and select-a-box menus.  Users must disclose information about themselves and their roommate preferences based on characteristics such as age, sex and whether children will live in the household.  They can then provide “Additional Comments through an open-ended essay prompt.”  The argument raised by the Fair Housing Council was that by providing these drop-down menu options, roommate.com essentially participated in the users’ speech.  Accordingly, if the user engaged in discriminatory speech (i.e. posting an intent to only consider applicants based on their gender, race, familial status, sexual orientation or other discriminatory criteria), the website itself “helped” the user do so by providing the drop-down menus.  The Court held that the website therefore essentially was part of the efforts of its users to discriminate in their housing choices.
The Court decided that by providing those drop-down windows, the speech was not just that of the individual-users.  Rather the website itself assisted in the discriminatory application language.  The Court stated that “Roommate[.com] is immune so long as it merely publishes information provided by its members. . . However, Roommate[.com] is not immune for publishing materials as to which it is an ‘information content provider.’ A content provider is ‘any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet.’”
Accordingly, the Court held that with regard to the content within the drop-down windows questionnaire Roommate.com, could not avail itself of the immunity provided by the Communications Decency Act.  However, Roommate.com was protected under that statute with regard to speech contained in the “additional comments,” section of the website:  “Roomate[.com]’s open-ended question suggests no particular information that is to be provided by members; Roomate[.com] certainly does not prompt, encourage or solicit any of the inflammatory information provided by some of its members.”
We therefore recommend the following:
·  First, and foremost, be sure that you structure your website in a manner that allows website users to provide their own content in an open-forum.  Ensure that you are not providing any of the content for them.  In other words, ensure that you do not make the same mistake that roommates.com did: do not have drop down windows or other “choices” for the users to elect from in order to create their content.
·      You should also closely monitor your website for users’ wrongful conduct, including posting discriminatory or defamatory content.  You should endeavor to keep such vulnerable content off of your website. 

Comments/Questions: ljm@gdnlaw.com