Category Archives: Internet

The intriguing legal ramifications of Pokémon GO

Recently, there has been a virtual tsunami of articles about the so-called hidden dangers of using the Pokémon GO app. The vast majority of them concern potential violations of the privacy rights of both consumers and landmark-owners. The media’s Chicken Little-like take on this is that augmented reality apps are opening the door to a dystopian future.

However, what has not been widely discussed is the impact of all this on the developers of augmented reality apps. That deserves some space as well.

I am the managing attorney of the Nissenbaum Law Group, LLC, a boutique commercial law firm located in NY, NJ, PA and TX with a focus in intellectual property. Our firm handles a fair amount of work involving apps. This includes everything from licensing agreements and movie and book deals to lawsuits over infringement of our clients’ intellectual property. We have reviewed the Pokémon GO controversy from the developers’ perspective and have come to the conclusion that it raises some very intriguing legal issues. Here are a few.

  1. What sort of access is really necessary in order to utilize the app? Many commentators have complained that signing into Pokemon GO provides “full access” to users’ Google accounts, i.e. gmail, maps, contacts, calendar, etc. See Slate.com’s excellent article on this concern. But does the app need to require a user to give total access to their Google account or is that simply an unnecessary overreach?

    If not, why stir up the hornet’s nest of privacy concerns when you can simply dial back the access without impairing the app’s functionality? The developer may not have complete control over how the app is downloaded, but that is precisely the point. Indeed, implementing such legal protections might give the developer a marketing edge to sell a more privacy-friendly product when others are not, e.g. end-to-end encryption. On the other hand, many developers have taken the position that no change is necessary since the heightened access level is fully disclosed and consented to by the app users in the terms and conditions and privacy policy. Either way, the developer should enter this legal thicket with eyes open. There is a downside of having the “benefit” of free access to user data.

  2. The web has been rife with articles concerning Poké Stops and Pokémon Gyms located at properties owned by people who have no idea that they have been selected. Notable examples of this have come from such wide-ranging landmarks as the Holocaust Museum andArlington National Cemetery. Setting aside the concern that it can be irritating to suddenly have 50 people show up at a national landmark because it has now become part of a video game, there are serious questions about whether this is also an invasion of privacy.

    State laws differ, but generally, invasion of privacy breaks down into three basic categories. As set forth in the Restatement of the Law, Second, Torts, § 652, they are:

    • Intrusion Upon Seclusion – One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.
    • Appropriation of Name or Likeness – One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.
    • Publicity Given to Private Life – One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that
      (a) would be highly offensive to a reasonable person, and
      (b) is not of legitimate concern to the public.

    It is obvious that any one or all of these could apply to the legal issues raised by augmented reality technology.

    So how can the developer be protected? A good start would be a waiver of liability. It is critical that the terms and conditions for the app waive liability not just for the company distributing it, but the developer, as well. Another important consideration is whether the developer can obtain a suitable insurance policy that would cover these sorts of claims. There is no way of being completely protected, but such measures at least can offer a partial shield to potential liability.

  3. Where does copyright law come into all this? Let’s consider the following hypothetical: the XYZ Candy Company is known throughout the country as being the best place to buy high-end candy and related items in bulk. It has a tremendous Internet presence and has franchised stores all along the eastern seaboard. Its unique building design—which is in the shape of one of its candies—has been copyrighted (Yes, under the right circumstances, a building design can be the subject of a copyright).

    But now, the XYZ Candy Company building also has become a Pokémon Gym. Players from miles around aggregate to that location because the name and logo are depicted in the app as a Pokémon Gym location. At what point does this mean the app is using the copyrighted design in violation of the copyright registration?

    The concern is not just that a developer would lose a lawsuit like that, but that they would be sued at all. Even a successful defense against such a challenge would create all sorts of negative consequences for the developer, e.g. litigation cost; backlash from the fan base; strain on the relationship with the app distributor; etc. If the potential for a copyright suit relating to building design is significant, the developer should consider negotiating license agreements / location releases with the copyright owner to specifically authorize the app’s use of it.

  4. Another legal risk for the developer that should be mitigated by appropriate waivers of liability and indemnification clauses is a slip and fall claim. Believe it or not, there are already proposed laws that would prevent people from walking in public locations while utilizing their cell phone. These laws would penalize pedestrians who use the sidewalk while distracted: something which would only be exacerbated by using a cell phone with an augmented reality location app. (And while we are on the subject, how about liability for using the app while driving?)

    This raises the obvious question of who would be indemnifying the developer in this scenario. Perhaps the user. They could, on the one hand, hold the developer harmless from the user’s own claim for damages caused by the user’s negligence and, on the other hand, indemnify the developer for any claims by others (third parties) for damage that also arose from the user’s conduct. While not foolproof, the best way to try to obtain this protection would be to include it within appropriate terms and conditions for use of the app.

  5. An integral way that augmented reality apps can be monetized is for the property owners to pay (perhaps on a per visitor basis) to be listed as a sponsored location. This can be complemented by such businesses using their status as an augmented reality location to provide discounted services to participants. All of this raises the question of how the developer can maximize the value of the brand and the monetization opportunities. Proper intellectual property registrations and a strong licensing and enforcement regime would be critical to doing so.

    Let’s take the example of a restaurant that advertises itself as a “Poké Stop” and utilizes a game image in connection with the stylized “Poké Stop” mark in its store window. That is arguably an instance of both copyright and trademark infringement. To best enforce those rights, however, it would be important for the game developer to have federally (if not internationally) registered those intellectual property rights.

    But why is it important to inhibit this type of use? Doesn’t it help promote the game? Perhaps, but, on the other hand, once a restaurant can associate itself with the game and the developer for free, the opportunity to sell that right to another restaurant diminishes greatly. Why would Restaurant A pay to be a sponsored location, if Restaurant B is doing it without paying? The value of the license—the amount that Restaurant A might pay the developer for that opportunity—is greatly enhanced by properly policing the intellectual property and not allowing third party infringers to use those rights without permission.

    Moreover, even if the developer is not seeking to make money from these opportunities, it still behooves it to have a license in place. Having a proper license can help the developer maintain brand integrity and quality control.

    As to brand control, for example, if the game is sold and targeted as being family-friendly, it will be important to ensure that the reality-based locations that are associating themselves with the game and its intellectual property, are appropriate venues, rather than liquor stores, places of adult entertainment and so forth.

    Quality control is also critical. A license can help maintain this and ensure that a location using the brand indicia of the game does not inadvertently tarnish it. In other words, if there is a restaurant that has health code violations, terrible reviews and other such challenges, the developer may very well not want to have its game associated with it. A proper license can help to provide an exit strategy and afford the developer enhanced rights.

Augmented reality apps are a quintessential example of disruptive technology. Their impact will extend beyond the digital world and affect other segments of society that may not currently even be aware of their existence. In the past, the law has done a very uneven job of keeping up with the pace of change created by such disruptive technologies… I could provide more examples, but I just saw a Mewtwo run into my law library. Gotta catch ‘em all…

May a Website That Provides a Link to an Article be Liable for Defamation Based on the Article’s Content?

Can you hyperlink yourself into a lawsuit? Do you need to fact check every article you reference in an Internet posting?

In In re Philadelphia Newspapers v. Vahan H. Gureghian. 11-3257, 2012 WL 3038578 (3d Cir. July 26, 2012), the Philadelphia Inquirer (“Defendant”) wrote an online column about the Plaintiff that included links to a website. The website contained alleged defamatory material about the Plaintiff. Defendant did not author the alleged defamatory material, which was published more than a year ago. Plaintiff sued Defendant for defamation because Defendant provided those links within his column.

In an attempt to avoid tolling the 1-year statute of limitations (“Statute of Limitations”) that applies to defamation claims, Plaintiff argued that the links amounted to republication. The reason is that republication of a defamatory statement can begin a new Statute of Limitations. As a result, a violation of the original Statute of Limitations would not have barred Plaintiff from filing suit against the Defendant. 

In its analysis, the Court considered two important legal doctrines: the “single publication rule” and the “doctrine of republication.”  

Single Publication Rule

For a plaintiff to succeed in a defamation suit, the defendant must have published the defamatory material. Under the “single publication rule” a defendant is considered to have published the material only if he or she is the original publisher. The “single publication rule” enables only the original printing of the defamatory material – and not the circulation of the material –  to trigger the Statute of Limitations. Otherwise, the Statute of Limitations would start over every time one re-circulated defamatory material.  This could result in an effectively meaningless Statute of Limitations because it would potentially never end.

Doctrine of Republication

The “single publication rule” is limited by the “doctrine of republication.” The “doctrine of republication” states that “republishing” material will restart the Statute of Limitations. This raises the important question: when does a “republishing” occur? The Court analyzed this issue as follows:

An exception to the single publication rule is the doctrine of republication. Republishing material (for example, the second edition of a book), editing and reissuing material, or placing it in a new form that includes the allegedly defamatory material, resets the statute of limitations. Restatement (Second) of Torts § 577(A); Davis v. Mitan (In re Davis), 347 B.R. 607, 611 (W.D. Ky. 2006). Traditional principles of republication thus require the retransmission of the allegedly defamatory material itself for the doctrine to apply. However, courts addressing the doctrine in the context of Internet publications generally distinguish between linking, adding unrelated content, or making technical changes to an already published website (which they hold is not republication), and adding substantive material related to the allegedly defamatory material to an already published website (which they hold is republication). See Davis, 347 B.R. at 611-12.

Additionally, the Court cited Salyer v. Southern Poverty Law Center Inc., which held that a link is not a republication under similar facts. Salyer v. Southern Poverty Law Center Inc., 701 F.Supp.2d 912 (W.D.Ky.2009).  In Salyer, the defendant provided links to defamatory material and referenced that material several times in articles posted on its website. The Salyer court explained that, although a link calls attention to defamatory material, it does not present the defamatory material. A link is simply a means for accessing the referenced article, it is not a republication. Therefore the Salyer court held that the posting of links did not amount to republication.

In accordance with the Salyer precedent, the Philadelphia Newspapers Court held that links do not amount to republication. Therefore Plaintiff was barred by the Statute of Limitations from proceeding against the Defendant for defamation. The Court expressed the concern that, if it were to hold otherwise, the Statute of Limitations could be triggered endlessly because websites are constantly linked and updated. Allowing each link or technical change to restart the Statute of Limitations would effectively eliminate the Statute of Limitations.

The take away from this analysis is that under certain limited circumstances, linking or referencing defamatory material that you did not write may be grounds to restart the Statute of Limitations. While there are facts in which that will not be the case, it is wise to avoid linking to web pages contain defamatory statements, regardless of how long ago the statement was made.

Comments/Questions: gdn@gdnlaw.com
© 2013 Nissenbaum Law Group, LLC

When Is Substantial Truth an Adequate Defense to Defamation?

In a 1964 decision, the Supreme Court established that truth is an absolute defense against defamation. New York Times Co. v. Sullivan, 376 U.S. 254 (1964). However, for parties involved in defamation suits, it is similarly important to know about the affirmative defense of substantial truth.

In a recent case, a Texas Court of Appeals found in favor of defendants who had posted a critical review of the plaintiff’s product online. David Rafes, Inc. v. Huml, 2009 Tex. App. (1st Dist. Oct. 29, 2009). In the suit, David Rafes alleged that Michael Huml and Slowboy Racing, Inc. published defamatory statements about Rafes’ business, Turbochargers.com. The allegedly defamatory statements included Huml claiming that Rafe’s turbocharger was a “poorly manufactured turbo from China” that would “inevitably fail in a short amount of time” and that it was a “Chinese version us[ing] an inferior stainless in its composition.” Id. at 2. Among several defenses asserted by the defendants was that their statements were substantially true.

In order to bring a cause of action for defamation, a plaintiff must establish that the defendant:

  1. published a statement about the plaintiff
  2. that was defamatory
  3. while acting with either actual intent or reckless disregard, i.e. malice (if the plaintiff was a public  official or public figure) or negligence (if the plaintiff was a private individual) regarding the truth of the statement

Id. at 13.

Generally, a defendant can defeat a libel claim by establishing that the published statement on which the action for libel is based is a true statement. Additionally, a defendant can defeat a libel claim by establishing that the statement at issue is substantially true. The Court explained that in order “[t]o determine if a publication is substantially true, we consider

  1. whether the alleged defamatory statement was more damaging to plaintiff’s reputation, in the mind of the average person,
  2. than a truthful statement would have been, and
  3. [w]e look at the ‘gist’ of the publication to determine whether it is substantially true.”

Id. at 14.

The substantial truth standard has also been referred to as the “gist” test because, under this approach, only the “gist” of the statement in question must be true in order for the statement to be protected. As the Court explained, “[t]he defense of truth does not require proof that the alleged defamatory statement is literally true in every detail; substantial truth is sufficient.” Id. This doctrine protects certain false statements so long as any inaccuracies do not materially alter the dissemination of otherwise truthful speech.

The Huml Court decided in favor of the defendants, finding that the trial court had heard sufficient evidence to conclude that the plaintiff’s turbocharger was, as it concluded, a “bad product” and that the evidence “substantiat[ed] the ‘gist’ of the statements contained in the internet article regarding the production and manufacturing of the turbocharger.” Id.

The substantial truth defense is significant in that it provides defendants with a less stringent – and potentially less expensive – way to combat a libel suit. If a defendant can show that the statement at issue is substantially true, it will hopefully be possible under the right circumstances for the defendant to have a motion for summary judgment granted (which will allow the case to be disposed of without going to trial). The doctrine is also important for libel plaintiffs because it notifies them that statements that criticize them need not be entirely true in order to be protected.

Comments/Questions: gdn@gdnlaw.com

© 2011 Nissenbaum Law Group, LLC

What is the current legal status of Europe’s “right to be forgotten” doctrine as it relates to Internet Defamation?

A Spanish court recently asked Internet-search provider Google to remove data about a private individual from its index.  Spain and other members of the European Union made this request under a doctrine that is commonly referred to in Europe as “the right to be forgotten.”

In 1991, a Spanish newspaper published a critical profile of Spanish plastic surgeon, Dr. Hugo Guidotti Russo.  The article referenced a dispute Dr. Russo had with a patient, but failed to mention how meritorious the claims were or how the dispute was ultimately resolved.  According to Dr. Russo’s attorney, the lawsuit was dropped once Dr. Russo was cleared, but no media covered that aspect of the case so it never appeared on the Internet.  Dr. Russo is still a practicing plastic surgeon in Spain and when potential patients use Google to search for him, the critical article regularly appears on page one of the search results.  Dr. Russo believed that the article was harming his ability to attract patients and, with the support of a Spanish court and the Spanish Data Protection Authority (“SDPA”), asked Google to remove the article from its index.

Google refused to remove the article claiming that the Spanish regulators exceeded their authority and that their directive was equivalent to censorship.  The important issue raised was how much control private individuals should have over the information about them that appears on the Internet.  Currently, there is a groundswell of support in Europe for the “right to be forgotten” movement such that it may be codified as law.  The SDPA has previously ruled that freedom-of-expression laws in Spain protect only newspapers and other publications and do not protect search engines.

Other examples of private individuals seeking to “be forgotten” in Spain include:

A high school principal whose citation for urinating in public was published by an official regional government gazette and may still be seen by students and parents alike via a Google search.

A prison guard concerned that a job-related sanction that appeared in Google search results might lead criminals to determine where he works.  Spanish police and prison guards are often granted anonymity due to fears that they might be identified, located, and targeted by the armed Basque separatist group ETA.

An individual accused of homicide forty years prior but acquitted due to mental illness.  A Google search performed forty years later reveals news of the accusation, but no news of his acquittal or the mental illness that justified the acquittal.

Google’s response is that Spain should require the publications that make the material available via the Internet to embed coding that would tell search engines not to index the information.  Privacy experts agree that requiring Google to remove information from its index could have a profound chilling effect on free expression.  Advocates of the “right to be forgotten” rules counter that users of the Internet should have a right to be forgotten when the data is no longer needed or when an affected individual requests that the data be removed.  The legislation being considered by the European Union would focus mainly on data, photos and, videos that individuals post of themselves on sites such as Facebook and Twitter, that the individuals may later want removed.

Comments/Questions: gdn@gdnlaw.com

© 2011 Nissenbaum Law Group, LLC

May statements made in the course of an ongoing fraud investigation be defamatory?

On April 7, 2011, the First Department of New York’s Appellate Division upheld a trial court’s dismissal of a lawsuit for defamation.  Akpinar v. Moran, 2011 WL 1311902 (1st Dept. 2011).  The plaintiff, Reverend Dr. Bill Akpinar, sued attorney William Moran; Moran’s law firm; and the firm’s client, Wachovia Mortgage, FSB (“Wachovia”) for defamation.  Akpinar alleged that Moran defamed him in a newspaper article about a pending criminal investigation into a mortgage fraud and a lawsuit brought against Akpinar by Wachovia alleging mortgage fraud.

When referring to Akpinar, Moran told the newspaper, “I’m looking forward to getting him under oath” and “I want to get to the bottom of many questions myself.”  Id.  Akpinar argued that when considered in the context under which the statements were made, they amounted to defamation.  Akpinar claimed “that he lost $17 million in venture funding from unspecified individuals who read the [defamatory] statements.”  Id.

The Appellate Division dismissed Akpinar’s complaint, holding that “a reasonable reader would understand the statements defendant made about plaintiff as mere allegations to be investigated rather than as facts.”  Id.  (Emphasis in original).  The court reasoned that “the statements neither impute to him the commission of a serious crime nor tend to injure him in his trade, occupation or profession, and therefore do not constitute slander per se.”  Id.  Neither Akpinar’s reference to the pending criminal investigation nor the civil lawsuit were sufficient to establish a claim for “defamation by innuendo” – whether the statements are defamatory requires a balancing between the alleged defamatory words and the facts and circumstances that surround their publication.

The court also found Akpinar’s allegation that he lost “$17 million in venture funding from unspecified individuals” inadequate to plead special damages as required in a defamation action.  Id.  Finally, the court noted that Moran’s statements were protected under Civil Rights Law §74 as a “fair and true report of a judicial proceeding.”  Id.  The court similarly dismissed Akpinar’s claim for intentional infliction of emotional distress as duplicative of his defamation claim and on the ground that Moran’s statements were “not so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency.”  Id.  Thus, the court upheld the decision of the trial court dismissing Akpinar’s lawsuit in its entirety.

Comments/Questions: gdn@gdnlaw.com

© 2011 Nissenbaum Law Group, LLC

Does a person have to show that his reputation was harmed to bring a lawsuit for per se online libel or slander?

The NJ Supreme Court is currently considering an appeal that may determine once and for all whether a person can proceed with an online per se libel suit even though there is no evidence that his reputation has been actually harmed.

In W.J.A. v. D.A., 416 N.J. Super. 380 (App. Div. 2010), the nephew created a website in which he posted allegations that his uncle had molested him years ago. The uncle then sued his nephew for defamation.

Defamation is when the defendant communicates to another person a false statement about the plaintiff that harms the plaintiff’s reputation in the eyes of the community or causes others to avoid him. There are two types of defamation, libel which is when the false statement is written or printed and slander which is when the false statement is spoken.

New Jersey law provides that someone suing for defamation must show actual damages. However, there is an exception to that requirement in which damages will be presumed. It is called “per se” slander or libel. The usual examples are set out in the standard New Jersey jury charges:

  • The statement charges someone with the commission of a crime. 
  • The statement accuses someone of having an offensive or loathsome disease that would tend to deprive the person of companionship. 
  • The statement concerns matters that are incompatible with business, trade, profession or office.
  • The statement charges serious sexual misconduct.

In this case, the Appellate Division of the Superior Court of New Jersey determined that per se defamation is not limited to the spoken word (slander), but also applies to the written word (libel). The Court reasoned that:

“[F]or purposes of summary judgment, no one disputed that the defamatory statements attributed to defendant were defamatory. Thus, dismissal of the action at that stage-merely because plaintiff presented no proof of actual damage – provides defendant with a license to defame. If there has been a wrong, there should be a remedy, and the time-honored approach of allowing such a case to be decided by a jury, which may then assess a proper amount of damages based upon their experience and common sense, does not offend us.”

W.J.A. v. D.A., 416 N.J. Super. At 606-607 (App. Div. 2010)

The opinion is also notable because it clarifies that a defamatory Internet posting is libel, not slander.

This case is now on appeal to the NJ Supreme Court, which should issue its ruling sometime this term.

Download W.J.A. v D.A., 416 N.J. Super. 380 (App. Div. 2010)

Comments/Questions: gdn@gdnlaw.com

© 2011 Nissenbaum Law Group, LLC

Internet Advertisement on a Passive Website is Not Generally a Basis for Personal Jurisdiction in a Lawsuit

On August 16, 2010, the Federal District Court of the District of New Jersey upheld the prevailing view of personal jurisdiction as it relates to internet advertisements.  The Court in Morilla v. Laser Spine Institute, LLC, 2010 WL 3258312 (D.N.J.) stated that “[a] website that has only information and a generic contact information input form falls at the passive end of the Zippo scale.  Id. at 5.  The Court held defendant’s website to be passive and declined to exercise jurisdiction over defendant.  In the analysis of the operation of the defendant’s website, The Court stated:

“In the past fifteen years, the increasing popularity of the internet has led courts to examine a defendant’s internet activity as a potential basis for jurisdiction, but the Supreme Court has not yet spoken on this subject.   Zippo Manufacturing Company v. Zippo Dot Com, 952 F.Supp. 1119 (W.D.Pa.1997), a seminal case endorsed by the Third Circuit, considered whether a defendant’s operation of a website could satisfy a federal court’s exercise of personal jurisdiction over that defendant.  The Zippo court created a “sliding scale”, whereby the quality of contacts between a web host and a forum is evaluated by examining the website’s nature and functions.  At one end of the scale are those web hosts who actively solicit business over the internet by using their websites to enter contracts or exchange data files.  If they engage in such activity knowing that their would-be customers are in another forum, jurisdiction over the web hosts in that forum is proper.  On the other end of the scale are passive hosts with purely informational websites that allow no interaction through the site-these websites do not themselves create sufficient contacts between the web host and other forums to justify an extra-territorial court’s exercise of jurisdiction.  In the middle are websites that allow the visitor to ex-change information with the host, but do not affirmatively seek business from other states. For such sites, jurisdiction must be determined on a case-by-case basis by looking at just how “interactive” and commercial in nature the exchange of information through the website is.”

“When a website is passive or falls in the middle of the Zippo sliding scale, plaintiffs may have to prove “something more” to justify the exercise of personal jurisdiction-that is, plaintiffs must show that the defendant purposefully (albeit electronically) directed his activity in a substantial way to the forum state.  The “something more” can include evidence of non-internet contacts, such as ongoing communications with customers in the state, business trips to the state, advertisements in local publications, and business records of sales in the state.”

Id. at 5.

The Court granted defendant’s motion to dismiss plaintiffs’ complaint because the plaintiffs failed to allege sufficient facts to show that defendant’s website was interactive.  Thus, the Court refused to exercise personal jurisdiction over defendant.  


Comments/Questions: ljm@gdnlaw.com

© 2009 Nissenbaum Law Group, LLC

An Internet Service Provider is Generally Protected from Liability for Defamation by the Federal Communications Decency Act

On September 2, 2010, the Supreme Court of New York, New York County decided a case in which it determined a defamation claim regarding negative remarks about the plaintiff’s dental practice posted by a third-party on defendant’s web page.  The court in Reit v. YELP!, Inc., et al. –N.Y.S.2d—, 2010 WL 3490167 (N.Y.Sup.), held that the Federal Communication Decency Act of 1996 (“CDA”) protected Yelp from liability for defamation.  The Court analyzed plaintiff’s defamation claim pursuant to the CDA and stated:   

Section 230 of the CDA provides that “[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,” (CDA § 230[c][1] ), and that “[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] ).  “Interactive computer service” is defined as “any information service, system or access software provider that provides or enables computer access by multiple users to a computer server …” (CDA § 230[f][2] ).  An “information 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 or any other information computer service” (CDA § 230[f][3] ).

Id. at 1.

Through the CDA, Congress granted interactive computer services immunity from liability for publishing false or defamatory material so long as the information was provided by another party.  Similarly, 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.  However, an internet computer service is liable for its own speech, or when it develops information.

Id. at 2.

The Court held that the plaintiff’s defamation claim was barred by the CDA because defendant was an interactive computer service as defined under the CDA and was not considered an internet content provider.  The allegedly defamatory content was supplied by a third party information content provider and consisted of a message board posting.  Id.  Thus, the Court granted defendant’s motion to dismiss plaintiff’s complaint.       


Comments/Questions: ljm@gdnlaw.com

© 2009 Nissenbaum Law Group, LLC