| The following are the facts as I understand them. I will paraphrase them and I will assume the facts & allegations – as reported thus far – are true for the purposes of the legal issue raised in this discussion. In fact, I do not care which allegations are true, to what extent they are true or what the bigger context is. The issue to me is liability and the status of the law. Therefore bear with me and let's assume for now that everything you read in the papers (**cough, cough**) is true. (If Mr. Dunn's attorney or the Plaintiff's attorney wishes to email me with supplemental information or comment here at GMD, they are welcome to do so. I'm sure we'd all love to learn more about this). Here goes: 1. Plaintiff Effie Mayhew is suing David Dunn, and iBrattleboro owners Chris Grotke and Lise LePage for damages caused by what the Plaintiff claims is libel committed/pubished at iBrattleboro. Mr. Dunn and the owners of iBrattleboro allegedly committed the libel according to the Plaintiff. 2. Dunn posted a comment at iBrattleboro claiming the Plaintiff was flagrante delicto with a co-worker to whom she maintained no state licensed carnal privileges (i.e. they were not married). FN1 3. The Plaintiff says she was not fishing (being fished?) off the company pier. She further states that Dunn’s claims, that she defiled the sanctity of anyone's marriage, are false; and she claims damages in her complaint. FN2 4. iBrattleboro is a website/blog/forum for citizen journalists. It publishes news. iBrattleboro also provides a forum for people to submit comments. 5. Most people agree that iBrattleboro is cool, however, that is subjective. 6. Comments to iBrattleboro are third party generated content by registered users. iBrattleboro and its owners do not edit, modify or promote the content supplied by users within the comments sections. 7. Chris Grotke and Lise LePage neither edited, modified or otherwise contributed to or directed the writing of Mr. Dunn's statement about the Plaintiff. 8. I do not know what iBrattleboro's “Notice and Take-down Procedure” is. Typically notice and take-down procedures allows persons who see their copyrighted material, libel, trademarks etc. used improperly to contact a website's owners. 9. Upon notice of the potentially libelous nature of Mr. Dunn’s comment, iBrattleboro took the “offending” comment down. (It is not clear to me how iBrattleboro’s owners became aware or when they became aware of the offending comment). Finally- fyi - under Vermont law, libel is tort recognized where there is "(1) a false and defamatory statement concerning another person; (2) negligence, or greater fault, in publishing the statement; (3) publication to at least one third person; (4) lack of privilege in the publication; (5) special damages, unless actionable per se; and (6) some actual harm so as to warrant compensatory damages." Just for fun, let's also assume and I will state in my personal opinion, that Mr. Dunn's comment was libelous. I will therefore refer to Mr. Dunn's comment as libel. The point being, regardless of whether Mr. Dunn's comment is libelous, that does NOT impact on whether the owners of iBrattleboro have any liability to the Plaintiff. Here is the issue. Information content providers are liable for the information they generate. I am responsible for what I publish at GMD or what I personally write in the comments at any particular blog, for instance. If readers comments below, those readers and I shall be "information content providers." We will all be responsible for what we individually publish, and we are all answerable to anyone who happens to get the vapors from what we write. The key is that by writing this, I am a "content originator." I am therefore the liability magnet for anything I say, as it should be. I am not, however, responsible -- nor is GMD -- for any of the comments any reader affixes to this post. The Communications Decency Act, in addition to its unconstitutional parts regarding "decency," states 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." The way courts read the CDA and apply its immunity generally works like this. (a) Immunity from liability applies to a defendant (e.g. iBrattleboro) who is (b) the provider of an interactive computer service if (c) that defendant is being sued based on the comments or information provided by someone else (e.g. a commenter on the website). Many cases have already decided this issue and I suspect the Windham Co. Superior Court will be well served by a motion to dismiss the lawsuit against the owners of iBrattleboro. I don't have time to collect all the cases tonight. If you are interested in legal resources on this issue, I suggest starting at http://onlineliabilityblog.com/significant-47-usc-230-decisions/ and looking that the CDA decisions at this really informative website. I suspect the first person to read all the 47 U.S.C § 230 cases linked on that site will be well prepared to argue the iBrattleboro motion to dismiss in Windham Co. Here is a further taste of how courts looks at this issue. The Third Circuit Court of Appeals recently ruled on a case named DiMeo v. Max, which involved a website that took comments. One of the comments was allegedly "disparaging." The disparaged Plaintiff sued the owners of the website for the comment posted by the third party. The Court made extremely quick work of the appeal: Max's website is an interactive computer service because it enables computer access by multiple users to a computer server. See 47 U.S.C. § 230(f)(2) (defining “interactive computer service” as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions”). DiMeo’s complaint alleges that Max is a publisher of the comments on the website. However, DiMeo does not allege that Max authored the comments on the website or that he is an information content provider. See 47 U.S.C. § 230 (f)(3) (defining “information content provider” as “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 interactive computer service”). As such, the website posts alleged in the complaint must constitute information furnished by third party information content providers. Therefore, the requirements of § 230 immunity are satisfied. In Green, we affirmed the dismissal of a complaint against America Online based on § 230 immunity from tort liability stemming from messages posted in chat rooms by unnamed defendants impersonating the plaintiff. 318 F.3d at 469-70. Similarly, we will affirm the dismissal of the complaint against Max based on § 230 immunity from tort liability resulting from messages by third party message posters.
-cl Disclaimer: This post is not legal advice. If you want to call someone a asshole on your personal blog or in comments here at GMD, get your own attorney. ------------------------------ Footnotes: FN 1: Having lived in three jurisdictions where it was against the law for consenting adults to screw without a state license, I consider this to be a material fact. I acknowledge that Vermont law does not prohibit (consistent with local noise ordinances) the practice. FN 2: If what the Plaintiff alleges in her lawsuit is true, regardless of liability, she has been seriously wronged by Mr. Dunn's conduct. That, however, is a fact issue for the jury to decide. The particular legal issue concerning the liability of iBrattleboro's owners is already clear. |
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