Judge comes down for Facebook in defamation action
We’ve previously written about Section 230 of the Communications Decency Act (CDA), a statute which immunizes an “interactive” content provider or other computer service from most liability for content posted to the site by third parties. To the gazillions of people whose feelings have been hurt by something that got posted about them somewhere on the Internet, Congress said in effect: “If you can find the people who actually wrote the stuff that upset you, feel free to sue them. But don’t bother to sue the host services which those people used to get their words out onto the Internet.”
Where’s the fun in that? After all, it’s darn near impossible to pull back the dark and heavy curtain of Internet anonymity and ID any particular poster. And even if you happened to find the right person, odds are that he/she doesn’t have any money. By contrast, many Internet hosts – large, recognizable, deep-pocketed household names like AOL, or MySpace, or Craigslist – are (a) easy to find and (b) seemingly flush with cash.
No wonder a significant number of people still try to shoot the messenger, regardless of what Congress said.
Gradually a body of Section 230 case law has developed affirming the immunity from liability website hosts enjoy, except in certain limited situations. (Courts have allowed cases to go forward against web hosts only when there’s evidence that the website operator, or one of its employees, was – directly or through inducement – involved in posting the offending content that allegedly violated the plaintiff’s rights or reputation.)
But that hasn’t stopped the armies of enterprising plaintiff’s attorneys – you know, the folks who “only get paid if you do”. Sure enough, we continue to see efforts to end run around Section 230 to get to the deep pockets of the web hosts.
We have already discussed one such “legal” maneuver. The New Jersey Attorney General’s office announced that it was investigating whether it could sue the gossip site “Juicycampus.com” for fraud because the site didn’t comply with its own Terms of Service by removing offensive content. (Juicycampus.com went out of business before any official action was taken, thus mooting the inquiry.)
In view of the quantity and quality of postings to Facebook every day, there were probably even odds that an innovative attorney with a willing plaintiff would try to get a piece of the reported $15 billion of that company’s net worth.
Enter Denise E. Finkel, high school student. She alleged that four classmates created a Facebook group in January, 2007, to which they posted “defamatory statements with negative sexual and medical connotations”. She filed a lawsuit against these classmates, several others, and Facebook in New York.
Of course, Facebook immediately moved to dismiss. (At this point, a defendant in Facebook’s situation should be able to win with a one line motion that simply says “Section 230 – Deal with it.”)
In response, Finkel didn’t dispute that Facebook is an “interactive computer service” covered by Section 230. Instead, she claimed that Facebook took itself outside the protections of Section 230 because, in its Terms of Service, Facebook claims ownership in all content posted to the site.
Because this is a rather common provision in a website’s Terms of Service – and one we often include in Terms we draft for our own clients – we are now big fans of Judge Debra A. James, who decided that “Plaintiff’s argument is meritless.”
Judge James cited one of the earliest cases interpreting Section 230, Zeran v. America Online, for the proposition that the law “precludes courts from entertaining claims that would place a computer service in a publisher’s role”. As she saw it, “ownership of content plays no role in the Act’s statutory scheme”. Since Facebook had no hand in creating the defamatory content, it simply couldn’t be sued.
As a side note, the court also dismissed Facebook’s own motion for sanctions to be imposed against Frankel and her attorney for bringing a frivolous argument. So it appears that Judge James was impressed, but not moved, by the lawyering in this case. That might embolden other attorneys with nothing to lose to continue to push the limits of Section 230.