The "Ripoff Report" consumer complaint Web site is well known to those who follow rulings involving the application of Section 230 of the Communications Decency Act, including some who self-identity as "Section 230 junkies." Xcentric Ventures, the operator of the Ripoff Report, and its founder Ed Magedson have been serial defendants in defamation cases brought by various parties who sought to establish that the site was liable for defamatory statements made by posters to the site. Xcentric and Magedson have prevailed in almost all of those cases, even in situations where the plaintiffs sought to establish that the Magedson and Xcentric employees either wrote or substantially edited some of the alleged defamatory postings and thus were not entitled to CDA Section 230 immunity. And the Ripoff Report boasts about those successes on the Web site.
Now a defamation plaintiff, instead of bringing an action against Magedson or Xcentric with respect to a Ripoff Report post, has filed a John Doe lawsuit and is seeking discovery of the identity of the authors of the anonymous posts via a third-party subpoena to Xcentric.
In Ecommerce Innovations, L.L.C. v. Does 1-10, No. MC-08-93 (D. Ariz. Feb. 10, 2009) a judge that previously issued an order compelling compliance with the third-party subpoena to Xcentric has refused to reconsider that ruling, finding that the plaintiff had made out a prima facie case of defamation against the anonymous posters and thus was entitled to the identifying information from Xcentric. The court cited e.g., Best Western International v. Doe, 2006 WL 1091695 (D. Ariz. July 25, 2006) and Mobilisa, Inc. v. Doe, 170 P.3d 712 (Ariz. Ct. App. 2007). However, the court also concluded that there were "serious questions" concerning the standard to be applied in discovering the identities of anonymous Internet posters, and whether the evidence in the case meets that standard. Consequently, the court stayed its order compelling compliance in order to allow Xcentric to appeal to the Ninth Circuit.
It will be interesting to see if the Ninth Circuit chooses to take the appeal, and whether, if it does, Judge Kozinski is on the panel. That’s a bit of a long shot, considering the number of judges in the Ninth Circuit. But it would certainly heighten interest in the case, at least for followers of CDA Section 230 jurisprudence. Judge Kozinski authored the panel opinion (now superseded by the en banc ruling) in Fair Housing Council v. Roommate.com. Judge Kozinski’s panel opinion posed a scenario in which allegations of egregious conduct on the part of a service provider might not fall within the protection of CDA Section 230 immunity. Some have speculated that Judge Kozinski’s hypothetical referred to the Ripoff Report site, although the court in yet another Ripoff Report-favorable CDA Section 230 ruling rejected the comparison. See Whitney Information Network, Inc. v. Xcentric Ventures, (M.D. Fla. Feb. 15, 2008).
But of course the more important fact is that if the appeal is filed and then allowed, the Ninth Circuit will have the opportunity to rule on the standard to be applied in cases involving discovery request directed at obtaining the identity of anonymous posters.
Update: The appeal was dismissed by stipulation of the parties in September 2009. The stipulation includes the following statement:
7. Ecommerce Innovations no longer wishes to compel compliance with
the subpoena or to demand the identity of the anonymous publisher from Xcentric
Ventures, LLC, and the parties have settled the action on terms that include a
dismissal of the underlying miscellaneous proceeding.
8. The parties have agreed that dismissal of the underlying proceedings
renders this appeal moot.
Accordingly, the parties agree to dismiss the instant appeal.
DATED: September 14, 2009 BUCHALTER NEMER
A Professional Corporation