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The Blockowicz plaintiffs were the object of posts accusing them of a variety of heinous acts. The posts were made by a former family member on a number of sites, including Facebook and MySpace and a second complaint site in addition to the Ripoff Report site operated by Xcentric. They brought suit and obtained a default judgment, including a permanent injunction requiring the defendants to remove the posts, which  the defendants failed to do. The injunction also included a provision allowing the plaintiffs' counsel to contact Web site hosts, "who shall make reasonable efforts to ensure the false statements are removed." While the other hosts removed the postings, Xcentric refused to do so, and in response to a motion for enforcement of the judgment, argued that the court lacked authority under Fed. R. Civ. P. 65 to compel them to comply.

The district court agreed with Xcentric, citing CDA Section 230 only in passing. Noting that the case was one of first impression, the court addressed the requirement in Fed. R. Civ. P. 65(d) that enforcement of an injunction against a non-party requires a showing that the non-party was "acting in concert or legally identified (i.e., acting in the capacity of an agent, employee, officer, etc.) with the enjoined party." The court rejected the argument of the Blockowicz plaintiffs that Xcentric was in "active concert or participation" with the defendants because they entered into an agreement with the defendants when they posted on the Ripoff Report site. The plaintiffs pointed to the statement in the site's Terms of Service that posted material will not be removed, even upon the request of the poster, and that the Xcentric was granted an irrevocable, perpetual, fully-paid, worldwide exclusive license to the posted material, and argued that these provisions "are essentially a promise to aid and abet the Defendants in continuing defamation regardless of any court orders."

The court focused instead on the language in the terms of service requiring users to post "truthful and accurate statements." According to the court, the record in the case "is devoid of any evidence that Xcentric intends to protect defamers and aid them in circumventing court orders." Although that is the result of the court's ruling, as the court itself recognized:

The court is sympathetic to the Blockowiczs’ plight; they find themselves the subject of defamatory attacks on the internet yet seemingly have no recourse to have those statements removed from the public view. Nevertheless, Congress has narrowly defined the boundaries for courts to enjoin third parties, and the court does not find that Xcentric falls within those limited conscriptions based on the facts presented here.

It should be noted that the Ripoff Report sites bills itself as being "by consumers, for consumers," and its founder, Ed Magedson, describes himself as a "consumer advocate." Although Xcentric will not remove allegedly defamatory material, it will, for a fee, provide remedial assistance to companies that are the subject of defamatory reports through its "Corporate Advocacy Program." The site and its program have been challenged, unsuccessfuly so far, on the theory that they constitute an extortion scheme. The particular posts involved in this case did not involve a consumer transaction, however, but resulted from a dispute amongst former family members, as described more fully in this post on the Ars Technica site.

In addition to the Arts Technica post, Prof. Eric Goldman has commented on the case and  expressed concern at the result, as has Ben Sheffner of the Copyrights and Campaigns blog.

Although the court noted that the issue is one of first impression, a similar case, also involving a post on the Ripoff Report site, was concerned with Xcentric's refusal to remove user posted content. In Global Royalties, Ltd. v. Xcentric Ventures, 2008 WL 565102 (D. Ariz. Feb. 28, 2008) a district court held that even though the original author of a "report" on Xcentric's site asked for it to be removed and Xcentric refused, Xcentric was not liable for allegedly defamatory statements in the report, citing CDA Section 230.

 

The federal district court in Massachusetts dismissed the employee's claim that the employer was liable for defamation for distributing an e-mail to 1,500 other employees detailing the reasons for the employee's dismissal. The district court held that the statements in the e-mail were true, and that in any event no evidence of "actual malice" had been shown by the employee.

On appeal, the First Circuit first upheld the dismissal but then reversed itself, concluding that under Section 92, even a true statement can be the basis for a libel claim in a private plaintiff case, if the plaintiff shows "actual malice." Now, "actual malice" is a term of art in defamation law, a term that refers to the publication of an untrue statement about a public figure, with knowledge, or a reason to know, of its falsity. But the First Circuit concluded that the term "actual malice" in Section 92 refers to "common law" actual malice, i.e., "actual malevolent intent or ill will" on the part of the speaker. The court drew that conclusion based on the fact that the statute in its present form was enacted in 1902, before the U.S. Supreme Court had developed the current definition of "actual malice" as applied to public figures.

Thus construing the term "actual malice," the appeals court examined the record in the case and concluded that the discharged employee had sufficiently alleged facts on which a jury could base a conclusion that the employer acted with "actual malevolent intent or ill will" toward the employee when the e-mail detailing his discharge was distributed, i.e., that he had been "singled out … in order to humiliate him" and to harm his reputation.

The ruling contained virtually no discussion of the constitutionality of the Section 92 because the appeals court deemed the issue to have been waived:

This exception to the truth defense is not constitutional when applied to matters of public concern. Shaari v. Harvard Student Agencies, Inc., 691 N.E.2d 925, 927 (Mass. 1998). In the rehearing proceedings, Staples has suggested that this exception to the truth defense may never be constitutional. But this argument is not developed now and was not raised in the initial briefing. Accordingly, we do not consider it at this time. See Johnson v. Mahoney, 424 F.3d 83, 96 (1st Cir. 2005).

The employee's defamation claim was remanded for trial.

The response to the appeals court opinion included the filing of a petition for rehearing, and the submission of an amicus brief to which numerous newspapers, media companies and advocacy organizations signed on, from the Associated Press to the Washington Post. On March 19, however, the First Circuit denied the petition for rehearing, reiterating its conclusion that the issue of constitutionality was not properly raised, and that in any event there was no showing that the statute was so obviously unconstitutional that the court should have acted sua sponte to strike it down. The court commented that the employer "still does not cite a case for the proposition that the First Amendment does not permit liability for true statements concerning matters of private concern."

The panelists testifying before the Subcommittee commented on the provisions of H.R. 6146, which passed the House Judiciary Committee late last year but failed to get to a floor vote before the end of the 110^th Congress. Presumably Rep. Steve Cohen (D. Tn.) who sponsored H.R. 6146 and chairs the Subcommittee, is preparing to introduce the same or similar legislation in the current 110^th Congress, although no bill has yet been filed.

The first panelist was Rachel Ehrenfeld, whose experiences with libel litigation in the U.K. prompted the introduction of H.R. 6146 and the enactment of the Libel Terrorism Protection Act by the New York Legislature last year, as detailed more fully in my post on the PBS MediaShift blog. Her statement to the Subcommittee detailed the lawsuit brought against her in the U.K. for publication of a book in the U.S. alleging that a Saudi businessman financially supported terrorism. The U.K. court based jurisdiction in the case on the sale there of 23 copies of the book via the Internet, and the availability of a chapter of the book on a Web site accessible in England.

What would the enactment of H.R. 6146 have accomplished? The bill would have provided a defensive remedy against the enforcement of foreign libel judgments. The provisions of the bill are quite simple, providing that notwithstanding other provisions of state or federal law, "a domestic court [i.e., either federal or state] shall not recognize or enforce a foreign judgment for defamation that is based upon a publication concerning a public figure or a matter of public concern unless the domestic court determines that the foreign judgment is consistent with the first amendment to the Constitution of the United States." In other words, a plaintiff that obtained a libel judgment in a foreign court would be unable to enforce that judgment in U.S. courts unless there was a finding that the judgment met U.S. first amendment standards.

That sounds like a lot, and it is, but according to one panelist, Prof. Linda J. Silberman of New York University Law School, the principle set out in the legislation already reflects U.S. law, citing, e.g., Sarl Louis Feraud International v. Viewfinder, Inc., 489 F.3d 474 (2d Cir. 2007) (expressing the principle that a foreign judgment that does not conform to U.S. first amendment standards is unenforceable on grounds of public policy). She did comment favorably on the provisions of H.R. 6146, however, to the extent that enactment of those provisions would establish a clear federal policy on non-enforcement of judgments that violated the first amendment, as opposed to the more general "public policy" grounds under existing law.

The subject that yielded divided opinions on the part of the panelists concerned the extent to which legislation addressing libel tourism should be limited to the type of defensive provisions contained in H.R. 6146, or whether an affirmative remedy should be provided. In Ehrenfeld's case, her attempt to preemptively obtain a judgment declaring the U.K. libel judgment unenforceable failed when courts ruled that there was no jurisdiction over the foreign libel plaintiff under New York law.

The specific provisions discussed were those contained in two companion bills in the 110^th Congress, H.R. 5814 (Rep. King) and S. 2777 (Sen. Specter and Sen. Lieberman), which would have provided for long-arm jurisdiction and a federal cause of action including both injunctive relief and damages against a foreign plaintiff that filed a defamation action in a foreign court with respect to speech disseminated in the U.S. that did not constitute defamation under U.S. law. Prof. Silberman commented that she is "highly critical" of those proposals, which she characterized as failing to "extreme and ultimately unsustainable remedies" that would be "much too aggressive an assertion of U.S. jurisdiction even in those situations where U.S. interests might be found to be compelling."

Another panelist, Laura R. Handman, detailed the range of libel actions brought in overseas courts and the chilling effects they have had on U.S. publishers, Handman argued for amending any proposal based on H.R. 6146 to include a declaratory judgment provision including an award of fees and costs.  Handman also pointed out that the irony that it is American celebrities who are "some of the most frequent libel tourists," detailing actions brought by Harrison Ford, Britney Spears, Cameron Diaz and Marc Anthony and Jennifer Lopez, among others. Panelist Bruce D. Brown similarly argued for expanding the provisions of H.R. 6146 to incorporate affirmative remedies against libel tourists.

The hearing adjourned without further discussion of a bill introduction, so though it appears likely that some legislation will be introduced, the shape it will take remains uncertain.