We have previously described as "robust," the protection afforded interactive service providers from liability for defamatory contents posted by third parties by Section 230 of the Communications Decency Act. But in Blockowitz v. Williams, 1:09-cv-03955 (N.D. Ill. Dec. 21, 2009), involving post-judgment efforts to have defamatory postings removed from a consumer complaint Web site , the protection comes, not from CDA Section 230, but from Fed. R. Civ. P. 65, which governs the enforcement of injunctions.
Perhaps predictably, for followers of CDA Section 230 jurisprudence, the consumer complaint Web site involved is the Ripoff Report, operated by perennial defendant Xcentric Ventures, Inc.
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.
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.