CDA Section 230

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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.

 To the great frustration of plaintiffs and their attorneys, and even some judges, courts have construed Section 230 of the Communications Decency Act in such a way as to make it virtually impossible to hold a Web site operator liable for defamatory material that is posted on the site by a third party, even if the operator has knowledge of the defamatory nature of the material and refuses to remove it. Many plaintiffs have tried to plead around the robust protection provided by Section 230, but only a very few have succeeded. One of them is Cecilia Barnes, who alleged that she was defamed by false dating profiles posted by an ex-boyfriend on Yahoo!’s dating Web site. Any claim that Yahoo! was liable for the posting of the profiles by the ex-boyfriend is precisely the sort of claim that is barred by Section 230. But Barnes claimed that a separate promise by a Yahoo! employee to remove the profiles was not precluded.

Earlier this year, in Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir. 2009), the Ninth Circuit agreed with Barnes. The court concluded that because her claim alleged a separate undertaking by Yahoo!, distinct from the act of publishing the profiles, it did not implicate the Section 230 provision that bars holding a Web site operator liable as the “publisher” of information provided by a third party. The circuit court remanded the case for further consideration of Barnes’s surviving claim, which has now withstood a further motion to dismiss in the district court in Barnes v. Yahoo!, Inc., 2009 U.S. Dist. LEXIS 116274 (D. Ore. Dec. 8, 2009).

UPDATE:  The Ninth Circuit issued an amended opinion on June 22, 2009, see discussion below. The amended opinion included an order denying the parties’ petitions for rehearing and rehearing en banc.

Many attempts have been made to plead around the immunity provided to interactive computer services under Section 230 of the Communications Decency Act, and only a very few such attempts have succeeded. Here’s one that has succeeded at least to the point of getting a remand back to the district court. The appeals court concluded that the victim of the "incedent" false profiles posted on Yahoo! by a spurned boyfriend may have a cause of action against Yahoo! for allegedly promising to remove the profiles, then failing to do so.
 
Barnes v. Yahoo!, Inc., No. 05-36189 (9th Cir. May 7, 2009).

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.