Monday, November 21, 2016

Interesting 7th Circuit opinion on CDA 230

The Court reverses a lower court decision dismissing the plaintiff's defamation claim against Gawker Media pertaining to comments on one of its websites--see the discussion that starts at p. 13.  Here's the crucial bit:

A company can, however, be liable for creating and posting, inducing another to post, or otherwise actively partici-pating in the posting of a defamatory statement in a forum that that company maintains. See Chi. Lawyers’ Comm., 519 F.3d at 671; see also Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157, 1166–67 (9th Cir. 2008) (en banc) (concluding that a website was not a "passive transmitter of information provided by others" but instead helped develop the information by "requiring subscribers to provide the information as a condition of accessing its ser-vice, and by providing a limited set of pre-populated an-swers"); FTC v. Accusearch Inc., 570 F.3d 1187, 1199–1200 (10th Cir. 2009) (concluding that a website developed the in-formation by "solicit[ing] requests" for the information and then "pa[ying] researchers to obtain it").


Huon argues that the Act is inapplicable here because Gawker’s comments forum was not a mere passive conduit for disseminating defamatory statements. Rather, Gawker itself was an information content provider, insofar as the Gawker Defendants: (1) "encouraged and invited" users to defame Huon, through selecting and urging the most defa-mation-prone commenters to "post more comments and con-tinue to escalate the dialogue"; (2) "edited," "shaped," and "choreographed" the content of the comments that it re-ceived; (3) "selected" for publication every comment that appeared beneath the Jezebel article; and (4) employed indi-viduals who authored at least some of the comments them-selves.

I wonder what role worries about this issue played in the decision awhile back of Above the Law (also a defendant at an earlier stage in this litigation) to eliminate its comment sections?

Law in Cyberspace, Of Academic Interest | Permalink