Good Blawg post with background.

On Monday, the Northern District of Illinois (that's in Chicago, VoC), issued an order in favor of a third party website, Ripoff Report. This site hosted and apparently continues to host defamatory content written by defendants. These defendants were found liable after a default judgment. The absent defendants were therefore enjoined from posting the material online and required to remove it. But being absentees...they haven't done a damn thing.

To remedy this problem, the plaintiffs sought an order to have sites remove the material (which has been found defamatory, after all). Facebook and Myspace submitted to these orders, but not Ripoff Report.

Ripoff Report basically argued, "nah, we don't want to, and since we didn't write it or collaborate in it, we are protected by Section 230 of the Communications Decency Act."

The court basically ruled, "yeah, I guess the plaintiffs have no recourse; that's congress' fault."

Commentators have suggested that it's unlikely Congress would have intentionally passed something as breathtaking as CDA 230. I agree, but I think uncooperative operators like this "Ripoff Report" will make legislators rethink the rule. At the very least, immunity should be waived when the site is aware of the defamation. This would be something like distributor liability in the world of print--a pretty good compromise between full publisher liability and the status quo, I think.

It would seem that things are just getting worse, not better, as far as Section 230 is concerned.

A quote from the comments:



Now would probably be a good time to file another lawsuit, against www.RipoffReport.com itself, based on distributor liability. Depending on the circuit this may be a tough case to win, but this is about the perfect case to set a precedent favorable to the plaintiffs. If any case can do it, this is probably one.

Expensive though. Are there any legal action groups that might be willing to help the plaintiffs in this case? Ideally, a free speech group should be willing to help the plaintiffs, on the grounds that if the precedent is upheld that the plaintiffs have no recourse, section 230 will almost surely be overturned (unless a filibustering Senator figures out a loophole in the Senate rules which causes the Senate to shut down indefinitely, anyway). But, I don't think any of the major free speech groups are that forward looking.

I agree too that this was never intended by Congress. Congress set out to provide remedial legislation meant to impose responsibility on a lawless internet with the CDA. What they attempted was too broad and impermissible. What remained after the remedial portion was struck down was a measure meant to soften the burden. So the immunity remained after the proposed burden was rejected. This is one of the worse applications of a savings clause I can think of.

But I am less optimistic that that Congress will fix the mess. Some protection for people who are in the business of providing others a voice on the internet is a good thing. This truth provides cover for the very powerful interests of the telecom and internet sectors to overreach. This is made worse by the fact that these interest represent a sector still show potential for growth during a serious downturn. What is needed is legislation or a "judicial carve out" that makes a clear distinction between services that facilitate the speech of others and speech that serves the direct ends or becomes adopted by the host. But this is difficult to achieve against powerful interests once a new status quo was achieved so favoring them through legislative happen chance.

This isn't really a §230 case; the only mention of §230 is in dicta, and the refusal to bind Ripoff Report was based on a not-remotely-novel interpretation of what "acting in concert" means. Ripoff Report is clearly not an "agent" of the defendants in this case, and is not and should not be bound by an injunction naming only the defendant.

§230 certain looms large over the case, but the question of whether §230 protects Ripoff Report has not yet been litigated. However, the plaintiff has yet to properly raise the question of Ripoff Report's liability for defamation, having elected not to join them in the original prosecution. They can probably still do so, but it'll mean going head to head with them and with §230. Hopefully they won't get run over by the statute of limitations.

Yeah, it's a federal rules issue, but in the last page the judge does mention it. It's conventional wisdom that they can't be sued directly because of Section 230, so there's sort of a shrug and a comment that the plaintiff apparently has no remedy. Their best bet is to dream up some IP tort--if they weren't acting in concert with posting it, they're not likely to have contributed content anyway, which is the only other way to get around Sec. 230.

You don't think Section 230 leaves any room for an interpretation that immunity does not reach this far? Yes, some appeals courts have ruled otherwise, but if this is so clearly not within the intent of congress (seems to be widely agreed upon), and there is any way at all to read the law in a way which brings it within the intent of congress (i.e. some liability does not entail "treatment as a publisher or speaker"), I would think the courts ultimately would be likely to do so. It is likely that this case can be easily distinguished from any of the ones coming before it which upheld liability, even if the courts don't want to explicitly overturn any of the previous precedents.

Stephen Barrett tried two cases in the Northern District of Illinois based on distributor theories--one was after the temporary success in the California state courts on this theory (Barrett v. Rosenthal at the California appellate court). They were both losers. Here are some cases that have failed:

Chi. Lawyers' Comm. for Civ. Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 670-671 (7th Cir. 2008) ("the Lawyers' Committee proposes to limit its scope to screening under subsection ©(2). Yet subsection ©(2) does not deal with the liability of speakers and publishers, the subject of subsection ©(1)." - Plaintiffs argued that the provider must have some sort of screening in order to get safe harbor protection. I believe Anthony has argued that this is how the statute should be read. Judge Easterbrook and two colleagues disagreed.

Doe v. GTE Corp., 347 F.3d 655, 658 (7th Cir. 2003) ("Instead plaintiffs say that GTE is liable for aiding and abetting Franco. Yet nothing in the statute condemns assistants, as opposed to those who directly perpetrate the act. Normally federal courts refrain from creating secondary liability that is not specified by statute.") - Plaintiffs here argued that the site should be liable because it was hosting content from that had been obtained in violation of federal law. Judge Easterbrook disagreed with creating new secondary liabilities and noted that state publisher torts were preempted.

Dart v. Craigslist, Inc., 2009 U.S. Dist. LEXIS 97596, *25 (N.D. Ill. Oct. 20, 2009) ("While we accept as true for the purposes of this motion plaintiff's allegation that users routinely flout Craigslist 's guidelines, it is not because Craigslist has caused them to do so. Or if it has, it is only 'in the sense that no one could post [unlawful content] if craigslist did not offer a forum.' Chicago Lawyers, 519 F.3d at 671. Section 230©(1) would serve little if any purpose if companies like Craigslist were found liable under state law for 'causing' or 'inducing' users to post unlawful content in this fashion.")

Barrett v. Fonorow, 343 Ill. App. 3d 1184, 1193 (Ill. App. Ct. 2d Dist. 2003) ("The terms 'publisher' and 'distributor' derive their legal significance from the context of defamation law. *** Because the publication of a statement is a necessary element in a defamation action, only one who publishes can be subject to this form of tort liability.") - because defamation actions are state torts, your proposed suit would not work in Illinois. As the Illinois appellate court told Barrett in his defamation suit here, distributor liability is still based on being a "publisher"--at least in Illinois.


Only one appeals court has ruled otherwise to my knowledge, the California court of appeals in Barrett v. Rosenthal, which found that distributor liability could be imposed--but this decision was overturned. If you're thinking of Roommates, the court was emphatic that their immunity was forfeit because they actively contributed to contact in the form of a drop-down menu that would allow users to violate federal law. Similar suits have failed against, for example, Craigslist because they do not contribute to the content. See above.

Judging by some of the comments posted on Ars Technica (this one and this other one in particular), "Ripoff Report" appears to be little more than an ingenious extortion scheme, exploiting Google, SEO, and Section 230 as an easy means of getting away with it.

In retrospect, it's surprising someone didn't try something like this sooner, but maybe this person (his name is "Ed Magedson," and he even has a criminal record and everything!) was just waiting for the requisite case-law precedents to be established before he felt he could start making the big bucks.

It almost makes you feel sorry for Wikipedia, in a way - many of us thought Section 230 would have been clarified by now, but if that happens because of people like Magedson, Wikipedia and its users will just be lumped in with all the other crooks, historically speaking.

As far as the "ingenious extortion scheme" part goes, the Better Business Bureau has been doing that for years. See the BBB "Accredited Business" program.

Well, I didn't say it was an original idea... Besides, the ingenious part was in using SEO trickery and Section 230 in place of organizational legitimacy (which the BBB seems to have, to some degree).

That doesn't make it all right, either, of course. Still, does the BBB have a "no removal of content under any circumstances" policy? This guy appears to base his entire operation on it, as if any incident in which he's seen to "back down" would ruin him. I'd also be interested to know if the BBB refuses to allow any criticism of itself on its own website(s), like this guy apparently does.

I mean, this was an obvious troll from the word "go" - the OP was utterly non-credible, and it wasn't even about a "ripoff" at all (the perp just used the word "deadbeat" in the post's subject to get past whatever moderation is imposed, since they do seem to allow inclusion of "deadbeat dads" and people who fail to pay their debts). I mean, anyone who would deliberately allow something like that to be posted would have to be a total moron, or quite literally, evil.

Or both, I suppose... we often often overlook the fact that stupidity and evil have a way of going hand-in-hand.

Yeah, these guys are pieces of work. If we're hoping for Sec. 230 to be rolled back a little (congressionally or judicially), guys like this will trigger it. Wikipedia seems to cave to any order, even dubiously legitimate ones--they will therefore always seem halfway reasonable considering that they're probably not required to accommodate any complaints whatsoever.

Sec. 230 will only bite the dust when someone stands on the immoral madness of their full statutory protection.