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Anthony DiMeo, III v. Tucker Max

433 F. Supp. 2d 523 (E. D. Pa., May 26, 2006), aff'd., No. 06-3171 (3rd Cir., September 19, 2007).

CDA Immunizes Operator Of Message Boards That Edits Posts From Defamation Claim

Communications Decency Act immunizes operator of message board from defamation claims arising out of posts appearing thereon that were authored by others.  Such immunity extends to the defendant operator notwithstanding plaintiff’s claim that the defendant edits posts that appear on his boards, and selects posts that will either be published thereon, or removed therefrom.  The Court accordingly dismissed with prejudice defamation claims asserted by plaintiff Anthony DiMeo III arising out of offensive postings that appeared on defendant’s message boards. 

The Court also dismissed plaintiff’s claim that defendant violated the criminal statute 47 U.S.C. § 223 (a)(1)(C), which prohibits use of a telecommunications device anonymously to harass another.  Defendant neither acted anonymously – his name appeared both in the domain name and title of the message boards found on his website – nor did he use a telecommunications device, within meaning of the statute, in operating his web site.

Message Board Contains Anonymous Posts Critical Of DiMeo And New Year's Eve Party  

Plaintiff Anthony DiMeo III (“DiMeo”), “who says he is an heir and co-owner of a large New Jersey blueberry farm”, threw a New Year’s Eve party at the end of 2005 that did not turn out well.  Among other things, the number of guests that actually appeared greatly exceeded expectations, which resulted in the alcohol and food available for guests running out well before midnight.  Guests apparently got unruly, two pieces of art were stolen, and the police called to disperse the crowd.  The party had been organized by Renamity, DiMeo’s publicity firm, which contracted with Athmane Kabir, owner of a restaurant, to host the guests.

Tucker Max (“Max”) operates a web site at  Among other things, this website hosts a number of message boards, several of which are devoted to DiMeo’s New Year’s Eve party.  A number of offensive posts appeared on these boards.  Authored by anonymous individuals, these posts commented negatively on the event, expressed animosity toward DiMeo, or ridiculed him.

Importantly, however, the complaint did not allege that Max was the author of any of these posts.  Max’s involvement was instead limited to selecting, removing and/or editing posts that appear on his message boards.

Upset with these postings, DiMeo brought suit, seeking to hold Max liable for their publication on theories of defamation and violation of 47 U.S.C. §223 (a)(1)(c).  Finding neither claim available to plaintiff as a matter of law, the court dismissed plaintiff’s complaint with prejudice.

Communications Decency Act Immunizes Message Board Operator From Liability, Notwithstanding Fact That He Edits And Selects Posts For Publication

Plaintiff’s defamation claim was barred by application of the Communications Decency Act (“CDA”), 47 U.S.C. §230 (c)(1).  This statute states that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

The Court held Max met each of the three elements necessary to obtain the CDA’s protection.  By hosting message boards available to the public via the Internet, Max was both a provider and user of an interactive computer service.  The defamation claim at issue sought to hold Max liable as a speaker or author of the posts in question, and hence was a claim for which the statute offered protection.  Finally, the posts were authored by others.

In reaching this result, the Court rejected plaintiff’s claim that the posts did not come from a third party within the meaning of the statute, because of Max’s involvement in their publication.  More particularly, DiMeo argued that an “information content provider” is defined in the CDA as “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.”  Plaintiff argued that because Max selects posts for publication, and edits their content, he was “responsible, in whole or in part for the…… development of information” contained therein.  As such, urged DiMeo, Max is an “information content provider” of the posts at issue within the meaning of the CDA who accordingly cannot use the statute to shield himself from defamation claims arising therefrom.

The Court rejected this argument.  The fact that Max edited and selected posts for publication did not make him their author within the meaning of the CDA.  Relying on Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2002), and Green v. AOL, 318 F.3d 465 (3rd Cir. 2003), the Court held that “because DiMeo alleges that Max did not more than select and edit posts, we cannot consider him to be the ‘provider’ of the ‘content’ that DiMeo finds offensive.”

Claims Alleging Misuse Of Telecommunications Device To Harass Also Dismissed

The Court also dismissed plaintiff’s claim under 47 U.S.C. §223 (a)(1)(c).  This statute criminalizes the “utiliz[ation of] a telecommunications device…. without disclosing (one’s) identity and with intent to annoy, abuse, threaten, or harass any person…..who receives the communication.”  Plaintiff’s claim failed because defendant did not act anonymously.  Quite the contrary, his name appeared in the site’s domain name, and in the title of the Message Board section of the site.  Nor did Max use a “telecommunication device” in the operation of his website within the meaning of the Act.  Notably, the Act expressly provides that the term “telecommunications device…. does not include an interactive computer service.”  47 U.S.C. § 223 (h)(1)(B).  Because the complaint failed for these reasons, noted the Court, it was unnecessary to determine whether the statute permitted an aggrieved party to bring a civil suit for its violation.

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