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Designer Skin LLC v. S & L Vitamins, Inc., et al.
Unauthorized internet reseller of plaintiff’s products is not guilty of trademark infringement, and does not cause actionable initial interest confusion, by using plaintiff’s trademarks in meta tags of website at which plaintiff’s and its competitors’ products are sold, and in...

Defamation/Libel/Communications Decency Act - Internet Library of Law and Court Decisions - Updated November 21, 2008

This section of the Internet Law Library contains a host of court decisions addressing online defamation and libel claims, the jurisdictions in which they can be brought and the application of the single publication rule thereto. The cases discussed below also address the potential liability of third party publishers such as Internet Service Providers, chat room and bulletin board operators for the defamatory comments of others, and the protections they can be expect to receive in these and other situations by application of the Communications Decency Act.

26 Med. L. Rptr. 1032 (Cal. Superior Crt., San Francisco City and County, Sept. 23, 1997)

Communications Decency Act preempts state law claims against ISP for negligence, breach of contract, intentional infliction of emotional distress, alter ego liability, injunctive relief and violation of civil rights arising from IPS's distribution of material written by another that contained derogatory comments about plaintiffs, including that they were the "ring leaders" of an "international conspiracy" to further "Satanic Ritual Abuse" of children.

1 CA-CV 04-0823, 125 P.3d 389 (Arz. Crt. App., 2006)

Court holds that the Communications Decency Act, 47 U.S.C. § 230 ("CDA") immunizes web hosting company from liability arising out of its hosting of a third party's website that allegedly contained defamatory statements about plaintiff.  Following the Fourth Circuit's decision in Zeran v. AOL, the Court holds that such immunity exists notwithstanding any notice the web hosting company received concerning the defamatory nature of the content it was hosting.  The Court also dismisses plaintiff's defamation claims against the originator of the content at issue, holding it lacks personal jurisdiction over him.  The Court reached this result notwithstanding the fact that this defendant had contracted with an Arizona web hosting company to host the website which contained the defamatory statements at issue.  The Court held the exercise of jurisdiction over the defendant would be unreasonable given the fact he was a non-resident, the parties each operated Bali-related travel services, and the dispute was governed by Bali law.

Index No. (Sup. Ct. N.Y. Co., December 14, 2001)

Plaintiff bank brought defamation claims against defendant Mario Menendez-Rodriguez, a Mexican resident and journalist, defendant Narco News, a web site, and defendant Al Giordano, its publisher, arising, in part, out of statements defendants made concerning Roberto Hernandez-Ramirez, plaintiff's largest shareholder, general director and chairman of its board of directors, and the bank itself. In these statements, defendants accused Hernandez-Ramirez of being a "drug trafficker", and of having used gains from illegal endeavors to acquire the plaintiff bank. The Narco News also allegedly claimed that "bank officials have been arrested for drug-money laundering …". Defendants allegedly made the statements in question in a newspaper published in Mexico, Por Esto! with which defendant Menendez-Rodriguez is affiliated, in an interview given to The Village Voice, a New York publication, during a panel discussion at Columbia University in New York, and/or in articles published on the Narco News web site.

The court, on defendants' motions, dismissed the complaint. The claims advanced against defendant Menendez-Rodriguez were dismissed on the ground that the court lacked personal jurisdiction over him given the plaintiff's failure to allege facts sufficient to show that Menendez-Rodriguez, a non-resident, "transacted purposeful business activity bearing a substantial relationship to the subject matter of the lawsuit in [New York]." The defamation claims against the remaining defendants were dismissed as a result of plaintiff's failure to allege facts sufficient to state a claim against them. The court determined that these defendants were media defendants entitled to heightened protection under the First Amendment. Given that they were reporting on matters of public concern plaintiff, to state a claim against them, had to allege facts sufficient to show both that the statements they allegedly made were false, and that they were made with "actual malice," that is with knowledge that the statements were false or made with reckless disregard for the truth. The court held that plaintiff had not alleged facts sufficient to establish that the remaining defendants had acted with actual malice, given, inter alia, their reliance on articles appearing in Por Esto! for the statements they made, and accordingly dismissed the complaint against them.

2005 WL 3005602, Civ. No. 05-926-AA (D. Or., November 8, 2005)

Court holds that the Communications  Decency Act, 47 U.S.C. § 230 ("CDA"), immunizes defendant Yahoo, Inc. ("Yahoo") from tort claims arising out of its alleged failure to timely honor promises to remove from Yahoo's web site objectionable content about plaintiff posted by a third party.  The content consisted of "profiles" contained both nude photos of plaintiff, and accurate contact information.

S122953, 40 Cal.4th 33 (Cal. Sup. Ct., November 20, 2006)

Reversing the Court of Appeals, the California Supreme Court holds that Section 230 of the Communications Decency Act ("CDA") immunizes defendant Ilena Rosenthal ("Rosenthal") from defamation claims arising out of her republication in two online newsgroups of an allegedly defamatory article authored by a third party.  In reaching this result, the California Supreme Court rejected the Court of Appeals' attempts to limit the immunity afforded by Section 230(c)(1) of the CDA to publishers, while leaving exposed to defamation claims "distributors" of defamatory statements who have notice of the defamatory nature of the statements they distribute.  The Supreme Court held that such "distributors," commonly know as "secondary publishers," are entitled to the same broad immunity afforded publishers under the CDA.  As explained by the Fourth Circuit in Zeran v. AOL, cited with approval by the California Supreme Court, the CDA "creates a federal immunity to any cause of action that would make service providers liable for information originating with a third party user of the service" except claims such as those arising under the Intellectual Property laws, specifically exempted by the statute.

The Supreme Court also held that the broad immunity afforded under the statute to the providers of interactive computer services extended by operation of the statute's express language to "users" of such services.  "Users" protected by the CDA included those who use an interactive computer service to access the Internet and thereby to post or republish on the Internet a defamatory statement authored by a third party.  As stated by the Court, "by declaring that no 'user' may be treated as a 'publisher' of third party content, Congress has comprehensively immunized republication by individual Internet users."

9 Cal.Rpt.3d 142, A096451 (Cal. App. Crt., 1st App. Dist., October 15, 2003) reversed 40 Cal.4th 33, S 122953 (Cal. Sup. Ct., November 20, 2006)

Rejecting Zeran v. America Online, (4th Cir. 1997) and its progeny, an intermediate California Appellate court holds that the Communications Decency Act ("CDA") does not immunize a user of interactive computer services from a defamation claim arising out of her republication of statements authored by a third party, when the user knew or had reason to know of the falsity of those statements.  As a result, the Appellate Court reversed to much of the decision of the trial court below which had dismissed a defamation claim brought against defendant Ilena Rosenthal as a result of her republication in Usenet postings of a statement authored by a third party (defendant Timothy Bolen) which accused plaintiff Polevoy of criminal conduct.

The trial court had also rested its dismissal under California's Anti-SLAPP statute of plaintiffs' defamation claims on its determination that Polevoy lacked the requisite probability of success because, as a public figure, he could not prove that defendant Rosenthal acted with 'malice' when republishing Bolen's statements.  The Appellate court rejected this determination, holding that plaintiff may be able to establish that Rosenthal acted with the required malice, and therefore could proceed, notwithstanding Rosenthal's allegation that she had checked the veracity of the statements she was republishing with the alleged victim.  The Appellate Court held that such was insufficient to require dismissal of plaintiff's complaint, because of the alleged bias of both the victim and the original author of the posting against the plaintiff.

The Appellate Court did affirm the lower court's dismissal of defamation claims advanced by plaintiff Barrett, because the statements at issue were non-actionable opinion, as well as the trial court's decision to award Rosenthal attorney's fees expended in pursuing her Anti-SLAPP motion to dismiss (though reducing the recoverable amounts to reflect the reversal of that court's decision as to the claims asserted by Polevoy).

This decision, if followed, could have important ramifications for internet service providers and others who regularly repost publications authored by third parties without reviewing their content.  Under the court's ruling, service providers can be liable for defamation as a result of their republication of such statements if they know or have reason to know of the falsity of those statements.  According to the court "distributor liability would [generally] not require a service provider to review communications in advance of posting them but only to act reasonably after being put on notice that the communication is defamatory."  As a result, once the service provider receives notice (from the allegedly defamed individual) of falsity, it must either undertake adequate steps to ascertain the veracity of the statement, remove it, or face potential liability.  This creates tremendous uncertainty as the court did not specify what such adequate steps would be.  Indeed, as noted above, in the case at bar, where plaintiff alleged he was defamed by a statement that he had engaged in criminal conduct, the court held that contacting the victim was not sufficient as a matter of law to warrant dismissal of plaintiff's suit because of the victim's purported bias against plaintiff Polevoy.  Subsequent developments in this case should be watched closely by those interested in this field.

333 F.3d 1018, No. 01-56380 (9th Cir., June 24, 2003) petition rehearing and rehearing en banc, denied, 351 F.3d 904 (9th Cir., December 3, 2003)

In this defamation suit, the Ninth Circuit Court of Appeals holds that the operator of a listserv and website is a user of interactive computer services entitled to the protections of the Communications Decency Act ("CDA") against liability arising out of his publication of information provided by another information provider.  Because, however, the author of the information at issue claimed he did not mean for the defendant operator of the listserv to publish it, the Ninth Circuit remanded the case to the District Court for a determination as to whether the listserv operator was entitled to immunity under the CDA in this particular case.  Such immunity should be granted, held the Ninth Circuit, if the information in question was provided to the listserv operator by a third party under circumstances in which a reasonable person would conclude that the third party provided the information for publication on the Internet.  The Ninth Circuit accordingly vacated so much of the District Court's decision which denied defendant's motion to dismiss this defamation action under California's Anti-SLAPP statute, which motion was to be reconsidered on remand.  The Ninth Circuit also affirmed the District Court's rejection of plaintiff's defamation claims against Mosler, which were predicated solely on its placement of ads on the website at issue.

No. CV-06-1537-PHX-DGC (D. Az., September 5, 2008)

Court in large part grants defendants’ motion for summary judgment, and dismisses claims arising out of defendants’ operation of a website on which third parties, and defendants themselves, posted a number of statements critical of plaintiff Best Western International Inc.  Left unresolved by the Court’s motion were plaintiff’s claims that a number of additional posts authored by defendants were in fact defamatory.

Best Western is a non-profit member corporation, which assists its members in running their hotels.  Defendants are members of Best Western who operate hotels, their spouses, and an individual who assisted in the creation of the website at issue.  The member defendants are bound by the terms of membership agreements with plaintiff. 

The Court held that the immunity granted defendants under the Communications Decency Act barred plaintiff from seeking to hold them liable for defamatory posts authored by third parties that appeared on defendants’ website.  Defamation claims arising out of 50 posts defendants themselves authored failed because plaintiff did not present sufficient evidence to establish that defendants acted with the requisite degree of fault necessary to sustain a defamation claim.  Thus, plaintiff failed to establish that defendants acted with either actual malice or negligence in making these statements, or with knowledge of their alleged falsity.   In reaching this result the Court noted that possessing ill will toward plaintiff was insufficient to establish ether that defendants acted with the requisite degree of fault, or that they were guilty of defaming plaintiff. 

The Court also rejected tortuous interference with contract or prospective advantage claims arising out of the posting on defendants’ site of statements urging plaintiff’s members to switch to a competitor’s organization.  The Court held that plaintiff failed to prove either that such statements caused it any injury, or that defendants or the competitor acted improperly in making these posts.  In reaching this result, the Court noted that plaintiff’s competitor is free to make posts that promote itself and its own economic interests.

Finally, the Court rejected various breach of contract claims advanced by plaintiff, asserting that defendants breached the parties’ membership agreement by making public confidential information, or failing to meet the membership agreement’s requirement to use their best efforts to maintain positive relationships with customers.  As to the former, the Court held there were no such prohibitions in the parties’ agreement that bound defendants.  As to the later, the Court held that the prohibitions applied to other aspects of defendants’ business, with which obligations defendants complied.

The Court did allow plaintiff Best Western to pursue breach of contract claims arising out of the use by the member defendants of Best Western’s trademark on the website at issue, which use purportedly violated the parties’ membership agreement.

CV-06-1537-PHX-DGC (D. Az., July 25, 2006)

Following the lead of the Delaware Supreme Court in Cahill, the Court holds that to obtain leave to serve a subpoena to ascertain the identity of an anonymous online speaker accused of making defamatory statements, a plaintiff must submit evidence of the validity of his claim sufficient to defeat a motion for summary judgment, and establish the existence of a prima facie case.  Because Best Western had not even identified the allegedly defamatory statements, let alone attempted to show their falsity, the court denied Best Western's motion for leave to serve a subpoena.  Plaintiff was given leave to renew its motion on a more substantive evidentiary showing as to the validity of its claims.  The Court did direct the ISPs from whom discovery was sought to preserve any information they may have concerning the identity of the speakers at issue, recognizing that absent such relief, this data may well be lost.

B160126 (Cal. Crt. App., March 4, 2003)

Court denies defendant's motion, brought under California Code of Civil Procedure Section 425.16, to strike defamation, disparagement and intentional interference claims arising out of statements defendant allegedly made in Internet chat rooms.  Defendant sought to strike these claims on the ground that they were advanced to inhibit his criticism of plaintiff in violation of Section 425.16, which provides protection against "Strategic Lawsuits Against Public Participation," otherwise known as SLAPP suits.  While the Court found that defendant's chat room comment were entitled to protection under Section 425.26, it held that plaintiffs had proffered sufficient evidence in support of the validity of their defamation claims to be permitted to proceed therewith.

C.A. No. 6:06-109-HMH (D.S.C. October 22, 2007)

Granting defendant’s motion for summary judgment, the District Court dismisses defamation, trademark infringement, and invasion of privacy claims brought by plaintiffs against a blogger.  The claims arose out of defendant’s publication of articles on his blog, featuring plaintiff’s trademark, that were critical of plaintiffs’ eBay auction listing business. 

The Court held plaintiff’s trademark dilution claims failed because defendant used the mark in connection with “news reporting and news commentary,” a non-actionable use under the Federal dilution statute.  The Court held plaintiffs’ defamation claims failed because the statements at issue – which purportedly accused plaintiff Schmidt of being a “yes man” ‘who overpromised and underdelivered’ were non-actionable statements of opinion.  Finally, the Court held plaintiffs’ invasion of privacy claims – which were premised on a link on defendant’s blog to another site which contained a picture of plaintiffs – failed.  The Curt rested this holding on its determination both that South Carolina does not recognize a claim for false light invasion of privacy, and that, in any event, the link and article in question did not cast plaintiffs in a false light.  The Court also grounded its rejection of this claim on its holding that the link and corresponding use of the photo did not constitute a viable ‘wrongful appropriation of personalty’ invasion of privacy claim, given that plaintiffs had consented to the use of their photo on the internet site on which it was contained.

2000 U.S. Dist. Lexis 14180, 119 F. Supp. 2d 309 (S.D.N.Y., September 28, 2000)

Court refuses to enjoin defendants from operating web sites critical of plaintiffs' business, or from utilizing plaintiffs' common-law service mark in meta tags on those sites to attract visitors seeking information about plaintiffs. The court also refused to enjoin defendants from continuing to publish allegedly libelous statements about plaintiffs on their web sites.

992 F. Supp. 44 (D.D.C. April 22, 1998)

Court holds defamation claim against AOL as a result of its making available a gossip column written by a third-party content provider titled the"Drudge Report" was barred by the Communications Decency Act. Court reached this conclusion notwithstanding the fact that AOL had reserved the right to exercise control over the Report's editorial content, and further, had promoted the report as a gossip column, thereby acknowledging the nature of the report's general content and the risks inherent therein.

The court denied defendant Drudge's motion to dismiss for want of personal jurisdiction. Drudge's maintenance of an interactive website, on which his Report appeared, which permitted users to subscribe to the Drudge report via e-mail, and solicited contributions from forum residents to defray publication costs, combined with other contacts with Washington D.C., including a visit to D.C. to promote the report, and mail and phone contacts to obtain gossip, made the exercise of jurisdiction over him appropriate.

C.A. No. 04C-11-022 JRS (Superior Crt. Del., June 16, 2005), reversed, No. 266, 2005 (Del. Supreme Crt., October 5, 2005)

Court holds that ISP can be compelled in response to Subpoena Duces Tecum to release information that will identify an anonymous speaker accused of making defamatory statements in a blog about plaintiffs provided plaintiffs can show: (i) they have a "good faith basis" to bring their defamation claim; (ii)  the information sought is directly and materially related thereto; and (iii) the information sought cannot be obtained from another source.  Finding plaintiffs had met this burden, the Court directed Comcast to disclose the requested information concerning defendant's identity.  In reaching this result, the Court declined to follow Dendrite Intl. v. Doe, 775 A.2d 756  (N.J. Sup. Ct. App. Div. 2000), which held the party seeking relief to a higher standard, requiring him to demonstrate a prima facie case as a prerequisite to obtaining such disclosure.

S02G0361 (Ga. Sup. Ct., Nov. 25, 2002)

Reversing the court below, a divided Georgia Supreme Court holds that plaintiff, the President of a waste hauling company, is a limited purpose public figure who accordingly must prove that defendant proceeded with “actual malice” to prevail on libel claims arising out of defendant’s allegedly defamatory postings on an Internet bulletin board. The court further holds that plaintiff is barred by Georgia statute from pursuing punitive damage claims as a result such postings. According to the court, Georgia statute 51-5-11 requires any plaintiff libeled by a communication to first demand a retraction of the libelous statement before being permitted to proceed with a claim for punitive damages. As plaintiff did not make such a demand, he could not pursue his punitive damage claim. In a spirited dissent, three judges disagreed with each of these holdings.

339 F.3d 1119 (9th Cir., August 13, 2003)

Ninth Circuit holds that operator of online dating service is immunized by the Communications Decency Act ("CDA") from defamation, invasion of privacy, misappropriation of right of publicity and negligence claims arising out of the unauthorized posting on defendant's website by a third party of a fictitious dating profile.  This profile contained fictitious information about plaintiff, an actress, as well as accurate contact information and photographs of her.  This information was posted in response to a form questionnaire prepared by defendant to which all users of its service had to respond.

207 F. Supp. 2d 1055 (C.D. Cal., March 11, 2002), aff'd. on other grds., 339 F.3d 1119, No. 02-55658 (9th Cir., August 13, 2003)

Court grants motion of defendants Metrosplash.com and Lycos for summary judgment, and dismisses claims of invasion of privacy, defamation, misappropriation of right of publicity and negligence brought against them by plaintiff Carafano, an actress.  These claims arose out of the posting of a dating profile by a third party on the defendants' Matchmaker website, which profile allegedly contained fictious information about plaintiff, as well as accurate contact information and photographs of her.  This information was posted in response to a form questionnaire prepared by defendants to which site members had to respond.

The court rejected defendants' argument that plaintiff's claims were barred by application of Section 230 of the Communications Decency Act.  While the defendants were "interactive service providers" within the meaning of the statute by virtue of their operation of the Matchmaker website, defendants were not entitled to the statute's protection because of the role they played in originating the content in question.  Such protections are available only as to claims arising out of information provided by an information content provider other than the defendant.  The court barred defendants from using the CDA as a shield because the information in question was posted in response to a questionnaire prepared by defendants.

Nonetheless, the court dismissed each of the claims raised by plaintiff against defendants.  Plaintiff's invasion of privacy claim failed because the information in question, her address, was "newsworthy," making its publication non-actionable.  The defamation claim was dismissed because, given plaintiff's status as a public figure, she could not show that defendants acted with actual malice in publishing the statements in question, a prerequisite to such a claim.  Such malice was absent because defendants were unaware of the information contained in "plaintiff's" profile at the time it was posted to defendants' site by a third party, and thus did not entertain any serious doubt as to its truth at the time it was published.  Plaintiff's misappropriation of right of publicity and negligence claims failed for the same reason, plaintiff's inability to establish that defendants acted with the requisite actual malice.

461 F.Supp.2d 681, Case No. 06 C 0657 (N.D. Ill., November 14, 2006) aff'd -- F.3d -- (7th Cir. Mar. 14, 2008)

Court holds that the Communications Decency Act ("CDA") immunizes defendant Craigslist, Inc. ("Craigslist") from liability for publishing housing ads authored by third parties that allegedly violate the Fair Housing Act, 42 U.S.C. § 3604(c) ("FHA").  In reaching this result, the Court held that the immunity afforded internet service providers under section 230(c)(1) of the CDA only extends to claims seeking to hold an ISP liable as a publisher for content authored by third parties, and not to all claims arising out of the ISP's role in giving the public access to such content.  Because the FHA claims at issue were premised on Craigslist's publication of offensive ads authored by third parties, the Court held they were barred by the immunity granted under Section 230(c)(1).

CV 2007-003720 (D. Ariz., October 24, 2007)

Court holds that the Communications Decency Act (“CDA”), 47 U.S.C. Section 230(c)(1), mandates dismissal of so much of plaintiff’s defamation claim that arises from the publication by third parties of comments critical of plaintiff on a website defendants operate known as the “ripoffreport.com.”  The CDA further mandates dismissal of claims arising out of defendants’ promotion of its site and the allegedly objectionable content thereon, making the site more accessible to search engines and users, or soliciting contributions to assist in making the information on the site available.  The Court did , however, allow plaintiff to pursue defamation claims arising out of the headlines for third party content authored by the defendants, which themselves purportedly contained defamatory content.

351 F.Supp. 2d 1090 (W.D. Wash., December 21, 2004)

Court holds that the Digital Millennium Copyright Act ("DMCA") immunizes Amazon.com, Inc. ("Amazon") from copyright infringement claims arising out of the sale by nonaffiliated third party vendors on Amazon.com of photographs in which plaintiff claims a copyright.  In reaching this result, the Court held that Amazon had met both the DMCA's threshold requirements, as well as the requirements necessary to qualify for the protection of the safe harbor provisions of 17 U.S.C. § 512(c).  512(c) protects service providers from liability for copyright infringement by reason of their storage of infringing materials at the direction of a third party.

The Court dismissed plaintiff's Lanham Act claim, finding that it was the Copyright Act, and not the Lanham Act, that provided any remedy for the alleged wrongs at issue.  The Court also dismissed plaintiff's Washington State law Consumer Protection Act and tortious interference with business relations claims, finding Amazon immunized therefrom by operation of the Communications Decency Act.

Finally, the Court held that issues of fact precluded dismissal of copyright infringement claims plaintiff asserted arising out of the alleged use of one of its copyrighted images in an advertisement on a separate website owned by Amazon.

776 F.Supp. 135 (S.D.N.Y. 1991)

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

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.

Analysis of the Third Circuit's decision can be found below in the Quick Hits section of this page.

Case No. 97-2587, 718 So. 2d 385 (Fourth District Court of Appeal, Fla, October 14, 1998) aff'd. 2001 Fla. Lexis 449 (Fla. March 8, 2001)

Relying heavily on Zeran v. AOL, 129 F.2d 327 (4th Cir. 1997) cert. denied, 118 S.Ct. 2341 (1998), the Florida District Court of Appeal affirmed the lower court's holding that the Communications Decency Act preempts state law claims advanced against an information service provider arising out of the ISP's allegedly improper participation in the sale or distribution of obscene material due to its alleged notice that a third party was using the ISP's chat rooms to market pornographic materials. The Court also affirmed that lower court's holding that the CDA preempts state law claims arising out of events that occurred prior to the CDA's enactment, but which claims were not asserted until after the CDA's enactment.

Case No. CL 97-631AE (Cir. Ct. Palm Beach Co. Fla, June 26, 1997), aff'd. 718 So. 2d 385 (Fl. Ct. App., Oct. 14, 1998) aff'd. 2001 Fla. Lexis 449 (Fla. March 8, 2001)

Communications Decency Act preempts state law claim of improper participation in sale or distribution of obscene material asserted against information service provider as a result of its alleged notice that third party was using ISP's chat rooms to market pornographic materials. Court further held that CDA applies retroactively to preempt state law claims arising out of events that occurred prior to the CDA's enactment, but which claims were not asserted until after the CDA's enactment.

Civil Action No. 07-cv-286 (D. N.H., March 27, 2008)

Court holds that the Communications Decency Act immunizes defendants from various non-intellectual property claims arising out of their making available on their adult social networking sites an anonymous profile authored by an unknown third party which plaintiff claims falsely appears to people who know her to be her own.  The Court holds that this immunity also covers non-intellectual property claims arising out of defendants reposting this profile on third party sites, making slight alterations to the profile as to the participant’s age, and using the profile in teasers and other advertisements for defendants’ site.  As a result, the Court dismissed claims plaintiff advanced for defamation, intentional infliction of emotional distress, intentional, reckless, negligent and/or willful and wanton conduct, and violations of the New Hampshire Consumer Protection Act, arising out of such alleged misconduct.

The Court held that the Communications Decency Act did not, however, immunize defendants from intellectual property claims plaintiff advanced, both under applicable federal and state laws, including right of publicity claims advanced under New Hampshire state law.   Plaintiff was accordingly allowed to proceed with claims that defendants, by including identifiable aspects of plaintiff’s persona in advertisements and ‘teasers’ in an effort to increase the profitability of their websites, violated her right to publicity.

The Court further held that plaintiff could proceed with Lanham Act false designation of origin and false advertising claims against the defendants.   The false advertising claim was based on the inclusion of the profile at issue in ‘teasers’ and other advertisements for defendants’ site.  These acts allegedly deceived consumers into registering for defendants’ services in the hope of interacting with plaintiff, and caused injury to her reputation as a result, including alleged lost employment opportunities.  The false designation of origin claims similarly arose out of defendants’ use of the profile at issue in marketing their sites, which falsely implied plaintiff’s affiliation with, or sponsorship and approval of, defendants’ site and service.

2000 Conn. Super. Lexis 570, 46 Conn. Supp. 406, 755 A.2d 1000 (Sup. Ct. Conn., March 7, 2000)

Court holds that under Communications Decency Act, ("CDA"), 47 U.S.C. §230, America Online ("AOL") is immune from suit seeking to hold it liable for participating in the transmission, as an ISP, of an e-mail message composed by another defendant (unaffiliated with AOL) to various individuals.

2000 U.S. Dist. Lexis 8845 (N.D. Ill., June 21, 2000)

Court holds that those engaging in web site hosting activities are immunized by the Communications Decency Act, 47 U.S.C. 230(c) from liability arising out of their involvement, via those activities, in the dissemination or publication of information originating from third parties. Section 230(c)(1) provides 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 that those who provide web hosting services are service providers within the meaning of the CDA, and hence entitled to the immunity it provides. Said the court: "by offering web hosting services which enable someone to create a web page, [defendants] are not magically rendered the creators of those web pages. See 47 U.S.C. 230(c)(1). As such, plaintiffs' new characterization of [defendants] as web hosts neither prevents these defendants from being deemed service providers protected by immunity under the CDA nor makes them content providers unprotected by the CDA's immunity."

27 Med. L. Reptr. 1794(D.N.M., Mar. 1, 1999), aff'd. 206 F.3d 980 (10th Cir.,Mar. 14, 2000), cert. denied, 531 U.S. 824 (Oct. 2, 2000)

Court dismissed claims of defamation and negligence asserted by plaintiff company against America Online ("AOL") arising out of AOL's posting of allegedly inaccurate stock quotes concerning plaintiff on its website, which quotes had been supplied to AOL by third-party content providers. Court held that such claims were barred by 47 U.S.C. §230, and the immunity granted thereunder to providers of "interactive computer services" such as AOL, for publication of content prepared by third-party information content providers. This dismissal was mandated even though AOL attempted to have its vendors correct the errors at issue.

Civ. Act. No. 6:02CV0040 (W.D.Va., March 4, 2003)

Court dismisses action brought against a non-resident for want of personal jurisdiction.  In the action, plaintiff, a nationally known public figure who resides in Virginia, sued a non-resident, inter alia, for defamation and violation of the Anticybersquatter Consumer Protection Act ("ACPA") as a result of critical statements defendant made on a website he operated at a Url bearing plaintiff's name.  Finding that defendant had not, by his activities, expressly targeted a Virginia audience, the court dismissed the suit for want of personal jurisdiction.

Claim No. 97999, 184 Misc. 2d 105, 706 N.Y.S 2d 835 (N.Y. Crt. of Claims, March 8, 2000), aff'd., 731 N.Y.S. 2d 244 (N.Y. App. Div., 2001), aff'd., -- N.Y. -- (N.Y., July 2, 2002)

Court of Claims holds the "single publication" rule applicable to the publication of a governmental report on the Internet. Under this rule, the Statute of Limitations on a claim for defamation arising out of such publication begins to run on the date the report first appears on the Internet; the continued maintenance of the report on the Internet in identical fashion does not constitute multiple or repeated republications which give rise to separate defamation claims, or a new limitations period.

207 F. Supp.2d 914 (W.D. Wis., March 28, 2002)

Court allows plaintiff to proceed with claims advanced against his employer and various fellow employees under the Electronic Communications Privacy Act, the Electronic Communications Storage Act, and Wisconsin's right to privacy statute, Wis. Stat. Section 895.50, as well as a common law defamation claim, arising out of defendants' interception of a telephone call plaintiff placed from his place of employ, and defendants' review of e-mails contained in a personal e-mail account plaintiff maintained with Hot Mail, which account plaintiff accessed from his work place.  There were sharply differing versions of the content of these various communications.  Defendants alleged that during the telephone call, the participants, while masturbating, graphically described homosexual activity between two males.  Plaintiff denied this.  Defendants also alleged that e-mails read from plaintiff's email account evidenced that plaintiff was involved in homosexual activity.  Plaintiff denied that these e-mails had been sent to him.

Defendants' version of the telephone conversation was related to various third parties, which resulted in the termination of plaintiff's employment.  This lawsuit ensued.  The court determined that plaintiff should be permitted to proceed with various claims he asserted. 

The court refused to dismiss plaintiff's claim, advanced under Wisconsin's right of privacy law, section 895.50, arising out of the review of e-mail from plaintiff's personal Hot Mail account.  The court held that issues of fact existed as to whether the review of such e-mail would be highly offensive to a reasonable person, and as to whether a reasonable person could consider such an account to be private, which precluded a grant of summary judgment to defendants.  The court also refused to dismiss the claim plaintiff brought under the Electronic Communications Storage Act arising out of the review of these e-mails.  If such a review took place (as opposed to defendants' having fabricated the e-mails) it would run afoul of the Stored Communications Act.  The court did dismiss the claims plaintiff raised under the Computer Fraud and Abuse Act, holding that plaintiff had not alleged economic damages arising from the review of these e-mails sufficient to state a claim under the Act.

The court also refused to dismiss the claims plaintiff advanced under the Electronic Communications Privacy Act and Wisconsin Privacy Act arising out of the interception of the telephone call described above.  The court refused to dismiss plaintiff's ECPA claim because, depending on what actually occurred, the defendants should have stopped listening to the telephone call when they discovered it was personal in nature.  The court refused to dismiss plaintiff's privacy act claims because plaintiff may have had a reasonable expectation of privacy in the telephone call if his claim that he made the call from a place his employer designated for private personal calls was true.

Lastly, the court refused to dismiss plaintiff's defamation claim, finding that issues of fact precluded it from determining whether defendants' communication of their version of the telephone call to third parties was protected by the common interest privilege possessed by members of religious associations as to communications pertaining to the qualifications of those who work for the organization.  Such privilege may have been lost, given plaintiff's claim that the defendants were lying about what took place during the telephone call.

99 Cal. App. 4th 816, Super Ct. No. GIC746980 (Cal. Crt. App., June 26, 2002)

California intermediate appellate court affirms the decision of the trial court, and dismisses claims brought by plaintiffs against eBay under both California's Autographed Sports Memorabilia statute and California's Unfair Competition law, as well as for negligence, arising out of plaintiffs' purchase of allegedly non-authentic autographed sports memorabilia offered for sale by third parties on eBay's web site. Plaintiffs sought to hold eBay liable under California's Autographed Sports Memorabilia statute as a result of eBay's alleged failure to supply certificates warranting the authenticity of the goods purchased.  The court held that eBay was not obligated to supply the certificates because it was not a "dealer" of sports memorabilia within the meaning of the statute, as the goods in question were sold by third parties.  The court further held that section 230 of the Communications Decency Act ("CDA") immunized eBay from any liability arising out of its failure to supply these certificates.  The court held that, however couched, plaintiffs' claim sought to hold eBay liable for the allegedly false descriptions of the goods supplied by third parties.  As the CDA creates "federal immunity to any cause of action that would make interactive service providers liable for information originating with a third party use of the service" (excepting intellectual property claims) plaintiffs' Autographed Sports Memorabilia claims had to be dismissed.

The court held that plaintiffs' negligence and Unfair Competition claims were also barred by the CDA as each of these claims was also premised on content supplied by third parties.  These claims attacked eBay for giving the sellers of the goods at issue positive ratings concerning their past sales history, and urging purchasers to rely thereon in making their decision to purchase goods from those sellers.  These positive ratings were, however, simply an accurate reporting of customer feed back supplied by third parties concerning their alleged transactions with the sellers.  As such, eBay could not be held liable for the inaccuracy of such positive ratings because to do so would be to hold eBay liable for content originated by third parties, which is barred by the CDA.

No. 07-956-PHX-FJM (D.Az. October 10, 2007)

Court dismisses defamation claims advanced against defendant, operator of the website ripoffreport.com, arising out of defendants’ publication of statements authored by a third party that were critical of plaintiffs.  The Court held such claims barred by application of the Communications Decency Act (“CDA”), 47 U.S.C. Section 230.  Notably, the court refused to issue plaintiff relief notwithstanding the fact that the author of the statements at issue allegedly requested without success that defendants remove them from ripoffreport.com.

The Court also declined to enforce a preliminary injunction issued on default by a Canadian court, directing defendants to remove the statements at issue from their website, on the ground that United States courts will not enforce injunctions issued by foreign courts.

318 F.3d 465, No. 01-1120 (3rd Cir., January 16, 2003)

Affirming the decision of the court below, the Third Circuit holds that the Communications Decency Act ("CDA") immunizes America Online ("AOL") from claims arising out of the transmission by unrelated third parties in an AOL chat room of (i) a "punter program", which disrupts the operation of the recipient's computer, and (ii) defamatory messages concerning the plaintiff.  The Third Circuit further holds that AOL's allegedly negligent failure to prevent such events from occurring did not breach its Member Agreement, in which it expressly disclaimed liability for the transmissions of others.

2007 WL 1300065 (Cal. Crt. App., 2d Dist., My 4, 2007)

Granting defendant’s motion pursuant to California’s anti-SLAPP statute, Cal. Code Civ. Pro. Section 425.16, the court affirms the dismissal of plaintiff GTX Global Corp.’s (“GTX”) complaint, and awards defendant Andrew Left (“Left”) attorneys fees expended both in defending this suit and plaintiff’s appeal from the decision of the court below.  SLAPP is an acronym that stands for “Strategic Lawsuits Against Public Participation.”  GTX had sued Left, who runs the stocklemon.com website, for publishing statements critical of GTX.  GTX charged that these statements were defamatory, and asserted claims of trade libel, interference with prospective economic advantage, and securities fraud against Left arising out of their publication.

The court found that Left’s statements were subject to the protections afforded by the anti-SLAPP statutes, because they addressed matter of public interest.  Finding that GTX had failed to submit any evidence that defendant’s challenged statements were false or defamatory, the court accordingly dismissed the suit.

135 F.Supp.2d 409, 00 Civ. 549 (S.D.N.Y., March 19, 2001)

Court holds that neither the Communications Decency Act or the First Amendment immunize an Internet hosting company from potential liability under the Lanham Act for hosting the website of a third party which allegedly infringed plaintiff's trademark. As a result, the court denied defendant Mindspring's motion to dismiss, and allowed Gucci to proceed with its claim that, by hosting a third parties' site containing allegedly infringing materials, despite notice of the same, Mindspring was guilty of direct or contributory trademark infringement and false designation of origin in violation of the Lanham Act, as well as violations of state trademark and unfair competition statutes.

No. 06-07-00123-CV (Texas Crt. of Appeals, December 12, 2007)

Following the decision of the Delaware Supreme Court in John Doe No. 1 v. Cahill, the Texas Court of Appeals holds that to obtain the identity of an anonymous individual who allegedly posted defamatory statements online, a plaintiff must submit evidence of the validity of his defamation claim sufficient to survive a motion for summary judgment.  This, held the Court, requires the plaintiff to submit sufficient evidence of each element of his claim that is within his control – he is not required, however, before discovery of the speaker’s identity, to demonstrate that the speaker acted with ‘actual malice’, if such is an element of the defamation claim at issue.

Because the trial court directed the disclosure of the anonymous speaker’s identity without first requiring such a showing, the Court of Appeals conditionally granted the defendant’s application for a writ of mandamus, and remanded the case for further consideration in light of the Court’s opinion.

The Court further held that the Cable Communications Policy Act, 47 U.S.C.A. Section 551(2)(B), does not provide an independent basis for obtaining such disclosure.  While the statute does apply to requests in civil actions brought by private parties seeking to pursue defamation claims, the Court held it only permitted such disclosure pursuant to a properly issued ‘court order.’  This, in Texas, required submission of evidence sufficient to establish a prima facie case, as stated above.

Case No. MS-07-6236-EJL-MHW (D. Idaho, November, 16, 2007)

Magistrate Judge grants in part and denies in part a motion to quash a subpoena issued pursuant to the Digital Millennium Copyright Act (“DMCA”).  The Magistrate Judge denied so much of the motion to quash which sought to prevent disclosure of the identity of the anonymous individual who posted a copy of a letter sent by a lawyer, for which the lawyer had obtained copyright registration, demanding the removal of other anonymous posts from a blog. 

The Court recommended granting so much of the motion to quash which sought to prevent disclosure of the identity of the anonymous individual who made the allegedly offensive posts that counsel sought to have removed in the demand letter in question.

193 Wis. 2d 429, 535 N.W. 2d 11 (Wis. Ct. App. 1995)

No. 05 C3459 (N.D. Ill., October 27, 2005)

Illinois federal court holds that it lacks personal jurisdiction over corporate and individual defendants residing in California in a defamation action arising out of defendants' publication of a newspaper article that allegedly defamed Illinois resident "Bo" Jackson.  The article was published both in a local California newspaper and on the newspaper's website.  The Court based its determination on the fact that the article was not aimed at Illinois, because it reported on a speech given in California, and because only one of the subscribers to the print and electronic versions of defendants' local California newspaper was a resident of Illinois.

Case No. C 06-2057 JF (RS) (N.D. Ca., March 16, 2007)

Court dismisses action seeking redress as a result of Google’s alleged downward manipulation of the “Page Rank” it assigned plaintiff’s website.  This act allegedly reduced the ranking of plaintiff Kinderstart.com’s search engine in various Google Search results which, in turn, adversely impacted both the traffic and advertising revenue plaintiff Kinderstart.com’s site generated.  “Page Rank” is a system offered by Google for rating the usefulness of websites.  Google’s search engine utilizes the relative “Page Ranks” it assigns to websites in determining the order in which to deliver responsive search results to a user’s query. 

In its Second Amended Complaint, plaintiff claimed such acts constituted violations of the Sherman Antitrust Act, the Lanham Act and California Business and Professions Code Section 17200, as well as plaintiff’s right to free speech under both the Federal and California constitutions.  Plaintiff Kinderstart.com also alleged that it was defamed by Google’s alleged statement that the low “Page Rank” it assigned plaintiff’s site was arrived at objectively, without human manipulation.

The Court found that Kinderstart.com had failed to state a claim, and accordingly dismissed its complaint with prejudice.

Civil Act. No. SA-07-CA-353-XR (W.D. Texas, November 5, 2007)

Federal Court sitting in Texas holds that it can exercise personal jurisdiction over a non-resident defendant arising out of posts made on the internet site thealamofilm.com which allegedly defamed and injured plaintiff, a Texas resident.

Civ. Act. No. 1:00-CV-434-TWT (N.D. Ga. November 6, 2000)

Court holds that plaintiff's act of conducting an unauthorized port scan and throughput test of defendant's servers does not constitute a violation of either the Georgia Computer Systems Protection Act or the Computer Fraud and Abuse Act. The court further holds that various derogatory statements the parties made about each other do not support actions for defamation, tortious interference with contractual relations, or commercial defamation under the Lanham Act.

378 F.3d 1002 (9th Cir., 2004), cert. denied (2005)

Applying the "initial interest confusion" doctrine, the Ninth Circuit holds that defendant Nissan Computer's display of advertisements promoting the sale of automobiles on its Nissan.com website infringes the trademark held by plaintiff Nissan Motors in its federally registered "Nissan" trademark, and accordingly affirms the District Court's decision enjoining defendants from continuing such activity. 

The Court further holds, however, that Nissan Computer's display of links on its site to a web site operated by a company owned by Uzi Nissan, the owner of Nissan Computer, which web site purports to describe the instant litigation and contains disparaging remarks about Nissan Motors, is non-commercial speech that neither infringes plaintiffs' mark nor runs afoul of the Federal Trademark Dilution Act despite its potentially negative impact on plaintiffs' commercial activities.  The Ninth Circuit holds such speech protected by operation of the First Amendment, and accordingly reverses so much of the District Court's decision that enjoined defendant Nissan Computer from placing such links on its Nissan.com site. 

Finally the Court held that issues of fact prevented a determination at this time as to whether defendants' use of plaintiffs' Nissan mark violated the FTDA.  To establish such a dilution claim, held the Court, the plaintiff must establish that its mark was famous when defendant first commenced a potentially diluting use thereof.  Disagreeing with the court below, the Ninth Circuit held that such use commenced when defendant began to call its business 'Nissan Computer,' and not when it subsequently registered the Nissan.com domain name for use in that business.  As there was an issue of fact as to whether the Nissan mark was famous as of 1991, when Nissan Computer commenced its operations, the court denied plaintiffs' motion for summary judgment, and remanded the question of defendants' violation of the Federal Trademark Dilution Act to the District Court.

No. 01-35648 (9th Cir., October 7, 2002).

Applying the ‘effects test,’ the Ninth Circuit holds that Washington courts can exercise personal jurisdiction over defendant Healthgrades.com, a Delaware corporation with its principal place of business in Colorado, in a defamation action arising out of allegedly defamatory statements found on defendant’s website that caused injury to plaintiff in Washington.  The statements at issue consisted of ratings of home health care providers, including plaintiff, which provides such services in Washington.

309 F.Supp.2d 446, Civ. 02-5164 (DRH) (WDW) (E.D.N.Y., Mar. 25, 2004)

Court holds that plaintiff, by clicking an "I accept" icon agreeing online to be bound by the Terms of Service governing use of an online discussion group set forth in a scrollable window, viewable ten lines at a time, was bound by the forum selection contained therein.  Finding such a clause enforceable, the Court dismissed a claim brought by plaintiff asserting that defendant Google breached this agreement, because this claim was not brought in the designated forum.

The Court also held that Section 230 of the Communications Decency Act ("CDA") immunized an ISP hosting an online discussion group from claims that its failure to remove objectionable content posted on the discussion group's web page gave rise to claims of tortious interference with contractual relations. 

Finally, the Court denied the motions of two additional defendants to dismiss the claims asserted against them for want of personal jurisdiction.  The Court held that the first defendant was subject to specific jurisdiction in New York because of its operation of a commercial website via which it sold $6000 of products a year to New York residents.  The second defendant was similarly subject to suit because he had entered into a contract with a New York company, which contract allegedly gave rise to the claims asserted against him.

Civil Act. No. 3:07CV-330-H (W.D. Ken., November 7, 2007)

Kentucky District Court holds that it lacks personal jurisdiction over an English resident in a defamation action brought against her by a Kentucky corporation arising out of defendant’s posting of allegedly defamatory statements on an website, and transmission of allegedly defamatory emails from England to recipients in England and Illinois.

 

Civ. No. 04-CV-3918 (E.D. Pa., March 10, 2006), affirmed -- F.3d – (3rd Cir., July 10, 2007).

District Court dismisses claims charging Google with direct copyright infringement as a result both of its archiving Usenet postings that contain excerpts of plaintiff’s copyrighted works, and its display of excerpts of plaintiff’s copyrighted website in search results.  The District Court holds that Google has not engaged in the requisite volitional conduct necessary to be held guilty of direct copyright infringement because such copying is a by-product of the automated operation of Google’s search engine and related technologies.  As such, Google’s acts are akin to a user’s use of its ISP to transmit infringing material to a third party, which do not give rise to direct infringement claims against the ISP.  On appeal, the Third Circuit affirmed the dismissal of Parker’s direct infringement claims, on the grounds that Google’s archiving of infringing Usenet postings lacked the requisite “volitional conduct.”

Relying on Field v. Google, (D. Nevada 2006), the District Court also dismisses direct copyright infringement claims arising out of Google’s presentation to users of “archival” copies of plaintiff’s website in search results denominated “cache.”  The District Court holds that Section 512(b) of the Digital Millennium Copyright Act (“DMCA”), applicable to copyright infringement claims arising out of “system caching,” bars such claims here.

The District Court also dismissed vicarious and contributory copyright infringement claims arising out of Google’s archiving of Usenet posts created by third parties that themselves allegedly infringe plaintiff’s copyright, both because Google lacks the requisite knowledge of such inadequately identified infringing activity, and because it does not derive sufficient direct financial benefit therefrom.  This decision too was affirmed by the Third Circuit on appeal.

The District Court further dismissed defamation, invasion of privacy and negligence claims advanced by plaintiff arising both out of Google’s archiving of Usenet posts authored by third parties that allegedly defamed plaintiff, as well as out of Google’s storage and display in its “cache” of a website that purportedly defamed plaintiff.  Such claims are barred by the immunity afforded Google by Section 230 of the Communications Decency Act (“CDA”), a decision affirmed on appeal.

Finally, the District Court dismissed Lanham Act claims brought against Google as a result of its alleged republication of a website operated by a third party titled “the Official Roy Gordon FAQ.”  The District Court held that the third party was not violating the Lanham Act both because it was not using a mark in commerce as it was not selling anything on its site, and because consumers were not likely to be confused as to the origin of the site, given the criticism of plaintiff found thereon.  The Lanham Act claims against Google also failed because it was not a “moving force” or “active participant” in the creation of this site, or the alleged use thereon of plaintiff’s ‘mark.’  The Third Circuit affirmed the dismissal of the Lanham Act claims because of the absence of a likelihood of consumer confusion.  The Court also affirmed the dismissal of plaintiff’s trade disparagement claims because the statements at issue on the third party website were not made in the context of commercial advertising.

It should be noted that the plaintiff appeared pro se.  In addition, the Third Circuit’s opinion was denoted “Not Precedential.”

163 F. Supp. 2d 1069 (D.S.D., September 27, 2001)

Court holds that Section 230 of the Communications Decency Act ("CDA") bars plaintiffs from pursuing claims against Kinko's arising out of allegedly defamatory statements an unaffiliated third party made in an Internet chat room from a computer rented to him by Kinko's.  The CDA prevented plaintiffs from pursuing claims that Kinko's aided and abetted both the third party's defamation of, and interference with plaintiffs' prospective business relationships by making the offending statements, as well as claims that Kinko's negligently failed to keep appropriate records of the use of its rented computers, and destroyed evidence of the same.

2005 N.Y. Misc. Lexis 1155 (Sup. Ct. N.Y. Co., May 27, 2005)

Pursuant to New York Civil Practice Law and Rules ("CPLR") Section 3102(c), the New York Supreme Court granted petitioner Catherine Bolton ("Bolton") pre-action discovery and directed the Internet Service Provider Road Runner to produce documents that would identify the sender of an anonymous e-mail petitioner Bolton claimed defamed her.  The Court granted such relief because petitioner had made the showing necessary for discovery under CPLR §3102 by demonstrating both that she had a meritorious cause of action against the e-mail's author, and that such discovery was necessary to her prosecution of that claim.  The latter requirement was met by petitioner's need to identify the party who allegedly wronged her. 

In reaching this result, the Court rejected the e-mail author's defense that "his" anonymity was protected by the First Amendment.  Applying the five factor test enunciated by the Court in Sony Music Entertainment v. Does 1-40, 326 F. Supp. 2d 556 (S.D.N.Y. 2004) the Court held that petitioner had made the showing necessary to overcome any protections afforded the e-mail's author by the First Amendment.

Index No. 117595/05 (Sup. Ct. N.Y. Co., July 5, 2006)

Court holds that the 'single publication' rule applies to allegedly defamatory statements posted about plaintiff on a subscription web site accessible only by the site's members.  As those statements were posted over one year prior to the commencement of plaintiff's action charging defendant with defamation as a result of their publication, the Court held such claims barred by the applicable statute of limitations, and dismissed plaintiff's suit.

Case No. 46791-3-I, 31 P.3d 37 (Wash. Ct. App., September 17, 2001)

Court holds that Section 230 of the Communications Decency Act ("CDA") immunizes Amazon.com from claims of breach of contract, negligent misrepresentation and tortious interference brought by plaintiff as a result of negative statements posted by third parties on Amazon.com's web site, and Amazon's failure to remove them in alleged violation of Amazon's guidelines governing such postings.  Section 230 provides 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 that Amazon satisfied each of the elements necessary for protection under this statute.  First, Amazon was a provider of "interactive computer services" entitled to avail itself of the protections afforded by the statute because it operated a web site on which third parties could post comments, which Amazon made available to others.  Second, the content in question was provided by third parties, and not Amazon, despite Amazon's right to edit or remove the same.  And lastly, Amazon was immunized from the claims in question because each premised Amazon's liability on its failure to remove offending content originated by others, an editorial function for which the statute was intended to provide protection.

30 F.Supp.2d 1292, 1998 U.S. Dist. Lexis 17253 (D. Colo., October 16, 1998)

Court held that defendant who engaged an independent contractor to mount a spam advertising campaign on defendant's behalf could not be held vicariously liable for damages caused when the independent contractor, without defendant's knowledge, inserted a "forged" header in the spam's "From" and "Reply to" fields which header constituted plaintiff's domain name. This act had the predictable effect of causing plaintiff to receive both numerous complaints from recipients of the e-mail, as well as "bounced back" undeliverable e-mail.

The court further held that plaintiff's counsel had no absolute immunity from defamation claims brought by defendant arising out of various statements counsel made about defendant and the lawsuit which were posted to plaintiff's website. While such a privilege does exist for statements made by the attorney "... during the course and as part of a judicial proceeding in which [she] participates as counsel if it has some relationship to the proceeding," it does not extend to statements made concerning the lawsuit to via the Internet to the public at large. The court nonetheless dismissed defendant's counterclaim for libel per se because the allegedly defamatory statements were non-actionable statements of opinion that, in most instances, also failed to be sufficiently plain on their face to be libelous per se.

No. C97-1360WD (W.D. Wash., July 17, 1998)

Court denied motion to enjoin plaintiff from continuing to publish on his website allegedly defamatory statements critical of credit reporting agencies that included what the court characterized as "scurrilous expression of opinion," as well as the home addresses and telephone numbers of criticized individuals. Such a prior restraint on speech, which, though held by the Court to be "offensive" had not at that time been found to be defamatory, was barred by the First Amendment because the speech at issue did not incite or produce lawless actions.

Civ. Act. No. 05-3779 (Sup. Crt. Dist. Columbia, August 16, 2006)

Court quashes subpoena, seeking identity of anonymous informant who falsely informed a trade association that plaintiff Solers, Inc. ("Solers") was infringing the copyrights of association members by using unlicensed software in its business operations.  Plaintiff was not entitled to such discovery because it had failed to state a valid claim for defamation, given its inability to allege facts sufficient to demonstrate it sustained actual injury from the anonymous informant's acts.  Notably, the trade association, the Software Information Industry Association ("SIIA"), had elected not to pursue claims against Solers based on this "tip."

2000 WL 1705637, Civ. No. 305666 (Sup. Ct. Ca., November 7, 2000)

Court holds that Section 230 of the Communications Decency Act ("CDA") renders Ebay immune from a suit charging that the use by third parties of Ebay's web site to sell "bootleg" musical recordings violates Cal. Bus. and Professions Code Section 17200.

1995 N.Y. Misc. Lexis 229, (N.Y. Sup. Ct. Nassau Co., 1995) motion for renewal denied 1995 WL 805178 (Dec. 11, 1995)

(Allegedly defamatory statements were posted by a third party on a bulletin board maintained by the information service provider Prodigy. Court held that with respect to these statements, Prodigy, based on the manner in which it did business in 1993, would be subject to the stricter standards applicable to a publisher of information for defamation purposes rather than those applicable to a distributor. In reaching this conclusion, the court relied on Prodigy's efforts to control the content transmitted over its service.)

Case No. 02 CV 2258 JM (AJB) (S.D. Ca. March 7, 2007)

Court holds that the statute of limitations bars plaintiffs from proceeding with libel claims arising out of allegedly defamatory statements posted on the Internet over one year prior to the commencement of plaintiff’s libel action.  Under the single publication rule, the statute of limitations begins to run from the date the defamatory statement is first posted on the Internet.  As that occurred over one year prior to the commencement of this litigation, the libel claims arising therefrom were dismissed.

In reaching this result, the Court held that posting links on a website to allegedly defamatory statements, or sending such links in an email, does not constitute a republication of the defamatory statements that gives rise to a separate defamation claim, or commence anew the statute of limitations.

The Court held that such a republication may occur when the header information on the webpage containing the allegedly defamatory statement is changed.  Here, however, that did not save plaintiffs’ libel claim from dismissal, because such republication occurred over one year prior to the commencement of this action.

Finally, the Court permitted plaintiffs to proceed with trade libel claims arising out of the publication of the statements at issue.  The Court find that plaintiffs had submitted sufficient evidence that the publication of such statements had caused it injury to survive defendants’ motion for summary judgment.

Case No. 1:04cv510 (S.D. Ohio June 15, 2007)

Court allows plaintiff Taylor Building Corporation of America (“Taylor Building”) to proceed with libel claims arising out of the publication of a gripe site critical of plaintiff’s work by a relative of a disgruntled customer.  The Court denies so much of defendant’s motion for summary judgment which sought to dismiss these claims holding, inter alia, that issues of fact as to whether publication of the statements on this website were sufficiently limited to ‘proper parties’ so that their publication was protected by the qualified privilege applicable to statements made to protect the public interest precluded such an award.

The Court did grant so much of defendant’s motion for summary judgment which sought to dismiss “initial interest confusion” Lanham Act claims plaintiff asserted arising out of defendant’s use on his gripe site of a service mark and trade dress allegedly similar to those of the plaintiff.  The Court held such claims failed because consumers were not likely to be confused as to the source of defendant’s site, or attribute it to the plaintiff, as the site was critical of plaintiff, was found at the domain Taylor Homes – Ripoff.com, and bore a “header” that stated “Taylor Homes Ripoff.  Badly Fingering Your Dreams.  Taylor Sold Us A Quality Home and Gave Us Garbage.”

Finally, the Court dismissed plaintiff’s tortuous interference with contractual and business relations claims.  The Court held that plaintiff had failed to demonstrate that defendant had sufficient knowledge of the actual contracts or relationships allegedly interfered with by the operation of his gripe site to sustain such claims.

Case No. 2:04-cv-47-FtM-34SPC (M.D. Fla., February 15, 2008)

In the latest chapter of this long running dispute, the District Court holds that the Communications Decency Act, 47 USC Section 230, immunizes defendants from defamation claims arising out of the posting on their site – The Rip-Off Report - of allegedly defamatory statements about plaintiff that were allegedly authored by third parties.  In reaching this result, the Court rejected plaintiff’s contention that defendants were sufficiently involved in the creation of the posts at issue to be denied CDA immunity because they offered such third party posters the opportunity to categorize their reports in categories such as ‘con artists’, ‘corrupt companies’ and ‘false TV advertisements.’  The Court further held that plaintiff had failed to submit evidence sufficient to establish that defendants were involved in authoring the particular defamatory statements at issue so as to lose the immunity offered by the CDA.

No. 06-11888 (11th Circuit, August 1, 2006)

Eleventh Circuit holds that plaintiff's defamation claims against operators of consumer complaint sites arising out of the posting on those sites of allegedly defamatory complaints purportedly authored by third parties is sufficient to survive a motion to dismiss predicated on the immunity afforded the operators of interactive computer services under the Communications Decency Act ("CDA").  The complaint alleged that defendants edited consumer complaints to include words such as "ripoff" and "scam", and fabricated others.  The ultimate resolution of defendants' entitlement to immunity for their involvement in the publication of the posts at issue will have to await the trial of this matter.

As a result of this determination, the Eleventh Circuit reversed the decision of the District Court, which had dismissed the action for want of personal jurisdiction.  The lower court's decision was grounded on its determination that no tort was committed by defendants in Florida, due to the application of the CDA.   The Eleventh Circuit rejected this determination, and remanded the matter to the District Court to determine whether the Court could appropriately exercise personal jurisdiction over the defendants consistent with the strictures of the Due Process clause of the United States Constitution.

No. 01-2340 (4th Cir., December 13, 2002)

Reversing the court below, the Fourth Circuit Court of Appeals holds that Virginia's Federal Courts may not exercise personal jurisdiction over two small Connecticut newspapers which published articles on the Internet that allegedly defamed a Virginia resident.  To be able to assert personal jurisdiction over the newspapers, the court held that they must "(1) direct electronic activity into the State, (2) with the manifested intent of engaging in business or other interactions within the State, and (3) that activity creates, in a person within the State, a potential cause of action cognizable in the State's courts."  The mere posting of an article on a website, even one that addressed conditions in Virginia prisons, was not enough to satisfy this burden.  Because the newspapers were small Connecticut-based publications which served almost exclusively Connecticut readers, they would not be subject to jurisdiction in Virginia courts for libel claims arising out of their publication on the articles at issue on the Internet.

958 F. Supp. 1124 (E.D. Va. March 21, 1997)(Ellis, J.) aff'd. 129 F. 3d 327 (4th Cir. Nov. 12, 1997), cert. denied, 524 US 937 (1998)

The CDA preempts a state common law distributor liability cause of action against an interactive computer service provider arising from that provider's allegedy negligent distribution of defamatory material provided via its electronic bulletin board. Under CDA section 230 (c)(i), information service providers are granted imunity from such claims. This immunity is retroactive, and applicable to plaintiff's claim, brought after the enactment of the CDA, even though the events giving rise to his claim were completed before the CDA became effective.

Quick Hits

Alvis Coatings Inc. v. John Does One Through Ten
3:04CV374-H (W.D. N.C., December 2, 2004)

Court denies motion to quash, and compels disclosure of identity of anonymous poster of allegedly disparaging online statements on plaintiff's showing of a prima facie case that the speaker's conduct is unlawful.

Download PDF of Court Decision

Tammy S. Blakey v. Continental Airlines, Inc., et al.,
164 N.J. 38, 751 A.2d 538 (Sup. Ct. N.J., June 1, 2000).

Reversing the courts below, the New Jersey Supreme Court holds that employers have a duty to take effective measures to stop sexual harassment that occurs in an online work-related chat room or bulletin board of which they have notice.  Said the Court:  “[W]e find that if the employer had notice that co-employees were engaged on … a work related forum in a pattern of retaliatory harassment directed at a co-employee, the employer would have a duty to remedy that harassment. … To repeat, employers do not have a duty to monitor private communications of their employees; employers do have a duty to take effective measures to stop co-employee harassment when the employer knows or has reason to know that such harassment is part of a pattern of harassment that is taking place in the workplace and in settings that are related to the workplace.” 

The Supreme Court further held that out-of-state employees who posted allegedly defamatory and harassing messages on an online bulletin board about a non-resident co-employee may be subject to jurisdiction in New Jersey if such posts were intended to dissuade that co-employee from pursing a New Jersey action seeking redress under the New Jersey Law Against Discrimination.

Issues of fact precluded the court from resolving either question in the case at bar, and the Supreme Court accordingly remanded the case to the trial court for further consideration.

This action arose out of various posts made by plaintiff’s co-employees on an online forum made available to such employees for discussion of issues of concern to them.  This forum was provided as an added benefit by Compuserve, which was engaged by Continental to provide its employees access to a company computer system on which work related information, such as employee flight schedules and assignments, were available. 

After plaintiff brought a sex discrimination lawsuit against Continental in Washington, her state of residence, various company employees made posts to this forum critical of plaintiff’s work performance, and her decision and motivation for bringing her lawsuit.  Plaintiff gave notice to Continental of these posts, and her objections to them.  Plaintiff commenced this suit in New Jersey against both the posters and Continental, asserting, inter alia, claims of defamation and sexual harassment/hostile work environment.

The Supreme Court reversed the decisions of the lower courts, which had dismissed the action.  On the record before it, the Court could not determine whether the forum in which the comments were made was “sufficiently integrated with the workplace to require” Continental to police harassing activities that occur therein of which it has notice.  The resolution of this question turned on “whether the Crew Members Forum was sufficiently integrated with Continental’s operations so as to provide a benefit to it.”  It should be noted that the reach of the court’s ruling extended beyond the Continental workplace proper, to “settings that are related to the workplace.” 

Similarly, the Supreme Court held that issues of fact as to the out-of-state employees’ knowledge as to whether plaintiff had commenced a suit in New Jersey precluded a determination as to whether the court could exercise personal jurisdiction.  As stated above, for New Jersey to exercise such jurisdiction, the effects of these employees’ conduct must be felt in New Jersey.  Plaintiff was a Washington resident who had commenced a discrimination suit against Continental in Washington.  If the defendant co-employees sought to dissuade her from prosecuting a New Jersey discrimination suit with their comments, they would be subject to jurisdiction in New Jersey.  However, it was unclear from the record if the defendants knew plaintiff had commenced suit in New Jersey, as opposed to Washington, and accordingly the case was remanded for further consideration.

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Shyron Bynog v. SL Green Realty Corp., et al.
05 Civ. 0305 (WHP) (S.D.N.Y., December 22, 2005)

Court denies defendants’ motion for a preliminary injunction, seeking to enjoin a former employee from publishing allegedly defamatory statements about defendants in a web site, in a blog, in emails sent to defendants’ employees, customers and other business contacts, and in flyers distributed at buildings managed by defendant SL Green Realty Corp.  (“SL Green”).  Plaintiff had commenced the instant action against the defendants, accusing them, inter alia, of discriminatory and retaliatory conduct.  The Court held that defamatory speech can only be enjoined in the Second Circuit if “extraordinary circumstances” exist, which were absent here.  That such statements may injure the plaintiff in his business or property alone do not, held the Court, constitute sufficient grounds for the issuance of an injunction.  The injuries caused by defamatory speech can ordinarily be remedied by an award of monetary damages.  Here, the absence of any viable evidence of injury to defendants, combined with the potential to recover such damages from the plaintiff, led the Court to deny injunctive relief.

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Churchill v State of New Jersey, Commission of Investigation
378 N.J. Super. 471, 876 A. 2d 311 (NJ Super. Ct. App. Div. 2005)

Court holds that single publication rule applies to internet publications.  “[W]e adopt what we consider the majority position and apply the single publication rule to Internet publications.”  As a result, the Court affirms the lower court’s dismissal of plaintiffs’ defamation claim, because it was commenced more than one year after the allegedly defamatory report at issue – a governmental investigative report into the State’s Societies for the Prevention of Cruelty to Animals – was first distributed to various state governmental entities and made available for viewing on a governmental website.

In reaching this result, the Court rejected plaintiffs’ claims that the report was republished – causing the statute of limitations to run anew – by various changes made to the governmental website after the date of the report’s initial publication.  These changes included moving the location of, and adding a link on, the site’s navigation bar to “investigative reports”, which took users to the report at issue, and posting a press release on the website which directly referenced, and invited users to review, the report.   Such changes, “were merely technical changes to the website” that “altered the means by which website visitors could access the report, but … in no way altered the substance or form of the report” and thus, held the Court, did not constitute a republication thereof.  “[T]o treat the changes as republications would be inappropriate and defeat the beneficial purposes of the single publication rule.” 

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Colt v. Freedom Communications Inc.
109 Cal. App. 4th 1551, 1 Cal. Rptr. 3d 245 (Cal. Crt. App., 2003)

Court holds that the under the First Amendment and California Civil Code Section 47(d), a party is permitted to publish a ‘fair and true report’ of legal proceedings without  exposure to defamation claims.  Such a report, explained the Court, can contain factual errors and still retain the privilege afforded by Cal. Civil Code Section 47(d) provided it captures ‘the substance, the gist, the sting of the libelous charge.’  This privilege applies both the newspaper articles and to articles posted on the internet.  Finding that the reports at issue, while containing some factual errors, captured the substance and gist of the legal proceedings on which they reported, the California Court of Appeals affirmed the decision of the lower court, which granted defendant newspapers motion to strike plaintiffs’ complaint – which charged defendants with libel as a result of the publication of the articles at issue - under California’s anti-SLAPP statute.  In this case, the newspaper article at issue reported on a proceeding commenced by the Securities and Exchange Commission.  Said the Court:

[T]he First Amendment and Civil Code section 47 subdivision (d) permitted defendants to publish a ‘fair and true report’ of the legal proceedings.  The question thus becomes whether the newspaper articles and internet postings qualify as being fair and true.  If so, plaintiffs are unable to show a probability of prevailing and we must affirm the dismissal of the action.  As defendants point out, the ‘fair and true report’ requirement does not limit the privilege to statements which contain no errors.  Our Supreme Court recognized that ‘erroneous statement is inevitable in free debate and … must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need … to survive.’  Thus the publication concerning legal proceedings is privileged as long as the substance of the legal proceedings is described accurately.  “Under California law, a newspapers report is ‘fair and true’ if it captures ‘the substance, the gist, the sting of the libelous charge.’  The news article need not track verbatim the underlying proceeding.  Only if the deviation is of such a ‘substantial character’ that it ‘produces a different effect’ on the reader will the privilege be suspended.  New articles, in other words, need only convey the substance of the proceedings on which they report, as measured by their impact on the average reader. 

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ComputerXpress, Inc. v. Lee Jackson, et al.
93 Cal.App.4th 993, 113 Cal.Rptr.2d 625, E027841 (Cal. Court App., 4th District, Nov. 15, 2001).

Court dismisses trade libel and other claims brought by plaintiff ComputerXpress Inc. arising out of defendants’ publication of statements critical of plaintiff, its products, and its management on Internet message boards under California’s SLAPP (“strategic lawsuit against public participation”) statute, Cal. Code of Civil Procedure section 425.16.  This statute obligates a plaintiff that commences a suit arising out of “an act in furtherance of [defendant’s] right of petition or free speech … in connection with a public issue …” to demonstrate a prima facie case before being permitted to proceed with suit.  If the plaintiff fails to meet this burden, his claim will be subject to dismissal on a special motion to strike.  “Acts in furtherance of a person’s right of petition or free speech” under the Statute include “any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.”

The Court held that statements published on Internet message boards such as that at issue – Raging Bull – are statements published in a public forum within the meaning of California’s SLAPP statute.  The Court further held that statements concerning a public company and its business, which may affect numerous investors, are statements in connection with an issue of public interest.  As such, held the Court, the defendants were entitled to the protections of the SLAPP statute.

Finding that ComputerXpress failed to present sufficient evidence to establish a prima facie claim, the Court dismissed so much of its complaint that rested on the Internet postings at issue.  The Court rested its determination, in part, on its conclusion that the challenged statements were non-actionable statements of opinion.  “[W]hile the postings certainly could be considered disparaging, their tone and content identified them as statements of opinion and not fact.  …. [T]hey were hyperbolic, informal, and lacked the characteristics of typical fact-based documents.  Moreover, they were replete with explicit statements of opinion such as “IMO (in my opinion) “what I think is fraud” “I firmly believe” “is that fraud?” and “my guess is.”

The Court did allow plaintiff to proceed with fraud and interference with contractual relations claims arising out of independent acts unconnected with the challenged Internet postings at issue.  These claims arose out of disparaging statements made by defendants to a particular customer of ComputerXpress, as well as out of purported misrepresentations defendants made concerning their own business at a time plaintiff was considering its acquisition.  As to these claims, defendants’ motion to strike was denied.

Finally, the Court held that defendants were entitled to recover under California’s SLAPP statute those attorneys fees they had expended in moving to dismiss the claims on which they prevailed, but not those fees expended in moving to dismiss the remainder of the complaint.  Such an award was rendered pursuant to section 425.16(c) which provides that “a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.”  Said the Court: “Defendants consequently are entitled to recover attorney fees and costs incurred in moving to strike the claims on which they prevailed, but not fees and costs incurred in moving to strike the remaining claims.”

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Emory M. Davis, et al. v. Frank Mitan
Civil Action No. 06-88-C (W.D. Ky., August 14, 2006).

Court holds that adding additional allegedly defamatory material to a preexisting website constituted republication of the website that started anew the running of the statute of limitations for libel claims arising out of the statements contained therein.  The Court accordingly affirmed so much of the lower court’s decision which denied the Davises’ motion to dismiss Frank Mitan’s defamation claim on the ground that it was barred by the applicable one-year statute of limitations, as the instant lawsuit was commenced within one year from such republication.  In reaching this result, the court held that the single publication rule is applicable to internet publications – in this case a website critical of the Mitans.  In its decision the Court cogently stated the applicable rules of both single publication and republication.  Said the Court:

The single publication rule holds that any form of mass communication or aggregate publication – such as the publication of an edition of a book or a periodical, or the broadcast of a single radio or television program – is a single communication and can give rise to only one action for libel.  The rule applies only to those cases where communication is simultaneously available to multiple persons.  Its purposes are to prevent a multiplicity of actions, to protect the defendant from excessive liability based on a single publication run; to allow the plaintiff to recover all of his damages at once; and to reduce the chilling effect that the common law rule might have on the mass communications of ideas.  Under the single publication rule, the statute of limitations runs as soon as the communication enters the stream of commerce. 

An exception to the single publication rule is the doctrine of republication.  Republishing material – including publishing a second edition or a book or periodical, editing and republishing defamatory material, or placing it in a new form – resets the statute of limitations.  This exception provides the plaintiff with a remedy where the defendant edits and retransmits the defamatory material, or distributes the defamatory material for a second time with the goal of reaching a new audience.  The narrow question in this case is whether posting new information to a defamatory website resets the statute of limitations under the republication doctrine.  As the Supreme Court of Kentucky has not spoken on this issue, the court relies on persuasive authority from other jurisdictions.

The mere act of editing a website to add unrelated content does not constitute republication of unrelated defamatory material that is posted on the same website.  Similarly, mere technical changes to a website such as changing the way an item of information is accessed is not republication.  …  In contrast, where substantive material is added to a website, and that material is related to defamatory material that is already posted, a republication has occurred.  To hold otherwise would give a publisher carte blance to continue to publish defamatory material on the Internet after the statute of limitations has run in the first instance.

In this case the Bankruptcy Court found that the new material on the
Davises’ website contained substantive information related to Kenneth, and by reference the Mitan family.  Having found these necessary facts, the Bankruptcy Court correctly analyzed Mitan, Firth and Churchill and held that a republication had occurred which restated the statute of limitations.  As the adversary proceeding was filed within one year of the updates to the Davises’ website it was timely filed.


Finally, the Court remanded the case to the Bankruptcy court to reconsider the scope of the injunctive relief awarded.  The Davises’ website addressed not only Frank Mitan, but other Mitans as well.  The Bankruptcy court enjoined the Davises from further publication of their website in toto – including references both to Frank Mitan, which were found to be defamatory, as well as the other Mitans.  In light of the foregoing, the court remanded the case to the Bankruptcy Court for further consideration of the appropriate scope of relief.

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Anthony DiMeo III v. Tucker Max
No. 06-3171 (3rd Cir., September 19, 2007).

Affirming the decision of the court below, the Third Circuit holds that plaintiff’s claim for defamation, arising out of the posting of derogatory comments authored by third parties about plaintiff on a message board operated by the defendant, were barred by application of the Communications Decency Act, 47 U.S.C. Section 230.

To qualify for the statute’s protections, the defendant must be a “provider or user of an interactive computer service” and the claim must seek to treat him as “the publisher or speaker” of content “provided by another information content provider.”  Such, held the Third Circuit, was the case here.  By making available message boards on his website, Max was a provider of an interactive computer service.  Said the Court: “Max’s website is an interactive computer service because it enables computer access by multiple users to a computer server.”  Similarly, because the complaint did not allege that Max himself was the author of the offending posts at issue, they were content provided by another information content provider.  And finally, by asserting a defamation claim against Max, plaintiff sought to hold him liable as the publisher of this content.  Having made the showing necessary for immunity under Section 230 of the CDA, the Third Circuit affirmed the dismissal of plaintiff’s defamation claim.

The Third Circuit also affirmed the district court’s denial of plaintiff’s motion for leave to amend his complaint to assert claims for intentional infliction of emotional distress, and RICO violations, on the grounds of futility.  The former failed because the CDA afforded Max immunity from such claims, which, like the defamation claims, arose out of the posting by third party of offensive comments on a message board operated by Max.  The later failed as a result of plaintiff’s failure to allege the commission of any of the requisite criminal predicate acts.

It should be noted that the Third Circuit denoted its opinion non-precedential.

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In re Pamela Greenbaum v. Google Inc. d/b/a Blogger and Blogspot.com
Index No. 102063/07 (Sup. Ct. NY Co., October 23, 2007)

Court dismisses pre-action petition to discover identity of anonymous blogger pursuant to CPLR Section 3102(c) on the grounds that the allegedly defamatory statements are non-actionable, inter alia, because they are statements of opinion.  In reaching this result, the Court does not reach the issue of the standard of evidentiary proof a plaintiff must submit of the bona fides of her claim to be entitled to such disclosure.

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Chris Gregerson v. Vilana Financial Inc., et al.
2006 WL 3227762, Civil No. 06-1164 ADM/AJB (D. Minn., Nov. 7, 2006)

Court denies defendants’ motion for a preliminary injunction, which sought to enjoin plaintiff from using defendants’ registered service and trademarks in the meta tags and “subject lines” of his website.  Plaintiff is a photographer who claimed that defendants, without authorization or payment, used a photograph in which he held copyright in an advertisement.  Plaintiff commenced suit against defendants for copyright infringement.  Plaintiff’s website described his view of defendants’ conduct, in a manner which disparaged, and according to defendants, defamed them.  As the site existed at the time of the hearing, it contained a prominent disclaimer, announcing it “is a criticism of” defendants.  Defendants’ counterclaim asserted claims of defamation and trademark infringement, and relied, in part, on the initial interest confusion created by plaintiff’s use of defendants’ marks.

The Court denied defendants’ motion for injunctive relief, holding defendants had not sufficiently established a likelihood of success on the merits.  Said the Court:

In the instant case, Defendants’ motion must be denied because they are unable to establish the first prong of the analysis, likelihood of success on the merits.  ‘A defendant’s use of a trademark in metatags in a descriptive manner can constitute a non-infringing fair use.’

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Klehr Harrison Harvey Branzburg & Ellers, LLP v. JPA Development Inc., et al.
No. 0425, 2006 Phil. Crt. Com. Pl. Lexis 1, (Phil. Crt. Com. Pl., Jan. 4, 2006)

Court affirms denial of motion for a protective order, and orders disclosure of identity of annonymous posters of online statements found to be defamatory per se.  Court declines to follow either Dendrite or Cahill, and instead decides defendants' entitlement to a protective order by application of Pennsylvania Rule of Evidence 4011, which dictates when protective orders can be granted in Pennsylvania.  Under this rule, discovery can be had unless it is sought in bad faith, would cause unreasonable annonyance, embarrassment, oppresion, burden or expense to the deponent or any person or party, or is beyond the permissible scope of discovery, which allows discovery as to any matter relevant to the subject matter of the action.

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Lisa Krinsky v. Doe 6
H030767 (Cal. Crt of App., February 5, 2008)

Reversing the court below, California Court of Appeals grants a motion to quash a subpoena seeking the identity of an anonymous online speaker accused of making defamatory comments.  Court holds that such relief is appropriate because the statements in question are non-actionable.  Court of Appeals further holds that to obtain the identity of such an anonymous speaker, the plaintiff must submit evidence sufficient to establish a prima facie case of defamation.

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New.net, Inc. v. Lavasoft
356 F. Supp. 2d 1071 (C.D.Cal. 2003)

Court denied plaintiff New.net Inc.’s motion for a preliminary injunction, which sought to enjoin defendant Lavasoft from both informing consumers via its Ad-Aware software that NewDotNet, a software program distributed by plaintiff, is installed and running on their computers, and providing consumers with tools that enable them to uninstall that software if they so desire.  Ad-Aware is a popular software program that aids consumers in removing unwanted “spyware.”  Plaintiff charged that by so identifying its software, Lavasoft was mislabeling and disparaging its NewDotNet software by associating it with such unwanted spyware.  As a result, Net.net charged Lavasoft with false advertising, unfair competition, trade libel and tortuous interference with prospective economic advantage. 
The court denied plaintiff’s motion, finding that by informing consumers that NewDotNet was installed and running on their computers, Lavasoft was engaging in speech about a matter of public interest protected by the First Amendment.  As such, the injunction plaintiff sought was an impermissible prior restraint on speech plaintiff claimed was defamatory, before that speech was actually determined to be false.  Said the Court:

For more than thirty years, it has been established that allegations of falsity are insufficient to warrant prior restraint. …  “Equity will not restrain by injunction the threatened publication of a libel, as such, however great the injury to property may be.  This is the universal rule in the United States …”

This prohibition on prior restraint applies to “all causes of action having as their gravamen the alleged injurious falsehood of a statement,” which here included both the Lanham Act and state law claims asserted by the plaintiff.

The court noted that once speech is found to be defamatory and false, a defendant can be enjoined from repeating it.  Said the Court:

The First Amendment offers no protection for false or deceptive commercial speech. …  By contrast, “once a jury has determined that a certain statement is libelous, it is not a prior restraint for the court to enjoin the defendant from repeating that statement.”

New.net generates revenue through the sale of domain names in nonstandard format, such as .free and .shop.  Because the internet does not recognize these domain names, they must be linked to domain names that the internet does recognize for a user to be able to locate them, such as those using traditional extensions such as .com.  According to the court, “without special software, either loaded onto a users computer or incorporate into the software of an internet service provider, an internet user who types a nonstandard domain name in his or her browser will not be able to locate the website.  New.net deals with this problem by providing software “newdotnet” that recognizes the nonstandard extension and connects the user to the web site without requiring the user to know and enter the site’s “true” name.”  According to the court, “New.net is typically introduced onto home computers through ‘bundling’ a process by which an individual who intentionally requests and downloads certain desired software actually gets a bundle of other software the was not sought by the user.”  Often “New.net’s presence is disclosed deep within complicated user agreements that do not allow users to opt out of downloading the bundled conglomeration.”  The court presumed that often, the consumer is unaware that Newdotnet is actually installed on their computers.  Ad-Aware apprises the consumer of the presence of this program, and allows them to remove it if they so choose.

Rocker Management LLC v. John Does 1 Through 20
No. Misc. 03-0033 CRB (N.D. Ca., May 29, 2003).

Court grants motion to quash subpoena seeking identity of anonymous online poster accused of defaming plaintiff, finding that the statements in question are non-actionable.  In reaching this result, the Court held that to obtain such disclosure, the plaintiff must satisfy the requirements set forth by the same court in Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573 (N.D. Cal. 1999).

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Greg Swafford, M.D. v. Memphis Individual Practice Association, et al.
No. 02A01-9612-CV-00311, 1998 WL 281935 (Tenn. Crt. App., June 2, 1998).

Court holds that the single publication rule does not apply to defamation claims arising out of the dissemination of a report critical of plaintiff authored by defendants to three users of an internet database maintained by a third party on three separate occasions.  The report in question reported the defendants’ termination of the plaintiff Doctor, and the purported grounds therefore, to the National Practitioner Data Bank.  Such reporting is required by statute.  The Data Bank is an electronic data base that stores information related to the quality of care of physicians.  The Data Bank may only be accessed by health care entities.  The Court held that the single publication rule is applicable to ‘aggregate publications’ like books and newspapers.  Because the data bank was not such an aggregate publication, the rule did not apply here.  Said the Court:

The facts in this case are analogous to the facts in the above credit report decisions.  Unlike the mass publication of a book, magazine, or television commercial, it is unlikely that more than a handful of individuals or entities would gain access to information stored in the data base.  Unlike Applewhite, the information stored in the Data Bank is not within the domain of the ‘contemporary publishing world.”   In addition, the health care entities in this case, like the entities accessing credit information, requested information from the Data Bank on separate and distinct occasions.  Therefore, there is no ‘aggregate publication’ as contemplated in cases applying the single publication rule.  While the information in the Data Bank may be accessed by several entities, the justification for the single publication rule, a vast multiplicity of lawsuits resulting from a mass publication, is simply not present here.  Under the facts of this case, we hold that the single publication rule is inapplicable.  Therefore, a separate limitations period attaches to each publication.

As a result, the Court held that the applicable statute of limitations did not bar plaintiff’s libel claims arising out of each publication of the critical report from the data bank that occurred within one year of the date the suit was commenced.  This holding was predicated on the fact that the plaintiff learned that the information at issue had been sent to the Data Bank over one year prior to the commencement of this action.  Said the Court:

A separate claim arises out of each publication, and a separate injury occurred with each publication.  For each claim, ‘the statute of limitations begins to run at the time such dissemination takes place. …  The grant of summary judgment to the Defendants must be reversed as to claims arising out of instances in which the Data Bank transmitted information to a potential user within one year prior to the filing of [the Doctor’s] lawsuit.  This holding is predicated on [the Doctor’s] prior knowledge of the existence of the information in the Data Bank.

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The Traditional Cat Association Inc. v. Laura Gilbreath, et al.
118 Cal. App. 4th 392, 13 Cal. Rptr. 3d 353, (Cal. Crt. App., May 6, 2004)

As cogently stated by the Court: "in California, the accrual of causes of action growing out of the publication of defamatory or other tortious statements is governed by the single-publication rule.  Under the rule, one cause of action will arise, and the statute of limitations will commence running, upon the first general publication or broadcast of a tortious statement, notwithstanding how many copies of the publication are distributed or how many people hear or see the broadcast.  Any subsequent republication or rebroadcast gives rise to a new single cause of action.

We find the single-publication rule applies to statements published on Internet web sites.  Because the statements which give rise to plaintiff's cause of action for defamation were posted on a Web site maintained by one of the defendants more than a year before plaintiffs' complaint was filed, the plaintiffs' defamation cause of action is barred by the applicable statute of limitations, Code of Civil Procedure section 340.  Accordingly, the trial court should have granted the defendants' motion to strike the defamation cause of action."

Here, the defendant submitted a declaration that he did not alter the web site on which the statements that gave rise to plaintiffs' defamation claim, which purported to describe a lawsuit between the parties in terms highly critical of plaintiffs, were posted on web, at any time after May 21, 2001.  As the lawsuit was commenced on May 22, 2002, the Court held it time barred by application of the single publication rule, and California's one year statute of limitations on defamation claims. 

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Robert Van Buskirk v. The New York Times, et al.
325 F.3d 87 (2d Cir. 2003)

Following the decision of the New York Court of Appeals in Firth v. New York, 747 N.Y.S.2d 69 (2002), the Second Circuit holds that the single publication rule applies to defamation claims arising out of internet publications.  As explained by the Court: "New York's single publication rule states that a defamation claim accrues at publication, defined as 'the earliest date on which the work was placed on sale or became generally available to the public.'  The rule implements a public policy of avoiding the exposure of publishers to 'a multiplicity of actions, leading to potential harassment and excessive liability, and draining of judicial resources,' as well as 'reducing the possiblity of hardship to plaintiffs by allowing the collection of all damages in one case commenced in a single jurisdiction.'

As a result, because plaintiff's defamation claim against defendant Plaster was commenced more than a year after Plaster's publication on the Internet of the letter out of which it arose, the Second Circuit held it time barred, and affirmed the dismissal of plaintiff's claim against Plaster. 

The balance of the Court's decision addresses plaintiff's libel claim agaiinst the New York Times, which published a revised version of Plaster's letter as an op-ed piece.  While we will not discuss this aspect of the court's decision here, the Second Circuit affirmed the dismissal of this claim as well, holding the statements in the article at issue were not susceptible to the defamatory meanings alleged in the complaint. 

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