Chris Grotke and Lise LePage, co-founders and owners of iBrattleboro.com, a widely acclaimed citizen journalism site based in Brattleboro, Vermont, were sued on November 16 for libel based on a comment submitted by one of the site's users. The lawsuit, brought by Effie Mayhew, alleges that David Dunn, the former executive director of Rescue Inc., an emergency medical services organization where Mayhew works as a volunteer, libeled her in a comment on the site.
According to the Brattleboro Reformer, which reported on the lawsuit yesterday:
The suit pertains to a Sept. 30 comment posted to the site by Dunn, who was responding both to a previous anonymous critique of his leadership style and a column Mayhew wrote in the Reformer. In the comment, Dunn accused Mayhew of conducting an adulterous affair on Rescue premises and said that others who had signed a petition requesting his resignation had engaged in similar behavior.
The complaint doesn't appear to make any allegations that Grotke or LePage authored the allegedly defamatory statements, only that they failed to edit or remove the comment. As a result, Grotke and LePage are almost certainly shielded from liability under section 230 of the Communications Decency Act ("CDA 230").
This is not even a close question. Under CDA 230, "[n]o 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." This immunity preempts state law causes of action, like defamation claims, that are based on "publisher" liability. Moreover, immunity exists even if a defendant edits comments (so long as the edits do not materially change the meaning of the statement) or otherwise exercises discretion in selecting which comments to post or remove.
Oddly, the Brattleboro Reformer seems to imply that this is an open question and quotes Mayhew's lawyer, Margot Stone:
[A]ccording to Stone, ibrattleboro must follow the same rules as any publication, and its owners are responsible for the site's contents. "They should have edited it out or e-mailed (Dunn) and said 'we can't publish it as it stands,'" Stone said. "I think their defense will be that they don't read prior to publishing, but I'm not sure that will be enough to avoid some degree of liability."
This is simply wrong as a matter of law. Courts and commentators widely agree that CDA 230 protects website operators and bloggers from liability based on the defamatory statements of commenters.
In a short statement posted on iBrattleboro Tuesday evening, Grotke and LePage wrote:
Chris and I found out a couple weeks ago that an employee of Rescue Inc. is suing iBrattleboro.com over comments made by then Rescue Inc. Director David Dunn on the site. We would like to say more about this, but circumstances force us to be circumspect for the time being.
What we can say is that we believe the suit to be without merit and will be taking appropriate legal action. Attorney Jim Maxwell of Brattleboro is helping with our case.
Thanks, all, for your support recently and over the last four years. We look forward to telling you more as soon as we're legally able.
We will be following this litigation closely and should have a copy of the complaint and a full description of the lawsuit in our database in the next day or so.
UPDATE 2: Grotke and LePage filed a motion for judgment on the pleadings, which we discuss in a subsequent post.