Lawyer Attempts End Run Around CDA 230, Finds a Stronger Defense Than He Expected

Following on the heels of a Virginia lawyer being sanctioned for improperly using a subpoena to silence a critic, we hear about a lawyer in California who is threatening to use a meritless lawsuit to force Julia Forte, who runs a forum for consumer complaints about telemarketers, to remove user-submitted comments that are critical of his client.

Paul Alan Levy at the Public Citizen Litigation Group, which represents Forte, has the story:

In a recent series of demands, a purveyor of “nutraceuticals” called threatened to sue Julia Forte over consumer criticisms appearing on her web site, a forum for identification and discussion of telemarketers based on their phone numbers.  (The specific dispute is summarized here)  My Nutrition Store’s expressed concern was that the comments about it show up in Google searches.

When Forte replied by citing her protection under the Communications Decency Act, 47 U.S.C. § 230,  which generally immunizes hosts of discussion sites against suit based on what consumers say on their sites, mynutritionstore’s lawyer, Thomas Georgianna, of the law firm of Horwitz & Cron, had what he no doubt thought was an ingenious response – if he couldn’t sue on the merits, he could sue the anonymous commenters, join the web host as a “necessary party,” seek a preliminary injunction, and thus force the web host to spend money on lawyers, driving up its costs.   He apparently hoped that the threat of such expenses would drive Forte to comply with his demands.

Not surprising, Paul can't sit idly by while a lawyer, however creative, attempts to circumvent the protections in -- and policies behind -- section 230 of the Communications Decency Act (CDA 230), which clearly immunizes Forte from liability for the comments of her users.  In a response letter to's lawyer Thomas Georgianna, which he published on Public Citizen's Consumer Law & Policy Blog, Paul warns that bringing Forte into the suit for the purpose of running up her costs, even though she cannot be held liable, would constitute an abuse of process and likely result in an award of fees under the California anti-SLAPP statute.

I am not sure what Georgianna and his client thought was going to happen when they devised their strategy to scrub the Internet clean of comments critical of, but I highly doubt they expected a three-page response laying out the substantial financial risks they were likely to face if they acted on their legal threat.

As important as CDA 230 is, however, these types of threats highlight that the statute's protections are effective only to the extent site operators and their lawyers know about them.  The fact of the matter is that most website operators don't have the knowledge or the resources to stand up to lawyers who threaten litigation if they don't comply with a demand to take material down.

When a lawyer who should know better threatens to make it expensive for a website operator to extricate itself from a lawsuit in which it has no liability in the first place, it undermines not just CDA 230, but our legal system generally.

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