Section 230

Section 230 of the Communications Decency Act.

Getting Dirty to Protect Crowdsourced Data and Public Information

Yesterday, the Digital Media Law Project joined an all-star cast of organizations (including the American Civil Liberties Union, the ACLU of Kentucky, the Electronic Frontier Foundation, the Center for Democracy & Technology, the Public Participat

Subject Area: 

Jurisdiction: 

Backpage.com v. Hoffman, et al.

Date: 

06/26/2013

Threat Type: 

Legislation

Party Receiving Legal Threat: 

Backpage.com, Internet Archive

Type of Party: 

Government

Type of Party: 

Intermediary

Court Type: 

Federal

Court Name: 

United States District Court for the District of New Jersey

Case Number: 

2:13-CV-03952

Legal Counsel: 

For Backpage.com: Bruce S. Rosen (McCusker, Anselmi, Rosen & Carvelli, PC). For Internet Archive: Frank L. Corrado (Barry, Corrado, Grassi, &Gibson, PC)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Injunction Issued

Description: 

On May 6, 2013, New Jersey Governor Chris Christie signed P.L. 2013, c.51 § 12 (Bill A3352) into law, which was to be codified as N.J.S.A. § 2C:13-1O and take effect July 1, 2013. The New Jersey law would criminalize "advertising commercial sexual abuse of a minor," which a person commits if he "knowingly publishes, disseminates, or displays, or causes directly or indirectly, to be published, disseminated, or displayed, any advertisement for a commercial sex act, which is to take place in this State and which includes the depiction of a minor" or "knowingly purchases advertising in this State for a commercial sex act which includes the depiction of a minor." The bill requires a minimum fine of $25,000 for a person convicted of this crime.

On June 26, 2013, Backpage.com, a classified advertising website with a section for adult ads, filed suit in the federal district court of the District of New Jersey against New Jersey Attorney General John Hoffman and prosecutors from each of the state's 21 counties. In the complaint, Backpage.com -- pursuant to 42 U.S.C. § 1983 -- sought a temporary restraining order to enjoin the enforcement of the law, asserting that it violated Section 230 of the Communications Decency Act, the First Amendment, the Fourteenth Amendment, and the Commerce Clause.

Specifically, Backpage.com asserted that:

  • Bill A3352 was preempted by and violated Section 230 of the Communications Decency Act, under which Backpage.com was considered an "interactive computer service."
  • The bill was unconstitutional under the First Amendment because it was a content-based restriction that was overbroad and vague.
  • The bill was also invalid under the First and Fourteenth Amendments because "it purport[ed] to impose strict criminal liability on online service providers such as Backpage.com and others for third-party content, in the absence of proof of scienter, particularly concerning knowledge of the age of any individual depicted in such content."
  • The bill violated the Commerce Clause because it attempted to regulate commercial transactions that took place wholly outside of New Jersey. 

In the complaint, Backpage.com sought declaratory judgment, preliminary and permanent injunctions against enforcing the law, and attorney's fees.

On June 28, 2013, Hoffman, on behalf of himself and the other defendants, filed a response to the demand for a temporary restraining or that argued Backpage.com's claims could not satisfy the necessary elements for granting such an order. The defendants claimed that the New Jersey provision did not conflict with Section 230, allowing the two to coexist. They argued that because the challenged statute prohibits the advertisement of an illegal transaction -- commercial sex acts with minors -- it was categorically excluded from First Amendment protection. Further, they claimed that the provision was not overbroad because it did not broadly prohibit references to sex, but rather was directed solely at offers to engage in an illegal transaction. The response stated that the public interest in protecting children was "overwhelmingly" in favor of allowing the statute to become effective.

On June 28, 2013, after a hearing on the motion, the court granted a temporary restraining order against the enforcement of the law, stating that the plaintiff had satisfied the necessary elements. On July 8, the court ordered that a similar action, filed on June 26 by Internet Archive against the same defendants, would be consolidated with this case. 

An oral argument is scheduled for August 9, 2013.

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Subject Area: 

"Dirty" Verdict Sets Up Section 230 Appeal

A federal jury's verdict awarding $338,000 to former Cincinnati Bengals cheerleader and high school teacher Sarah Jones over postings on thedirty.com website may lead to a re-examination of the scope of the law that web site operators have widely invoked<

Subject Area: 

Jurisdiction: 

Backpage.com v. Cooper, et al.

Date: 

05/21/2012

Threat Type: 

Legislation

Party Receiving Legal Threat: 

Backpage.com

Type of Party: 

Government

Type of Party: 

Intermediary

Court Type: 

Federal

Court Name: 

United States District Court for the Middle District of Tennessee: Nashville Division

Case Number: 

3:12-cv-654

Legal Counsel: 

Ambika K. Doran, Eric M. Stahl, James C. Grant (Davis Wright Tremaine LLP); Craig L. Meredith, Lucian T. Pera, Tricia T. Olson (Adams and Reese LLP (Nashville))

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Injunction Issued

Description: 

On May 21, 2012, Tennessee State Governor Bill Haslam signed Public Chapter 1075 ("SB 2371") into law. Tennessee's SB 2371 defined the felony offense of advertising "commercial sexual abuse of a minor" which a person commits if he or she "knowingly sells or offers to sell an advertisement that would appear to a reasonable person to be for the purpose of engaging in what would be a commercial sex act of a minor." The law prohibited a defense of ignorance of the minor's age. A violation of SB 2371 could result in up to 15 years in prison and a minimum fine of $10,000.  SB 2371 was scheduled to take effect on July 1, 2012.

Backpage.com is a classified advertisements website with one section of its website dedicated to adult services. In 2010, Tennessee State Attorneys General sent a letter to Backpage.com demanding that the website remove its "adult services" section. Backpage.com did not comply with this initial demand. In 2011, the National Association of Attorneys General ("NAAG") publically released a second demand letter to Backpage.com. This second letter again demanded removal of Backpage.com's adult section; it also requested detailed information from Backpage.com in "lieu of a subpoena." 

On June 27, 2012, Backpage.com brought suit in the U.S. District Court for the Eastern District of Tennessee against Tennessee State Attorney General Robert E. Cooper, Jr., and each of the state's 31 district attorneys to prevent enforcement of SB 2371. In its initial complaint, Backpage.com argued that the law violates the Communications Decency Act of 1996, 47 U.S.C. § 230, the First and Fourteenth Amendments, and the Commerce Clause of the United States Constitution. Backpage.com contended that SB 2371 violated § 230 as it would treat Backpage.com as the publisher of information which was provided by another content provider. In its First and Fourteenth Amendment argument, Backpage.com argued that SB 2371 was unconstitutional under the as it is overly broad in its restriction of free speech. In its Commerce Clause argument, Backpage.com argued that SB 2371 places an undue burden on interstate commerce.

The same day, on June 27, 2012, Backpage.com filed a Motion for Temporary Restraining Order and Preliminary Injunction to prevent enforcement of SB 2371. The Motion contended that SB 2371 would affect millions of online providers and would violate the immunity 47 U.S.C. § 230 granted to online publishers against third-party content.

On July 26, 2012, Cooper and the other defendants filed a response in opposition to Backpage.com's Motion for Preliminary Injunction. Defendants argued that SB 2371 was not preempted under 47 U.S.C. § 230 because it does not apply exclusively to internet usage, while § 230 applies only to internet communications. Further, defendants argued that SB 2371 did not prohibit the posting of advertisements "that would appear to a reasonable person to be for the purpose of engaging in a commercial sex act with a minor" but, instead, criminalized only the selling or offering for sale of such advertisements. The key difference, they argued, is that SB 2371 permits the posting of such advertisements so long as Backpage.com does not charge money or offer to charge money in exchange for posting them. In addressing the First and Fourteenth Amendment argument, the response argued that the advertisements were unlawful and therefore not considered protected speech; they also argued that the law was not overly broad or unconstitutionally vague. In its Commerce Clause argument, defendants argued that illegitimate commerce -- such as the money made from the illegal advertisements -- is not protected. 

On August 29, 2012, the court held a hearing on Backpage.com's motion, and on January 3, 2013, the court granted Backpage.com's Motion and issued a Temporary Restraining Order enjoining enforcement of SB 2371. United States District Court Judge John T. Nixon stated that Backpage.com was likely to succeed on all of its claims as SB 2371 was likely preempted by 47 U.S.C. § 230 and that it likely violated the First and Fourteenth Amendment, and the Commerce Clause of the Constitution.

On March 27, 2013, the court granted a motion by Backpage.com to convert the temporary injunction into a permanent injunction; Cooper and the other defendants did not oppose the motion. The court further found that no disputed factual issues remained and that summary judgment for Backpage.com was proper. United States District Court Judge John T. Nixon reiterated that Backpage.com was likely to succeed on the merits of its claims because: (1) SB 2371 was likely preempted by 47 U.S.C. § 230; (2) SB 2371 likely violated the First and Fourteenth Amendment because it was vague, overly broad, and not narrowly tailored; and (3) SB 2371 likely violated the Commerce Clause.

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Jurisdiction: 

DMLP UPDATE: The DMLP Asks the Sixth Circuit to Safeguard Crowdsourced Research and Data-based Journalism

The Digital Media Law Project (formerly the Citizen Media Law Project), assisted by Harvard Law School’s Cyberlaw Clinic, has asked the Sixth Circuit to make clear that website operators that aggregate citizen reports and rely on that data to draw conclusions cannot be liable for defamation based on those conclusions.

Jurisdiction: 

Subject Area: 

Content Type: 

Directory Assistants, Inc. v. SuperMedia, LLC

Date: 

08/26/2011

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

SuperMedia, LLC, Alejandro Caro, Steven Sapaugh, Scott Duffy

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Eastern District of Virginia

Case Number: 

2:11-cv-480

Legal Counsel: 

Robert W. McFarland, Erin Q. Ashcroft (McGuireWoods LLP)

Publication Medium: 

Email
Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

On August 26, 2011, Directory Assistants, Inc., a Connecticut-based advertising consulting agency, filed a complaint in the U.S. District Court for the Eastern District of Virginia against advertising company SuperMedia, LLC, and three of its employees. The claims, which sound in defamation and tortious interference with business expectations, arose out of SuperMedia's alleged compilation and distribution of hyperlinks to material online that was defamatory of Directory Assistants.

The complaint alleges that defendant Caro compiled a list of links to material on various websites about Directory Assistants, including damaging statements on the websites Ripoff Report and Scam Informer, and then forwarded these links by e-mail to defendant Sapaugh. Sapaugh, in turn, was alleged to have forwarded the list internally at SuperMedia by-email along with the following comments:

Teams- we heard about these guys, they've been here before and all they do is hurt the client.
we do anything the client wants and we don't charge for it- we sell on value, not fear!
once the client signs with DA, DA collects for 2 or 3 years on the
savings.
don't let this happen, so review and be aware
Steve

Defendant Duffy was alleged to have received this list from Sapaugh and to have forwarded it to a potential customer of Directory Assistants; Directory Assistants also generally claimed that SuperMedia continued to forward these links to other potential customers.

The defendants moved to dismiss the complaint for lack of jurisdiction and for failure to state a claim. With respect to jurisdiction, SuperMedia argued in its memorandum in support of the motion that Directory Assistants was invoking the diversity jurisdiction of the federal courts, but had failed to plead sufficient facts to establish diversity because SuperMedia was a limited liability company. As such, SuperMedia claimed that Directory Assistants would need to allege the residency of each of its members rather than the location of SuperMedia.

Substantively, the defendants argued that Directory Assistants' claims were barred by 47 U.S.C. § 230, because as "users of an interactive computer service" (i.e., RipOff Report and Scam Informer) they could not be held liable for publishing links to information posted by other users of those websites.

Alternatively, the defendants argued with respect to the plaintiff's defamation claim that: (1) Caro's alleged e-mail to Sapaugh and Sapaugh's alleged distribution of Caro's list within SuperMedia would not constitute "publication" of defamatory material under Virginia law, because it was a privileged distribution within a corporate entity to those having a duty and interest in the subject matter; (2) the distribution of hyperlinks is neither a defamatory "statement" for defamation purposes nor the "publication" of such a statement; (3) the underlying statements on the linked websites were statements of opinion; and (4) the complaint failed to allege knowledge of falsity or negligence on the part of the defendants.

With respect to the tortious interference claim, the defendants argued that Directory Assistants had failed to plead: (1) that defendants interfered with a business expectancy through improper means, because of the insufficiency of the plaintiff's defamation claim; (2) that plaintiff had a valid business expectancy in its relationship with any particular potential customer; or (3) that defendants knew of such an expectancy, if one did exist.

Directory Assistants opposed the motion to dismiss, arguing first that it would be inappropriate to resolve the defendants' Section 230 defense on a motion to dismiss, because discovery might establish that the websites at issue were not "interactive computer services" or that Caro obtained the information he shared from some other third party. In either case, the plaintiff argued, Caro would not be a "user of an interactive computer service" entitled to the protection of Section 230. Directory Assistants also argued that its claims were not limited to material on the linked websites, and that there was evidence of other communications between SuperMedia and Directory Assistants' potential customers whose content Directory Assistants should be allowed to investigate through discovery.

With respect to the sufficiency of its defamation claim under Virginia law, Directory Assistants argued that another court (the U.S. Bankruptcy Court for the Southern District of Texas) had found publication of a defamatory statement through distribution of an e-mail with links to false material, and that (as discussed above) the defamation claim was not limited to the linked material. The plaintiff further argued that ruling on SuperMedia's assertion of a qualified privilege for intra-corporate distribution of material was premature, because the privilege is an affirmative defense under Virginia law and could be overcome by a showing of malice on the part of the distributor. Directory Assistants responded to the defendants' argument that the statements at issue were opinions by claiming that they gave rise to inferences of defamatory fact, and by asserting that it was likely that there had been other communications by SuperMedia to customers of which the plaintiff was not currently aware. Finally, Directory Assistants argued that the facts which it pleaded were sufficient to support an inference of actual malice or negligence.

On its interference claim, Directory Assistants argued that (1) its allegations of defamation sufficed as an allegation of interference by improper means, (2) it was sufficient to allege a "business expectation" that the individual contacted by defendant Duffy was identified as a "prospective customer," and (3) the knowledge requirement of the claim was satisfied by alleging that SuperMedia was aware that Directory Assistants did business in Virginia.

The defendants filed a reply brief, in which (among other issues) they argued that allowing Directory Assistants the opportunity to take discovery on the Section 230 issue would be inappropriate where the plaintiff's allegations were insufficient, and cited other courts that had granted motions to dismiss where a Section 230 defense was established on the face of the complaint. The defendants also distinguished the case authority cited by Directory Assistants for the principle that forwarding links could be actionable, on the basis that the earlier decision had not considered the effect of Section 230. Other cases citing Section 230, the defendants claimed, reached the opposite result.

The district court granted the defendants' motion to dismiss on May 30, 2012. Finding that Section 230 "protects users equally as it does providers," the court held that "a user of an interactive computer service who finds and forwards via e-mail that content posted online in an interactive computer service by others is immune from liability." The court further held that the websites to which the SuperMedia e-mails provided links were "interactive computer services," and that the defendants "were users in that they put RipOffReport and other websites into action or service, and availed themselves of and utilized these websites by compiling their posts by copying links to commentary posted on them."

As such, the court held that it "unfortunately" was required to dismiss Directory Assistants' claims, while noting that Section 230's protections are "clearly subject to tremendous abuse," and stating its "serious misgivings about [the Fourth] Circuit's broad interpretation of § 230 immunity." The court did not reach the parties' other arguments, finding that the plaintiff's failure to overcome Section 230 rendered the other issues moot.

Subject Area: 

Jurisdiction: 

Seaton v. TripAdvisor, LLC

Date: 

10/11/2011

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

TripAdvisor LLC

Type of Party: 

Individual

Type of Party: 

Media Company

Court Type: 

Federal
State

Court Name: 

Circuit Court for Sevier County, Tennessee (state); U.S. District Court for the Eastern District of Tennessee (federal)

Case Number: 

2011-0676-I (state); 3:11-cv-00549 (federal district court); 12-6122 (federal appellate court)

Legal Counsel: 

S. Russell Headrick, Meghan H. Morgan (Baker, Donelson, Bearman, Caldwell & Berkowitz); James Rosenfeld, Samuel Bayard (Davis, Wright, Tremaine LLP)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

In January 2011, TripAdvisor, operator of the travel review website http://www.tripadvisor.com, published a list entitled "Dirtiest Hotels, as reported by travelers on TripAdvisor," which purported to be a list of the dirtiest hotels in the United States. Grand Resort Hotel and Convention Center in Pigeon Forge, Tennessee, topped the list. The feature included a user-provided picture of a ripped bedspread and a quote from a user report - "There was dirt at least ½" thick in the bathtub which was filled with lots of dark hair." It also noted that "87% of reviewers do not recommend this hotel."

In an accompanying press release, titled "TripAdvisor Lifts the Lid on America's Dirtiest Hotels: Top 10 U.S. Grime-Scenes Revealed, According to Traveler Cleanliness Ratings," TripAdvisor wrote, "true to its promise to share the whole truth about hotels to help travelers plan their trips, TripAdvisor names and shames the nation's most hair-raising hotels." The press release also contained the slogan "world's most trusted travel advice." The press release also stated, "If you are looking for a hotel with chewing tobacco spit oozing down the halls and corridors; spiders actively making webs in every corner of your room; carpeting so greasy and dirty you wouldn't want to sit your luggage down - let alone walk around barefoot ..... by all means stay at the Grand Resort."

The list and the accompanying press release stated that the list was based on traveler ratings for cleanliness posted on the site. According company policy, available on its website, while TripAdvisor "dedicate[s] significant time and resources" to detecting fraud, and screens reviews to ensure they meet posting guidelines, it does not verify or fact check reviews.

On Oct. 11, 2011, after TripAdvisor produced a list naming his hotel the dirtiest hotel in America, Kenneth M. Seaton sued the travel site for defamation and false light in Tennessee state court, asking for five million dollars in compensatory damages and five million dollars in punitive damages and demanding a jury trial.

In his complaint, the plaintiff alleged that TripAdvisor had defamed his business with "unsubstantiated rumors and grossly distorted ratings and misleading statements," and that TripAdvisor used a rating system that is "flawed and inconsistent" and "overstates the level of trust that can be placed in" TripAdvisor's review of the hotel.

TripAdvisor removed the case to the U.S. District Court for the Eastern District of Tennessee and filed a motion to dismiss for failure to state a claim on Jan. 6, 2012. Seaton filed a response to the motion on March 31, 2012. TripAdvisor filed a reply brief on May 14, 2012.

On August 22, 2012, the court granted the motion to dismiss. The court treated the plaintiff's complaint as raising claims for defamation and false light, but disposed of the claims together, focusing its discussion on the defamation claim. It did not address the parties' arguments under the Communications Decency Act.

According to the court, the central question the case presented was whether a reasonable person could understand the language in question as an assertion of fact or as a mere hyperbolic opinion or rhetorical exaggeration. It cited to Milkovich v. Lorain Journal Co. for the proposition that "expressions of ‘opinion' may often imply an assertion of objective fact," and therefore "can give rise to a defamation claim when they imply an assertion of fact or when the opinion is based upon erroneous information." 497 U.S. 1, 18 (1990).

However, the court ultimately concluded that TripAdvisor's "Dirtiest Hotels" list is "clearly unverifiable rhetorical hyperbole," and that a reasonable person "would not confuse a ranking system, which uses consumer reviews as its litmus, for an objective assertion of fact."

According to the court, a reasonable person could not believe that TripAdvisor's list and press release reflected anything more than "the opinions of TripAdvisor's millions of online users, and the article was therefore not ... a statement of opinion that it intended readers to believe was based on facts."

Finally, the court noted that TripAdvisor's method of compiling the list based on unverified online user reviews "is a poor evaluative metric," but held that, "it is not a system sufficiently erroneous so as to be labeled ‘defamatory' under the legal meaning of the term."

On September 21, 2012, Seaton filed a notice of appeal in the U.S. Court of Appeals for the Sixth Circuit.

Update:

On January 4, 2013, Seaton filed his brief before the Sixth Circuit. Seaton argued that the stated reliability and accuracy of TripAdvisor's list made the statements objectively verifiable, and thus capable of being found to be actionable defamation. Seaton further argued that TripAdvisor used a flawed methodology to reach its conclusion, and that Section 230 did not shield TripAdvisor against liability because the alleged defamation comes from statements made by TripAdvisor directly.

On February 20, 2013, TripAdvisor filed its appellee brief urging affirmance of the district court's opinion. TripAdvisor argued that a top-10 list is inherently subjective, as it necessarily includes editorial judgments, and therefore cannot be objectively verified. TripAdvisor further noted that its own list was based on sliding-scale rankings by its users, which also include inherently subjective considerations.

On February 27, 2013, the Digital Media Law Project (DMLP, the operator of this website) filed a brief as an amicus curiae. The DMLP argued that TripAdvisor's statements were protected under Tennessee law and the First Amendment as an opinion based on disclosed facts. The DMLP also argued that finding liability for TripAdvisor could jeopardize the many crowdsourced research efforts conducted in both journalism and academia.

Oral argument before the Sixth Circuit was held on July 30, 2013, and on August 28, 2013, the Court of Appeals issued a decision affirming the district court's dismissal of the case and its denial of leave to amend the complaint. The Sixth Circuit ruled that TripAdvisor's description of the Grand Resort as the "dirtiest" hotel was rhetorical hyperbole, and could not be read as "an actual assertion of fact."

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Jurisdiction: 

Subject Area: 

Does Washington State's SB 6251 Require Online Classified Sites to Monitor All Third-Party Content?

The trafficking of children for sex in the United States is an appalling and very real problem, which a new Washington state law means to eliminate by targeting websites that offer classified advertising for escort services. But many fear the law poses a serious threat to free speech on the Internet by imposing upon online service providers the burdensome duty to monitor, vet, and otherwise censor third-party content.

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Jurisdiction: 

Sixth Circuit's 'Dirty' Decision Sends a Chill

Let's start with the following premise: thedirty.com is a tasteless website. In addition to a bit of celebrity gossip and paparazzi-type pictures, the site also invites anyone to post pictures – often revealing, embarrassing, or insulting – of others for comment by users and, sometimes, the site's proprietor.

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The IRS and User-Generated Content

As we have reported previously, the Digital (nee Citizen) Media Law Project has been following a trend in delays at the Internal Revenue Service relating to Section 501(c)(3) tax exemptions for nonprofit journalism organizations.

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Jurisdiction: 

M.A. v. Village Voice Media, LLC

Threat Type: 

Lawsuit

Date: 

09/16/2010

Party Receiving Legal Threat: 

Village Voice Medial Holdings, LLC, d/b/a/ backpage.com

Type of Party: 

Individual

Type of Party: 

Media Company

Court Type: 

Federal

Court Name: 

U.S. District Court, Eastern District of Missouri

Case Number: 

10-cv-01740

Legal Counsel: 

Thompson Coburn, LLP

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

On September 16, 2010, M.A., a minor, filed suit against Village Voice Media for content posted on Backpage.com, a website that allows users to post classified ads targeted to specific geographic areas. M.A.'s claims were based on the Child Abuse Victim's Rights Act (CAVRA), 18 U.S.C. § 2251 et seq., regarding the sexual exploitation of children. The complaint alleged that M.A. was a victim of sex trafficking by an adult who had already plead guilty to criminal activity involving M.A. M.A. claimed that Village Voice Media had posted advertisements, including explicit photographs of M.A., that Village Voice Media knew involved sex trafficking of minors. Based on these allegations, M.A. claimed that Village Voice Media victimized her in violation of CAVRA.

M.A. also asserted that immunity for internet service providers under 47 U.S.C. § 230 (CDA 230) should not apply to Village Voice Media, because CDA 230  specifically states that the immunity shall not impair enforcement of laws against the sexual exploitation of children under Title 18 of the U.S. Code.

In response, Village Voice Media filed a motion to dismiss for failure to state a claim. In its memorandum in support of the motion, Village Voice Media argued that Backpage.com satisfies all the requirements for immunity under CDA 230, because it is a provider of an interactive computer service, and the ads in question were posted by third parties.

Village Voice Media relied on Doe v. Bates, 2006 WL 3813758 (E.D. Tex. Dec. 27, 2006), to argue that the criminal provisions of CAVRA did not apply to the CDA 230 analysis. In Bates, the court held that Congress's intent in passing CDA 230 was "not to allow private litigants to bring civil claims based on their own beliefs that a service provider's actions violated criminal law." 

M.A. subsequently filed an amended complaint, claiming that Village Voice Media had knowledge that illegal acts were being conducted on its website but allowed the activities to continue regardless. M.A. alleged that Village Voice Media had responded to subpoenas regarding the trafficking on minors on Backpage.com on five previous occasions. This, according to M.A., constituted aiding and abetting crimes against a child under CAVRA. Therefore, M.A. argued, CDA 230 immunity should not apply.

Village Voice Media again filed a motion to dismiss for failure to state a claim in response to the amended complaint. The memorandum in support of the motion offered the same arguments in support of CDA 230 immunity as the previous motion to dismiss. Village Voice Media additionally asserted that because M.A. was asserting a civil claim, not a criminal prosecution, the exception to immunity M.A. alleged did not apply. M.A.'s response to the motion, and Village Voice Media's reply, argued issues of law significantly similar to their previous positions.

On August 15, 2011, the court ruled in favor of Village Voice Media, finding immunity under CDA 230. The court conducted a detailed review of case law regarding CDA 230 immunity, holding that Backpage.com fit under the statute's immunity provisions. The court then addressed M.A.'s claim that CDA 230 does not apply because it has no effect on criminal laws, and followed the holding in Bates, based on the fact that the content of the posts was provided by a third party.

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Subject Area: 

CMLP Notes: 

LC author, 3/23/12

Jurisdiction: 

Threat Source: 

Court Filings

Ratingz, Inc. v. Adrian Philip Thomas, P.A.

Threat Type: 

Lawsuit

Date: 

02/22/2012

Party Receiving Legal Threat: 

Ratingz, Inc.

Type of Party: 

Organization

Type of Party: 

Organization

Court Type: 

Federal

Court Name: 

U.S. District Court, Northern District of California

Case Number: 

5:12-cv-00868-HRL

Legal Counsel: 

Kurt Opsahl & Matthew Zimmerman, Electronic Frontier Foundation

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Settled (total)

Description: 

On February 22, 2012, Ratingz, Inc., operator of LawyerRatingz.com, a user-review site for reviewing attorneys, filed a declaratory judgment action in federal court in California.

According to Ratingz's complaint and the attached exhibits, the background to the declaratory judgment filing is as follows: On December 9, 2011, the managing partner of Florida law firm Adrian Philip Thomas, P.A. emailed Ratingz concerning a number of negative reviews of the firm on LawyerRatingz.com. That email requested the name of Ratingz's agent in Florida, so that Adrian Thomas could serve Ratingz with a complaint over the reviews.

On February 2, 2012, an attorney representing Adrian Thomas sent a cease and desist to Ratingz, stating that Ratingz had until the next day to remove all of Adrian Thomas's ratings from the site. This letter contended that neither CDA § 230 nor California's Anti-SLAPP law protected Ratingz.

On February 10, 2012, Adrian Thomas sent another letter to Ratingz. Along with this letter, the law firm sent a copy of the complaint Adrian Thomas was planning to file against Ratingz in Florida state court. The letter described some business the firm had lost because of poor reviews on LawyerRatingz.com, and also stated that the firm was planning to file a defamation lawsuit against the person who wrote one of the reviews. The closing of the letter stated that litigation was a "business decision," and that it would be more "cost effective" for Ratingz to remove Adrian Thomas from the reviews site than it would be to "stand on principle . . . regardless of whether you believe you will prevail."

The attached Draft Complaint against Ratingz detailed one of the reviews at issue, and described the unsuccessful steps Adrian Thomas had taken to get the review removed. This Draft Complaint would have sought an injunction to remove Adrian Thomas from LawyerReviewz.com during the litigation, and alleged one count of tortious interference with a business relationship.

In response to the threatened Florida litigation, Ratingz filed its declaratory judgment action in California. Its complaint contains four causes of action under the Declaratory Judgment Act, based on CDA § 230, the First Amendment, Florida tortious-interference law, and Florida's statute of limitation.

As of February 28, 2012, the case has been assigned to a magistrate judge. 

Update:

On April 9, 2012, Ratingz filed a notice of voluntary dismissal with prejudice. 

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CMLP Notes: 

3/1/2012: JS created

Jurisdiction: 

Subject Area: 

Ascentive v. Opinion Corp.

Date: 

09/24/2010

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Opinion Corp. d/b/a PissedConsumer.com, Michael Podolsky, Joanna Simpson, Alex Syrov

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

U.S. District Court, Eastern District of New York

Case Number: 

10-cv-04433

Legal Counsel: 

Goetz Fitzpatrick PLLC

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Pending

Disposition: 

Injunction Denied

Description: 

Ascentive, LLC, a software company, filed suit against Opinion Corp. d/b/a PissedConsumer.com on September 24, 2010, claiming that Opinion Corp., through its PissedConsumer website, infringed on Ascentive trademarks. The complaint alleges seven claims for relief against Opinion Corp.:

  • The first and second claims allege that Opinion Corp. violated the Civil Racketeer Influenced and Corrupt Organizations (RICO) Act, 18 U.S.C. 1961-1968, by conspiring to extort and solicit money from organizations that are the victims of complaints on the PissedConsumer website.
  • The third and fourth claims allege that Opinion Corp. violated the Lanham Act and Ascentive's common law trademark rights, respectively, by using Ascentive trademarks in web addresses such as Ascentive.PissedConsumer.com and FinallyFast.PissedConsumer.com.
  • The fifth through seventh claims allege that Opinion Corp. participated in unfair trade practices through its PissedConsumer website, resulting in interference with contractual relations and unjust enrichment.

In its answer, Opinion Corp. asserted that Ascentive's claims were barred by 47 U.S.C. § 230 (CDA 230). CDA 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." It also provides that "No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." For more information on CDA 230, see the corresponding CMLP Legal Guide entry.

Ascentive filed a Motion for Preliminary Injunction on November 23, 2010, attempting to enjoin PissedConsumer from using Ascentive's trademarks in the site's metadata and as subdomains. In its Memorandum in Support of the Motion for Preliminary Injunction, Ascentive maintained that PissedConsumer holds itself out to be objective, but manipulates postings on its site and uses those to attempt to extort money from the victims of these complaints, in violation of RICO. Regarding the alleged trademark infringement, Ascentive argued that PissedConsumer has used Ascentive's trademarks in the site's metadata, causing PissedConsumer sites to appear prominently in Internet search results. According to Ascentive, this creates "initial interest" confusion in violation of the Lanham Act. Ascentive additionally claimed that its trademarks were used in subdomain names and as prominent text on the PissedConsumer sites, which further leads to consumer confusion resulting in trademark infringement.

In its Opposition Memorandum, Opinion Corp. claimed that Ascentive's request for a preliminary injunction was essentially a request for prior restraint on speech that is protected by the First Amendment and therefore invalid. Opinion Corp. argued that its use of Ascentive trademarks constituted expression protected by the First Amendment. Finally, Opinion Corp. argued that the content posted on its sites should be protected under CDA 230. It contended that "sites such as PissedConsumer.com fall squarely within the protection of the statute, which applies to all state law claims, however styled, so long as the act complained of is the publication of third party content."

After a hearing on Ascentive's Motion, and at the request of the presiding judge, Opinion Corp. submitted a bench brief discussing the application of fair use doctrine under the Lanham Act claim in this case. Opinion Corp. asserted that use of a trademark is protected when it is "fair[] and in good faith only to describe the goods and services of [the complaining] party." In this case, Opinion Corp. argued, PissedConsumer used the Ascentive marks in good faith as a means of cataloging sites, which constituted fair use.

Ascentive filed a reply letter arguing that a free speech defense is unavailable to sites creating confusion through a domain name. It also asserted that PissedConsumer is not protected by CDA 230, which provides no immunity for intellectual property claim or for content created by PissedConsumer, which include the self-created subdomains.

On December 13, 2011, in a rather lengthy opinion, the court rejected Ascentive's motion for preliminary injunction. The court ruled that there was no likelihood of confusion in PissedConsumer's use of Ascentive's trademarks, finding that "no reasonable visitor" to the various PissedConsumer sites would assume they are affiliated with Ascentive (or any other company), because the use of "pissed" in the domain name connotes criticism and negativity. Regarding use of the marks in metadata, the court found this did not create a likelihood of confusion, because PissedConsumer and Ascentive do not compete with each other, and because search engines generally do not use metadata to determine results. Finally, the court held that PissedConsumer is likely to fall within the protections of CDA 230 regarding the plaintiff's state law claims (unfair trade practices and consumer protection).

The court stated that this decision was without prejudice to Ascentive's opportunity to seek a permanent injunction after discovery has been completed.

Content Type: 

Jurisdiction: 

Subject Area: 

Jones v. Dirty World, LLC

Date: 

12/23/2009

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Dirty World Entertainment Recordings, LLC; Hooman Karamian; Dirty World, LLC; Dirty World Entertainment, LLC

Type of Party: 

Individual

Type of Party: 

Media Company

Court Type: 

Federal

Court Name: 

U.S. District Court, Eastern District of Kentucky

Case Number: 

2:09-cv-00219-WOB

Verdict or Settlement Amount: 

$338,000.00

Legal Counsel: 

Alexander C. Ward and Alexis B. Mattingly (Huddleston Bolen LLP) and David Gingras (Gingras Law Office, PLLC) (for defendants Hooman Karamian and Dirty World, LLC)

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Disposition: 

Lawsuit Filed

Description: 

On December 23, 2009, a Jane Doe filed a lawsuit in federal court. The plaintiff intended to sue TheDirty.com, alleging that a number of posts on the blog (self-described as a "reality blogger . . . all about gossip and satire") defamed her.

According to court documents, TheDirty operates through user-submitted posts. Readers of the site submit posts, and TheDirty's editor, Nik Richie, selects some of the submissions for publication on the site. Richie also adds one or two sentences of comment to each post.

The contested posts made a number of crude comments about the sexual affairs of the plaintiff, a Cincinnati Bengals cheerleader and schoolteacher. The posts made claims about the plaintiff's promiscuity, among other topics.

The complaint alleged that the posts made a number of false statements about plaintiff's sexual history, and included four counts: defamation, libel per se, false light, and intentional infliction of emotional distress. The plaintiff later filed an amended complaint, more specifically alleging the purported identity of the website's operator, and adding a second libel per se count (bringing the total to five).

Instead of suing the Arizona-based company that operated TheDirty.com, however, the plaintiff named a California company which operated a website called TheDirt.com. According to news reports, this led to a failure to serve the intended defendants. With the served defendant making no response, the plaintiff eventually moved for a default judgment, which was granted by the district court. The default judgment included an $11 million damage award, $10 million of which was punitive.

When the operator of TheDirty.com announced publicly that it had nothing to do with TheDirt.com, the plaintiff moved for leave to file a second amended complaint seeking to add the Arizona operator of TheDirty.com.  The plaintiff did not voluntarily vacate the $11 million judgment; instead, she indicated that she did not trust TheDirty.com's operator when it disclaimed a relationship with TheDirt.com, but wanted to be sure that all of the appropriate parties were named. The amended complaint included the same five counts as the first amended complaint.

Now identified and served, TheDirty moved to dismiss and made two arguments: that jurisdiction in Kentucky was lacking, and the CDA § 230 protected TheDirty. Since the plaintiff only alleged that TheDirty "published" the disputed material, as opposed to "creating" it, TheDirty argued that § 230's protections applied.

The plaintiff, in response, made a number of § 230 arguments. First, she argued that, by adding comments to the user-submitted posts, the operator of TheDirty became a "creator" of the content. Second, she argued that TheDirty was designed to "encourage" users to post defamatory material. Third, she argued that because TheDirty claimed ownership of user-submitted material, the site and its operators become "publishers."

After TheDirty submitted a reply, the court denied the motion to dismiss. The judge focused mainly on the jurisdiction questions, and only briefly discussed § 230, ruling that discovery was required before the § 230 question could be resolved. Shortly thereafter, TheDirty answered the second amended complaint.

Seven months later, TheDirty moved for summary judgment. The motion focused on two arguments: (1) that the disputed posts were submitted by users of the site, and (2) the comments that Richie added to the user-submitted posts were non-actionable opinion. At this point in the litigation, the plaintiff's real name appeared in the case caption.

The plaintiff responded, arguing that because Richie read each user-submitted post before approving it for publication on TheDirty, and because TheDirty encouraged "the development of defamatory material," § 230's protections did not apply. TheDirty then filed another reply, responding in detail to the idea that TheDirty "created" the posts at issue. TheDirty argued that § 230 caselaw was well-established, and that performing editorial/moderation functions did not suffice to make TheDirty the "creator" of the posts.

On January 10, 2012, the district court judge denied TheDirty's motion for summary judgment. The judge based his § 230 ruling on two cases: Fair Housing Council of San Fernando Valley v. Roommates.com, and Federal Trade Commission v. Accusearch. Taken together, according to the judge, these cases stood for the proposition that if a website "specifically encourage[s] development of what is offensive about the content" of the disputed post, § 230 provides no protection. The judge ruled that TheDirty's name and management style, combined with Richie's added comments to the post, meant that TheDirty encouraged the offensive content.

Updates:

05/09/12: The U.S. Court of Appeals for the Sixth Circuit granted Jones's motion to dismiss the TheDirty's interlocutory appeal of the district court's denial of their summary judgment motion. The Court of Appeals held that the denial of a motion to dismiss is not a final order, and that there were not sufficient interests at stake to hear TheDirty's appeal prior to final adjudication.

01/25/13: The first trial of the matter ends in a hung jury after two days of deliberation; the district court judge declared a mistrial.

07/11/13: After retrial, a jury awarded Jones $338,000 in damages.

08/12/13: The trial court denied the defendants' motion for judgment as a matter of law, again rejecting the application of Section 230 to the facts of the case. Based upon the legislative intent of Section 230 to encourage voluntary censorship of offensive content, the court held that the protection of the statute does not extend to intermediaries who actively encourage the posting of offensive material: "[T]he Act's text indicates that it was intended only to provide protection for site owners who allow postings by third parties without screening them and those who remove offensive content."

Content Type: 

Subject Area: 

CMLP Notes: 

1/12/2012: Pulling it together; will be done first thing tomorrow (JS)

1/13: Ready for review (JS)

1/13: JH editing

Jurisdiction: 

Threat Source: 

Blog Post

Fraley v. Facebook

Date: 

03/18/2011

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Facebook, Inc.

Type of Party: 

Individual

Type of Party: 

Large Organization

Court Type: 

Federal

Court Name: 

U.S. District Court, Northern District of California (removed from California Superior Court, Santa Clara County)

Case Number: 

5:11-cv-01726-LHK (subsequently 3:11-cv-01726-RS, after reassignment)

Legal Counsel: 

Cooley LLP (Michael G. Rhodes, Matthew D. Brown, Jeffrey M. Gutin)

Publication Medium: 

Social Network

Relevant Documents: 

Status: 

Pending

Description: 

On March 18, 2011, five plaintiffs (including two minors) sued Facebook in California state court. The plaintiffs claimed to represent the class of people injured by Facebook's introduction of a "Sponsored Story" system, through which Facebook turns certain types of user behavior (such as "liking" a company) into paid advertisements that include the user's name and/or picture.

The first amended complaint alleged three causes of action: (1) Facebook violated California's right of publicity statute, which protects against misappropriation of a person's identity for monetary gain; (2) the Sponsored Stories, being unlawful, fraudulent, and unfair, violated California's unfair competition law; and (3) Facebook's actions constituted unjust enrichment.

After Facebook removed to federal court, the plaintiffs filed a second amended complaint (which alleged the same three causes of action). Facebook then moved to dismiss, arguing that: (1) the plaintiffs lacked standing because they had failed to allege any actual monetary/commercial injury (because their names/likenesses lacked commercial value); (2) CDA § 230 protected Facebook because the Sponsored Stories constituted mere "editorial functions"; (3) Facebook's actions fell within the right of publicity law's exception for "newsworthy" content; (4) the unfair competition claims failed because Facebook does not charge its users; and (5) California does not recognize an unjust enrichment claim.

After the parties exchanged memoranda on the motion to dismiss, on December 16 the judge ruled in favor of the plaintiffs, with the exception of dismissing the unjust enrichment claim.

The court (Koh, J.) first rejected Facebook's standing and § 230 arguments. With respect to the standing issue, the court found that alleging a violation of the California statute constituted a concrete and particularized injury. The court rejected Facebook's § 230 claim because (according to the complaint) Facebook creates, at least in part, the Sponsored Stories, and such actions go above and beyond mere editorial functions.

With respect to the right of publicity claim, Facebook argued that the Sponsored Stories were "newsworthy" within the meaning of the statute because users are "public figures to their friends." The court disagreed, holding that the newsworthiness exemption does not apply to "commercial rather than journalistic" uses. The court went on to state, however, that the fact that users might be "celebrities to their friends" was sufficient to establish that the users had commercially exploitable names and likenesses protected under the statute. The court also ruled for the plaintiffs with respect to Facebook's argument that the plaintiffs consented to the Sponsored Stories by agreement to Facebook's terms of service, and ruled that Facebook's profiting from the Sponsored Stories sufficed to show actual damages (at least at the motion to dismiss stage).

The court rejected Facebook's challenge to the unfair competition claim, but dismissed the unjust enrichment claim, holding that unjust enrichment is not an independent cause of action in California but only a remedy or measure of damages on another claim. Thus, the main thrust of the plaintiffs' complaint remained: both the right of publicity and the unfair competition claims survived, while the independent unjust enrichment claim was dismissed.

Updates:

1/9/2012: Facebook answers the plaintiffs' second amended complaint.

3/16/2012: Facebook files a motion to consider relating a second civil action arising out of allegedly similar facts, E.K.D. v. Facebook, Inc. (a.k.a. C.M.D. v. Facebook, Inc.), No. 12-cv-01216. The second case involved, inter alia, allegations that Facebook was using the names and likenesses of minors who were incapable of giving consent under California law. The plaintiffs opposed the motion, raising concerns about delaying proceedings in Fraley. On March 21, 2012, Judge Koh allowed the motion and related the second case, directing that it to be assigned to her, but refused to consolidate the second case with Fraley because of the delays that would result.

3/29/2012: The plaintiffs file a motion to certify the class, which Facebook opposes. This motion is not acted upon by the Court for another four months (see entry below for 8/1/2012).

6/12/2012: The plaintiffs file a motion for preliminary approval of a class action settlement reached with Facebook and certify the class for settlement. (Only a redacted version of this document was originally available; an unredacted version was made available to the public on September 4, 2012.)  Among other things, the proposed settlement would require Facebook (1) to provide expanded notice to its users that they consent to use of their names and likenesses in Sponsored Stories advertisements, and requiring additional provisions obtaining consent from the parents or legal guardians of users under 18, (2) to pay up to $10,300,000 in attorneys' fees and costs, and (3) to distribute $10,000,000 to cy pres recipients nominated by the parties.  The proposed cy pres recipients include the Joan Ganz Cooney Center, the Center for Democracy and Technology, the Electronic Frontier Foundation, the MacArthur Foundation, the Campaign for Commercial-Free Childhood, the Consumers Federation of America, Consumers Union, the Berkeley Center for Law and Technology, the Center for Internet and Society at Stanford Law School, the Information Law Institute, the High Tech Law Institute, the Berkman Center for Internet and Society, the Consumer Privacy Rights Fund, Connect Safely, and Wired Safety.  [Disclosure: the Citizen Media Law Project is a project of, and hosted at, the Berkman Center for Internet & Society.]

6/22/2012: The plaintiffs in the related action move to intervene and to oppose the proposed class action settlement with Facebook, arguing that specific issues in the second case relating to the use of the names and likenesses of minors made it inappropriate to certify the plaintiffs in the related case as part of the settlement class. Both the plaintiffs in Fraley and Facebook opposed the motion to intervene, and the plaintiffs in the related case filed a reply brief.

7/3/2012: An individual claiming to be part of the settlement class files a pro se motion requesting that the Court add certain charities to the cy pres settlement.

7/11/2012: The Center for Public Interest Law and the Children's Advocacy Institute file an amicus curiae brief in opposition to the proposed settlement, arguing that the proposal does not protect minors in California in accordance with California law, and that the stipulated attorneys fees are excessive in light of the fact that the members of the class would receive no compensation.

On the same date, Judge Koh recused herself from the Fraley case without specific explanation. In a separate order, she clarified that she would nevertheless retain the related case,  C.M.D. v. Facebook, Inc., No. 12-cv-01216. The Fraley case is subsequently assigned to U.S. District Judge Richard Seeborg.

7/25/2012: The Court (Seeborg, J.) denies the motion of the plaintiffs in the related action to intervene as moot, stating that their motion to intervene itself raised the objections that they wished to raise, but granting them the right to argue in opposition to preliminary approval of the class settlement at a hearing scheduled for August 2, 2012. The Court also noted that, as putative members of the class in Fraley, they would also have standing to submit written objections and appear at a hearing on final approval if preliminary approval were granted.

8/1/2012: The Court issues an order on several pending matters, including: (1) denying without prejudice the plaintiffs' 3/29/2012 motion to certify the class, in order to take it off the court's calendar while settlement is pending; and (2) denying the 7/3/2012 motion to expand the list of proposed cy pres recipients.

On the same date, Facebook filed a brief in response to the 7/11/2012 amicus brief from the Center for Public Interest Law and the Children's Advocacy Institute.

8/2/2012: The Court holds a hearing on preliminary approval of the class action settlement, which is taken under advisement.

On the same date, the Electronic Privacy Information Center, the Center for Digital Democracy, Consumer Watchdog, the Privacy Rights Clearinghouse, and a group of privacy-oriented parties file letters with the Court opposing the settlement as insufficient and/or seeking to add additional privacy-oriented organizations to the list of cy pres recipients.

8/17/2012: The Court denies the motion for preliminary approval of the class action settlement, without prejudice, stating that there are "sufficient questions regarding the proposed settlement that it would not be appropriate simply to grant the motion and postpone resolution of those issues to final approval[.]" Among other issues, the Court questioned (1) whether the size of the class is a sufficient justification for monetary relief limited to cy pres payments, (2) whether the $10 million in cy pres payments was an adequate proxy for an award of damages, (3) whether the $10 million figure for payment of attorneys' fees was appropriate, and (4) the specific nature of the injunctive relief that would be granted against Facebook. The Court directed that the parties respond directly to these issues on any renewed motion for approval of the class action settlement. 

8/31/2012: Facebook's brief in support of the motion for preliminary approval of the settlement rejected by the court is docketed. The brief asserted in support of the settlement that the plaintiffs' likelihood of success in the litigation is low based upon a wide range of defenses asserted by Facebook, including:

  • that Facebook's users consented, impliedly or expressly, to appear in Sponsored Content;
  • that plaintiffs cannot prove economic injury, or that such injury is de minimis;
  • that plaintiffs cannot base claims upon Sponsored Content that does not feature names or identifiable photographs, that is unrelated to "products, merchandise, goods or services," or that promotes news, public affairs, sports, political campaigns and other matters in the public interest;
  • that Facebook's republication of user comments was protected by the First Amendment and/or immunized by 47 U.S.C. s. 230; and
  • that the plaintiffs cannot establish that any of Facebook's conduct was unfair or fraudulent under California's unfair competition law.

As a result, Facebook argued that the proposed settlement provided concrete and immediate benefits to users that address the goals of the lawsuit, in a manner that was fair when balanced against the plaintiffs' likelihood of success and the extended effort that would be required to reach an uncertain result.

10/5/2012: The parties submit a proposed Amended Settlement Agreement and Release to the Court. According to the revised agreement, Facebook would commit to the following actions providing relief to the plaintiff class within six months of a final settlement:

  • revision to its Terms of Use to provide improved notice with respect to the Sponsored Stories program;
  • creation of a mechanism allowing users to view those aspects of their interactions and content on Facebook that have been displayed in Sponsored Stories, and to control which of these interactions and content are used in Sponsored Stories;
  • controls that allow parents to prevent the use of minors' names and likenesses in Sponsored Stories, and an automatic block of such use for minors who state that their parents do not use Facebook;
  • additional information for parents about how advertising works on Facebook; and
  • good faith efforts to cooperate with plaintiffs' counsel to identify and to correct information appearing on Facebook that incorrectly or insufficiently describes how advertising on Facebook works.

In addition, Facebook would agree to pay twenty million dollars ($20,000,000) into a settlement fund. From this settlement fund, authorized claimants from the plaintiff class would be entitled to a one-time payment of $10 each, with the remainder distributed to cy pres recipients on the following schedule: Center for Democracy and Technology (10% of cy pres distribution), Electronic Frontier Foundation (10%), MacArthur Foundation (10%), Joan Ganz Cooney Center (10%), Berkman Center for Internet and Society (Harvard Law School) (6%), Information Law Institute (NYU Law School) (6%), Berkeley Center for Law and Technology (Berkeley Law School) (6%), Center for Internet and Society (Stanford Law School) (6%), High Tech Law Institute (Santa Clara University School of Law) (6%), Campaign for Commercial-Free Childhood (6%), Consumers Federation of America (6%), Consumer Privacy Rights Fund (6%), ConnectSafely.org (6%), and WiredSafety.org (6%).

However, if payment of $10 to each authorized claimant would exhaust the settlement fund, the proceeds of the fund would be distributed to authorized claimants pro rata -- unless the proceeds to each claimant would be less than $5, in which case the Court would have the discretion to order either that (A) the pro rata amount be paid to claimants or (B) the entire settlement fund be paid to the cy pres recipients in the amounts set forth above.

Plaintiffs' counsel would also be entitled to file a motion for payment of their reasonable attorneys' fees and costs out of the settlement fund, and the named plaintiffs would be entitled to payment of no more than $12,500 each out of the settlement fund as an incentive award for their participation in the case. The Court would retain discretion with respect to attorneys' fees and incentive awards, and a decision not to approve fees or incentives in any particular amount (or at all) would not affect the settlement. Any attorneys' fees or incentive awards would be deducted from the settlement fund before payments to members of the class are calculated, as would any costs of administrating the settlement fund.

10/25/2012: Facebook files a memorandum in support (only redacted version available) of the parties' joint motion for approval of the revised settlement, arguing that the settlement is fair in light of the plaintiffs' likelihood of success.

11/15/2012: The Center for Public Interest Law and the Children's Advocacy Institute file an updated amicus memorandum in opposition to the amended settlement, raising, inter alia, concerns about the opt-out (as opposed to opt-in) mechanism for parental consent proposed by the new settlement, the capacity of minors to agree to Facebook's terms of service, the ability of plaintiffs' counsel to adequately represent the interests of minors, and the risk of depletion of settlement funds through excessive attorneys' fees.

12/03/2012: The Court grants preliminary approval of the amended settlement agreement, stating that "[t]he Settlement Agreement appears to be the product of serious, informed, noncollusive negotiations and falls within the range of possible approval as fair, reasonable and adequate."

Content Type: 

Subject Area: 

Priority: 

2-Normal

CMLP Notes: 

1/3/2011: In Progress; all docs collected, need to pull together summary. (JS)

Jurisdiction: 

Giordano v. Romeo

Date: 

09/17/2009

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Donna L. Romeo; Xcentric Ventures, LLC

Type of Party: 

Individual
Organization

Type of Party: 

Individual
Organization

Court Type: 

State

Court Name: 

Circuit Court of the 11th Judicial Circuit in and for Miami-Dade County, Florida

Case Number: 

09-68539 CA25

Legal Counsel: 

Maria Crimi Speth, of Jaburg Wilk (For Xcentric); Lawrence A. Wanshel (For Romeo)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (partial)

Description: 

John Giordano, president of a Florida-based addiction treatment company, filed suit (individually and on behalf of his company) against Donna Romeo over a posting on consumer-reporting website Ripoff Report. The post describes the treatment facility's conditions in harsh terms, and states that "one of the owners is a convicted felon."

The complaint names both Romeo and Ripoff Report's parent company, Xcentric Ventures; it alleges defamation (libel and libel per se) against Romeo, and seeks to permanently enjoin Ripoff Report (through Xcentric) from continuing to publish the post.

According to court transcripts, Giordano and Romeo eventually reached an agreement according to which the court would enter an injunction against Romeo, requiring her to ask Ripoff Report to remove the post. Ripoff Report's policy is to not remove posts. After Ripoff Report refused to remove the post, the trial court issued a temporary injunction against Xcentric. In so doing, the court found that because of the refusal to remove, Xcentric became "the publisher of the statements," thus outside the protections of 47 U.S.C. § 230.

Xcentric appealed, but withdrew that appeal shortly thereafter. A newly-assigned trial judge then dismissed the case against Xcentric, citing a number of cases for the proposition that Section 230 protects Ripoff Report. Giordano's appeal is pending in Florida's Third District Court of Appeals.

UPDATE:

On December 28, 2011, the Third District Court of Appeals ruled in favor of Xcentric. In a brief five-page opinion, the court stated that while Xcentric's business practices were "appalling," and "created a forum for defamation," Section 230 provides complete immunity for internet service providers like Xcentric against actions based on third-party postings. The court's decision is not final until the disposition of any timely motion for rehearing that Giordano might file.

Content Type: 

CMLP Notes: 

1/12/2012: JS updating; text of update sent to JH for review  

---- 

Hopefully this link to the appeals docket will continue to work:

http://199.242.69.70/pls/ds/ds_docket?p_caseyear=2011&p_casenumber=707&psCourt=3&psSearchType=

Here's a link to one of the att'ys handlying the appeal for Xcentric:

http://www.jaburgwilk.com/attorneys/maria-crimi-speth.aspx 

Jurisdiction: 

Subject Area: 

Pages

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