A quick legal update for a Monday morning, as the United States Court of Appeals for the Third Circuit has upheld the decision of Judge Stewart Dalzell in the Eastern District of Pennsylvania which confirmed that the owner of a website cannot be held liable for defamatory posts on his site made by its users.

Tucker Max, a New York-based aspiring celebrity and lothario-in-training, had encouraged his bulletin board’s readers to savage Philadelphia’s Anthony DiMeo III, heir to a blueberry farm fortune, for a 2005 New Year’s Eve party DiMeo promoted at a local restaurant which ended in a shambles when the bar ran out of alcohol well before midnight.

"You threw an absolutely disastrous party on New Year's Eve precipitated by false advertising and possible fraud," wrote one of the site’s few anonymous commenters that I can quote unexpurgatedly. Others insulted DiMeo’s appearance, or made various profanity-laced, hyperbolic suggestions to DiMeo, some suggesting acts that are both illegal and anatomically impossible. (Read the court's opinion at p 4-6 for more.) In response, DiMeo (himself an aspiring celebrity) sued Max for defamation, seeking to hold him liable for "negligently, carelessly, recklessly and/or intentionally publish[ing] said libelous statements."

In dismissing the suit, Judge Dalzell relied heavily on 47 U.S.C. § 230, a portion of the Communications Decency Act, which states that "[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 provision, passed in 1996, is a relic of the pre-Internet era, during which the interactive computer services under consideration were large, corporate-sponsored sites like America Online, CompuServe and Prodigy. The provision was designed to encourage such sites to self-regulate, editing and screening offensive content in order to protect minors, by removing perverse disincentives that might otherwise have discouraged website owners from taking a more active role in policing themselves.

Judge Dalzell determined that this regulation also protected individual bloggers like Max who operated smaller, less formal sites than those contemplated by the bill’s sponsors. The Court held that Section 230 protected TuckerMax.com both as an provider and a user of an interactive computer service – namely, the Internet. As such, Max could not be held liable for defamation no matter how crude or malicious the statements on his site were.

In a footnote, however -- and pay attention, folks, because this is where you come in -- Judge Dalzell maintained that individual posters could themselves still be held personally liable for defamatory statements they made online. The question, obviously, then becomes whether a poster's claimed right to anonymity supersedes an alleged victim of defamation's right to determine who her attacker is, and the obligation of website operators and internet service providers to assist the alleged victim in identifying that individual.

[The major case on this topic I know of is Doe v Cahill, a 2005 decision. In that case, the Delaware Supreme Court determined that since "the possibility of losing anonymity in a future lawsuit could intimidate anonymous posters into self-censoring their comments or simply not commenting at all, and that "a defamation plaintiff, particularly a public figure, obtains a very important form of relief by unmasking the identity of his anonymous critics," the best balancing of rights meant that before a defamation plaintiff could obtain the identity of an anonymous defendant through the compulsory discovery process, he must undertake efforts to notify the anonymous poster that she is the subject of a subpoena, including posting notice on the board where the defamation occurred, and must prove to to the court's satisfaction that her statements were sufficiently defamatory to create a prima facie case for liability.]

Some odd incentives remain. In assessing whether these particular remarks could have been deemed defamatory, Judge Dalzell noted that Pennsylvania law required them to be viewed in the context of the site as a whole, based upon the "effect the [writing] is fairly calculated to produce, the impression it would naturally engender, in the minds of the average persons among whom it is intended to circulate." As such, the more reputable a site attempts to be and the higher its level of discourse, the more amenable it becomes to facing a defamation suit. Max’s commenters, on the other hand, were virtually immune from liability because no one could possibly mistake them for contributors to the op-ed page of the New York Times. In other words, the same remark -- published on two different websites -- could be found defamatory on one but not the other, and that the best way to avoid defamation liability is in fact to run a website that lacks even the pretense of accuracy or good taste.

In upholding Judge Dalzell's opinion last week, the Third Circuit had no problem agreeing that "Max’s website is an interactive computer service because it enables computer access by multiple users to a computer server" aand that because "DiMeo does not allege that Max authored the comments on the website or that he is an information content provider," Max is immune from suit for his commenters' speech.

Any questions? Let me know.

EDPa opinion: link

3d Cir opinion: link