Earlier this month, Cherie Davis, mother of 2006 gold medal winner Shani Davis, the first African American speed skater to make the U.S. Olympic team, sued Google, Inc. in Illinois state court, seeking an injunction requiring the company to take down a blog post written by deceased sports blogger Sean Healy.
Healy published the disputed post in 2006 on his blog, Unknown Column, which is hosted on Google's Blogger service. In the post, Healy repeated the claim, reported at the time by some mainstream media outlets, including The Associated Press and Chicago Tribune, that Cherie Davis had accused the U.S. Speedskating Federation of racism. (These reports are no longer available online, but The Age, an Australian news outlet, is still carrying a similar story.) Healy subsequently died of cancer in 2007.
In her complaint, Davis alleges that Healy's post was false and defamatory, that she cannot bring a lawsuit for damages against Healy because of his death and his apparent lack of a probate estate, and that Google "would not be prejudiced by an order enjoining it from continuing to post Healy's statement on Healy's blog, as [Google] has no interest, economic or otherwise, in continuing to post Healy's statement." Davis seeks an injunction requiring Google to take down Healy's post, as well as payment of legal expenses.
As Eric Goldman, Wendy Davis, and other commentators have noted, this case is probably doomed. Section 230 of the Communications Decency Act ("Section 230") protects blog hosts like Google from liability for publishing user-generated content, even if the content turns out to be defamatory. That Davis seeks an injunction rather than damages should make no difference. See Kathleen R. v. City of Livermore, 87 Cal. App. 4th 684, 697-98 (Cal. Ct. App. 2001) ("[C]laims for declaratory and injunctive relief are no less causes of action than tort claims for damages and thus fall squarely within Section 230(e)(3) prohibitions."); Noah v. AOL, 261 F. Supp.2d 532, 539-40 (E.D. Va. 2003) (holding that Section 230 applies to claims for injunctive relief); Smith v. Intercosmos Media Group, 2002 WL 31844907, at *4-5 (E.D. La. Dec. 17, 2002) (same); see also Ben Ezra, Weinstein & Co. v. AOL, 206 F.3d 980, 983-86 (10th Cir. 2000) (applying Section 230 to claims for injunctive relief and damages); Cisneros v. Yahoo!, Inc., No. CGC-04-433518, slip op. at 2, 10-12 (Cal. Super. Ct. Nov. 7, 2008) (applying Section 230 to claims for injunctive relief). But see Loudon v. Bd. of Trustees, 2 F. Supp. 2d 783, 789-90 (E.D. Va. 1998) (holding that Section 230(c)(2) immunity for good-faith blocking did not apply to claims for injunctive relief); Does v. Franco Prods., 2000 WL 816779, at *5 (N.D. Ill. June 22, 2000) (following Loudon in the context of Section 230(c)(1) immunity, but dismissing claims on the merits), aff'd, Doe v. GTE Corp., 347 F.3d 655 (7th Cir. 2003).
Even if Section 230 were not an obstacle, Davis would face an uphill battle trying to prove that the underlying defamation claim is actionable. As a limited-purpose public figure, Davis would likely have to prove Healy made the allegedly defamatory statement with actual malice -- that is, with knowing or reckless disregard for its falsity. Proving the state of mind of a dead man could be challenging, to say the least. More importantly, it looks like Healy relied on information first published by prominent (and presumably reliable) news organizations; his reliance on these sources probably rules out recklessness on his part. Finally, Davis's case is likely time-barred under California's one-year statute of limitations for defamation.
Besides these relatively straightforward legal questions, the case calls to mind some interesting policy issues, which Eric Goldman does a good job exploring. To me, the most basic yet fascinating one is how we should handle online content when somebody dies. The probate process may allocate intellectual and tangible property rights, but other questions remain:
- Should we recognize a deceased publisher's intent to keep material online indefinitely, and, if so, how would that intent be legally expressed?
- Should email providers automatically turn over emails to next of kin? (In 2004, the family of a marine killed in Iraq had to get a court order to compel Yahoo! to give them access to their son's email account -- coverage here, here, and here.)
- Could we instruct service providers to archive and store content for later release to children upon reaching the age of majority?
- Can we develop new tools for effectively communicating our wishes and expectations to service providers before we die?
There are lots of questions, and not many answers yet. As Goldman aptly puts it, "this issue won't come up often, but it will definitely come up again."
You can monitor case developments through our database entry, Davis v. Google.
