Daniel Neiditch, President of the Board for Atelier Condos on West 42nd Street in New York City, filed a lawsuit last Wednesday against two condo owners and three former employees, alleging that they published defamatory statements on various websites and blogs (defunct), as well as on Twitter (also defunct). The condo building's property manager and the estate of its former resident manager also joined as plaintiffs in the lawsuit,* which was filed in New York Supreme Court, New York County. The case against the individual defendants is fairly complex and ultimately not that interesting — it involves a string of different websites and some pretty horrific accusations of "murder, bribery, extortion, illicit payoffs, and corruption." Cmplt. ¶ 1.
What makes the case notable is that Neiditch and his fellow plaintiffs also sued Twitter, WordPress.com, and Ning for hosting the allegedly defamatory content, and Go Daddy for providing URL redirects to it.
It's amazing that some plaintiffs' lawyers still don't know about Section 230 of the Communications Decency Act ("Section 230"), which grants interactive online services broad immunity from certain types of legal liability — including defamation — stemming from content created by others. You may recall the lawyer who, back in January, filed a lawsuit against Yelp on behalf of a dentist who was unhappy about a user review — he later admitted that he "wasn't aware" of Section 230 when he filed suit and voluntarily dismissed the case against the popular review site. Woops.
With this most recent case, it looks like we have another oblivious lawyer on our hands. The complaint makes no effort to demonstrate that Twitter, WordPress, Ning, or GoDaddy had any role in the "creation or development" of the individual defendants' content, at least not in any way recognized by the case law. Paragraph 19 is representative of the completely passive role the complaint attributes to the intermediaries:
The websites were created through Defendants Ning.com and Wordpress.com; and "urls" operating as masking sites maintained by Defendant GoDaddy.com forwarded computer users to the aforesaid websites through Defendant Ning.com and Wordpress.com. In addition, the same comments were "twittered" via the service provided by Defendant Twitter, Inc. . . . .
At best, these allegations establish that Twitter, Ning, and the others may have made it marginally easier for the individual defendants to develop and disseminate information. That simply is not enough to overcome Section 230 immunity. The complaint later goes a (tiny) bit further, claiming that Ning didn't take down offending content even after Neiditch's lawyer put it on notice (¶¶ 24-25), but the Zeran case and others like it long ago dispensed with this as a ground for getting around Section 230.
I have no beef with Mr. Neiditch and his property manager for suing the condo owners and former employees in this case — if the allegations in the complaint are true, they published some truly outrageous statements with no basis in fact and exceeded all bounds of responsible disagreement. In other words, this is no complaint about mold. What is regrettable is that counsel dragged Twitter and the other intermediaries into the case without any apparent understanding of a foundational aspect of Internet law. Someday, this should be grounds for sanctions.
* Note: The estate should not be able to sue for defamation of the deceased under New York law. Rose v. Daily Mirror, Inc., 284 N.Y. 335, 337-38 (1940).
