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.

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."

This case concerns the "Innocence of Muslims" video, which portrays the Prophet Muhammad in a highly offensive light and caused protests throughout the world in the fall of 2012.

Cindy Lee Garcia was an actress who appeared in the film. According to the complaint filed on September 19, 2012, Garcia was never informed during the production of the movie of the offensive and inflammatory nature of the film. According to the complaint, "Plaintiff was unaware of the vile content contained in the Film, as the content and overall purpose of the Film was concealed from them at all times . . . ." The complaint further claims that Garcia has received death threats because of the film, was fired from her job, and has been informed by her family that she is no longer permitted to see her grandchildren.

The complaint alleges invasion of privacy under the California Constitution, false light, violation of California's right of publicity statute, violation of California's unfair competition law, and intentional infliction of emotional distress. As against defendant Nakoula and 50 doe defendants allegedly associated with Nakoula, Garcia also alleges fraud and slander. Garcia also sought a temporary restraining order blocking distribution of the film.

On September 20, 2012, the California Superior Court for Los Angeles County denied the temporary restraining order, finding a lack of likely success on the merits.

According to the docket (search for case BC492358) plaintiff Garcia filed a request for dismissal without prejudice, which was granted on September 25, 2012.

Update:

On September 26, 2012, Garcia filed a federal complaint in the United States District Court for the Central District of California, re-alleging fraud, unfair business practices, libel, and intentional infliction of emotional distress against defendant Nakoula and the doe defendants allegedly associated with Nakoula. Garcia also alleges copyright infringement as against all defendants, claiming that Nakoula's contract never addressed copyright ownership, and her performance in the film vested her with a copyright interest in the film. Garcia notes in the complaint that she filed five DMCA "takedown" notices to YouTube on September 24th and 25th, which were not acted upon by the time of the complaint's filing.

On October 17, 2012, Garcia filed an application for a temporary restraining order to take down the video on YouTube. Garcia again argued that her performance was independently copyrightable from the Innocence of Muslims film, and that neither Nakoula nor YouTube had a license to use the performance. Garcia cites the recently-signed WIPO Audiovisual Performances Treaty for this proposition (which is currently in the ratification process) and statements made by the United States Patent and Trademark Office suggesting that actors are currently treated as authors under copyright law. Garcia filed a request for judicial notice with the statements from the USPTO.

On October 18, 2012 the court issued a minute order on Garcia's application, rejecting an ex parte ruling on the injunction and transforming the application to a motion for a preliminary injunction. The court ordered any opposition briefs from the defendants to be filed by October 29, and a reply filed by November 5, before a hearing scheduled for November 19, 2012.

On October 19, 2012, Occupy Los Angeles moved to intervene in the case, in support of the plaintiff. The court denied this motion in a minute order on November 15th.

On October 29, 2012, Google and YouTube filed an opposition brief against a preliminary injunction. Google and YouTube argued that Garcia's brief appearance in the film does not vest her with any copyright interest, and that the lawsuit is a plain attempt to censor the video because of its offensiveness. Google and YouTube also filed an opposition to the request for judicial notice of certain factual circumstances around the film and the USPTO's opinions regarding the WIPO treaty.

On November 5, 2012, Garcia filed a reply to Google and YouTube's opposition to the preliminary injunction. Garcia argued that denial of authorship rights to actors in films contravenes the custom and practice of the film industry, and that First Amendment concerns should not be addressed, due to lack of state action.

On November 28, 2012, Timothy Alger, attorney for defendants Google and YouTube, filed a declaration wherein he stated that he had obtained a copy of a copyright and likeness release filled out by Garcia in relation to this film, which assigns any copyright interest in her performance to Nakoula. After Garcia's attorney expressed doubts as to the authenticity of this document, Alger went to Nakoula (who is referred to in this document by his alternative name, "Mark Basseley Youssef") who signed his own declaration stating that Garcia signed this release.

On November 29, 2012, Garcia filed a request to cross examine both Nakoula and Alger. Google and YouTube filed an opposition to this request on November 30th. The court denied the request to cross examine on the same day, noting that the declarations would not be used for disposition of the pending motion for preliminary injunction. On the same day Garcia filed a request to strike the two declarations, accompanied by a declaration by James Blanco, a handwriting analyst, who concluded based on comparison of specimen handwriting samples that Garcia is not the person who signed the copyright and personality release.

Also on November 30th, the court issued a minute order denying the motion for a preliminary injunction. The court found that Garcia was unlikely to be able to prove success on the merits of her copyright claim, as the Ninth Circuit case Aalmuhammed v. Lee would suggest that she should not be considered the author of the final film, and to the extent that a copyright interest could be found in the performance it is likely that Garcia gave Nakoula an implied license under the Ninth Circuit case Effects Associates v. Cohen.

On December 21, 2012, Garcia filed a notice of appeal of the preliminary injunction ruling to the Ninth Circuit. The Ninth Circuit's scheduling order has appellant briefs due January 18, 2013, with appellee's brief due February 15, 2013, or 28 days after service of the appellant's brief.