Chris Grotke and Lise LePage, co-founders and owners of iBrattleboro.com, a citizen journalism site based in Brattleboro, Vermont, were sued on November 16 for libel based on a comment submitted by one of the site's users. The lawsuit, brought by Effie Mayhew, alleges that David Dunn, the former executive director of Rescue Inc., an emergency medical services organization where Mayhew works as a volunteer, libeled her in a comment on the site.

According to the complaint, on September 30, 2007, Dunn authored an article in which he

states without specificity general sexual liaisons are being conducted on the premises. Then he names Ms. Mayhew, further stating that she is conducting an "affair" with a "married member of the Rescue, Inc. board of trustees" indicating that this behavior was happening during "on call" hours at the agency.

The complaint doesn't appear to make any allegations that Grotke or LePage authored the allegedly defamatory statements, only that they failed to edit or remove the comment. As a result, Grotke and LePage are almost certainly shielded from liability under section 230 of the Communications Decency Act ("CDA 230").

Under CDA 230, "[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 immunity preempts state law causes of action, like defamation claims, that are based on "publisher" liability. Moreover, immunity exists even if a defendant edits comments (so long as the edits do not materially change the meaning of the statement) or otherwise exercises discretion in selecting which comments to post or remove.

Update:

12/3/07 - Defendants Grotke and LePage filed motion for judgment on the pleadings

3/18/08 - Court dismissed action under CDA 230 as to defendants LePage, Gotke, and MuseArts Inc.

9/2/08 - We were informed that the Court dismissed the remaining claim against David Dunn 

Terri and Munir Chavla, operators of a community forum called LocalScoop.net, along with three anonymous users of the site sued Mark Kavakich, the local chief of police. According to the lawsuit, Kavakich posted messages on the site threatening to uncover the identities of anonymous users who had criticized him and sent an email to the site's operators threatening civil and criminal action. Plaintiffs also allege in their complaint that Kavakich sent them a subpoena seeking the identities of users of the site.

On April 20, 2004, the court issued an order granting plaintiffs' motion for a temporary restraining order, enjoining defendant Kavakich from a) making any threats, either generally or specifically, to prosecute or identify people who post messages on the Internet, specifically, at www.localscoop.net; b) enforcing subpoenas, dated 4/12 and 4/14/04, against www.localscoop.net webmaster Russell Stevens; and c) from threatening to use or making use of any compulsory process to prosecute, identify or confront people who post messages on the Internet, specifically at www.localscoop.net, except by leave of court based upon a showing of probable cause.

The case then proceeded through discovery and court ordered mediation. On January 24, 2006, the court approved the parties' consent decree settling the case. The settlement involved the payment of $42,000 to the plaintiffs and the continuation of the limitations outlined in the preliminary injunction.

Plaintiffs received legal asssistance from Witold Walczak, ACLU of Pennsylvania Legal Director.

In March 2007, Children of America, Inc., a childcare provider, sued Ed Magedson and Xcentric Ventures, LLC, the owners and operators of the Ripoff Report website, for defamation in Arizona state court.

Ripoff Report is a consumer reporting website that invites consumers to file and document complaints about companies or individuals with whom they've had negative business experiences. Users of Ripoff Report posted a number of critical comments about Children of America.

Children of America sued, arguing that, in addition to publishing user comments, Ripoff Report itself augmented and/or added headlines for the allegedly defamatory postings.

The defendants moved to dismiss the claim based on CDA 230, which protects information service providers from liability for the defamatory comments of third parties. On October 24, 2007, the Arizona Supreme Court granted the motion with respect to those statements allegedly created by Ripoff Report users, but allowed the action to continue with respect to those statements allegedly authored by the defendants.

Update:

12/1/08 - According to the Case Docket, the parties have settled the case.

Robert Sanchez lost an election for City Commissioner in Brownsville, Texas, but kept the forum on his campaign website active after the election. On that forum, users posted allegedly libelous material about Carolyn Lackner Baird, a jewelry store owner connected to Sanchez's political rival, as well as her daughter and her business.

The corporation operating the jewelry store sued Sanchez for libel based on these posts. Sanchez removed the case to federal court on grounds that Section 230 of the Communications Decency Act (47 U.S.C. § 230(c)) protected him from liability.

On plaintiff's motion to remand, the federal court held that, as an affirmative defense, CDA 230 did not provide proper grounds for removal of the action to federal court when the parties were both from Texas and the plaintiff had asserted only state law claims for relief.

The federal court therefore remanded the case back to the County Court of Cameron County, Texas.

On November 1, 2007, Internet Solutions, a company that runs a number of employment recruiting and Internet advertising businesses, including VeriResume, sued blogger Tabatha Marshall in federal court in Florida.

Marshall runs a blog and website at www.tabathamarshall.com, on which she writes about suspicious online job solicitations and so-called "phishing" practices. Part of her site consists of the "PhishBucket," a "directory of companies/individuals suspected of targeting job seekers with deceptive offers." Included in the PhishBucket is an entry for "VeriResume (Internet Solutions)," which bears the statement "Pending Investigation Phisher" at the top-right of the page. The entry also contains physical and web addresses for the company, links to posts about it (internal and external), and names of affiliated companies. The PhishBucket also includes entries for other companies operated by Internet Solutions, including Ask America, Scout 2007, Too Spoiled, and USA Voice.

Marshall's site also contains articles relating to her research and views about certain companies and their online job solicitations. Among these is a post entitled "Something's VeriRotten with VeriResume." In this post, Marshall excerpts a sample email from VeriResume soliciting job applications, criticizes the company's position on resume fraud, and links to other sites (like the Better Business Bureau) with information about VeriResume and Internet Solutions. She invites readers to "[c]heck out the research and YOU decide if you want to give them your info."

Several users submitted comments to the post that were critical of VeriResume. One user, who claimed to be a company employee, alleged that the company engages in a "bait-and-switch" routine after applicants submit their information, according to documents attached to the complaint. In an update to her original post, Marshall summarized these user's comments and expounded on the situation.

Starting on October 30, 2007, a representative of VeriResume (or Internet Solutions -- the record is not clear on this point) contacted Marshall via email, claiming that information about VeriResume and other companies posted on Marshall's website was incorrect and asking her to remove it. According to Marshall, the company representative also contacted her landlord, claiming that Marshall was operating a business in her house, a claim that Marshall disputes. On October 31, 2007, one day before filing suit, counsel representing VeriResume and ten other Internet Solutions-affiliated companies sent a cease-and-desist letter to Marshall via email. (For more information on the emails and letter, please see the CMLP database entry, VeriResume v. Marshall (Email)).

Internet Solutions's complaint includes claims for defamation, false light invasion of privacy, and injurious falsehood (trade libel). It alleges that Marshall has "author[ed], post[ed], and publish[ed]" statements claiming that Internet Solutions engages in "phishing," "scams," and other criminal and fraudulent conduct. It requests compensatory and punitive damages, and an injunction requiring Marshall to remove the allegedly defamatory posts and prohibiting her from making future defamatory statements about the company.

Marshall was served with the complaint on November 3, and she has 20 days to respond. Marshall maintains that she merely posts her opinions, publicly available information, and third-party comments and asks her readers to draw their own conclusions. She is seeking legal assistance in this matter.

Update:

4/8/2008 - The court dismissed the complaint, holding that it lacked personal jurisdiction over Marshall.

4/24/08 - Internet Solutions indicated to Marshall that it intends to file an appeal and commence another lawsuit in Washington state.

04/29/08 - Internet Solutions filed a notice that it has appealed the dismissal to the 11th Circuit.

06/06/2008 - Internet Solutions filed its appellate brief with the 11th Circuit.

07/16/2008 - Marshall filed her appellate brief with the 11th Circuit.

02/10/2009 - The 11th Circuit certified a question to the Florida Supreme Court: "Does posting allegedly defamatory stories and comments about a company with its principal place of business in Florida on a non-commercial website owned and operated by a nonresident with no other connections to Florida constitute a commission of a tortious act within Florida for purposes of Fla. Stat. section 48.193(1)(b)?"

03/03/2010 - Florida Supreme Court heard oral argument on the certified question.

06/17/2010 - Florida Supreme Court issued its decision on the certified question:

We answer the rephrased certified question in the affirmative. We conclude that posting defamatory material on a website alone does not constitute the commission of a tortious act within Florida for purposes of section 48.193(1)(b), Florida Statutes. Rather, the material posted on the website about a Florida resident must not only be accessible in Florida, but also be accessed in Florida in order to constitute the commission of the tortious act of defamation within Florida under section 48.193(1)(b). 

9/30/2010 - District Court dismissed case based on lack of personal jurisdiction.

Justin Leonard runs the websites infomercialratings.com and infomercialscams.com. These websites give consumers the opportunity to voice their criticisms and defenses of various products and services. Pages on these websites are devoted to criticisms and defenses of Video Professor, Inc., a Colorado company that develops and sells video tutorials on a variety of computer-related topics. Apparently, a number of anonymous posters made critical statements about Video Professor's products on these forum pages.

In August 2007, Video Professor filed a John Doe lawsuit against 100 anonymous defendants (and some anonymous corporations and LLCs too!) in federal court in Colorado. The complaint includes claims for violations of the Lanham Act, violations of a Colorado consumer protection statute, tortious interference with business relations, and common law product disparagement/defamation. The complaint states that the anonymous defendants made false and defamatory statements about Video Professor's products, but does not identify any specific statements.

Video Professor moved ex parte for an order authorizing it to conduct discovery, in the form of third-party subpoenas requiring the recipients to produce documents identifying the anonymous posters. The court granted the motion.

On September 6, 2007, Justin Leonard's company, Leonard Fitness, Inc., received a subpoena, requesting that it produce identifying information for the author of every post on Leonard's websites relating to Video Professor. Along with the subpoena, Video Professor provided a check for $40.81 to compensate Leonard for his expenses in complying with the subpoena.

The Public Citizen Litigation Group took up the matter on behalf of Leonard and sent a letter to Video Professor's counsel objecting to the subpoena and laying out the reasons why, in its view, the subpoena was invalid.

Specifically, the letter argued that the subpoena encroached upon the rights of the anonymous defendants to engage in anonymous speech on the Internet without meeting the legal requirements necessary to justify disclosure of their identities. It also argued that the subpoena was unduly burdensome because it called for information relating to all postings about Video Professor on Leonard's sites, rather than identifying which postings were allegedly defamatory or otherwise unlawful. Finally, the letter stressed that the check provided with the subpoena was not sufficient to compensate Leonard for the work he would have to do to comply with the subpoena.

Communications ensued between Public Citizen and counsel for Video Professor. Video Professor narrowed the list of anonymous posters to 43. It also endeavored to provide Public Citizen with evidence supporting its allegations for each of the postings.

On or around October 18, 2007, Public Citizen sent a notice to each of the 43 posters identified by Video Professor. The letter informed the posters of the pendency of the lawsuit and the request for identifying information about them. It encouraged them to hire a lawyer and explained that Leonard would not produce any documents before October 31, 2007, in order to to give them the opportunity to file a motion to quash the subpoena in federal court. It also indicated that Public Citizen had asked Video Professor for evidence to support its claims, and that Public Citizen (on behalf of Leonard) would move to quash the subpoena should it determine that Video Professor had not done so.

On October 19, 2007, Public Citizen sent Video Professor a letter, explaining that it had sent the notice. The letter also questioned the legal adequacy of the Lanham Act claims and the adequacy of Video Professor's factual showing on the defamation claims. It requested more documents to establish, among other things, the falsity of the statements at issue.

We are not aware of the filing of any motion to quash yet.

On September 21, 2007, DirectBuy, a company that apparently helps customers to buy furniture directly from manufacturers, sent a cease-and-desist letter to Leonard through its lawyers, Dozier Internet Law, P.C. The letter claims that Leonard and his users had defamed the company by referring to its direct-buy plan as a "scam" and a "nightmare." It threatens a lawsuit unless Leonard removes "all defamatory and disparaging statements" about DirectBuy from his websites and compensates the company for its attorneys fees and costs. Most interestingly, the letter ends with an assertion of copyright on behalf of the law firm:

Please be aware that this letter is copyrighted by our law firm, and you are not authorized to republish this is any manner. Use of this letter in a posting, in full or in part, will subject you to further legal causes of action.

Public Citizen Litigation Group got involved on behalf of Leonard. Lawyers for the group not only posted the Dozier firm's letter, but sent a powerful (yet cheeky) response entitled "How not to write a cease and desist letter -- an open letter in response to your September 21 threat." The response not only disputes DirectBuy's defamation claim and its expansive reading of the important recent CDA 230 case, Fair Housing Council v. Roommate.com, 489 F.3d 921 (9th Cir. 2007), but also takes the Dozier firm to task for its copyright warning, calling it "the worst thing about your letter". The Public Citizen lawyer continued:

Such a posting [of the letter] would be fair use. Moreover, inquiry by my colleague Greg Beck produced the interesting information that the copyright in the letter has not been registered. Sadly, according to what you told him, you have been successful in this intimidation because none of your cease and desist letters has ever been posted.

There is always a first time. We are posting the letter on the Public Citizen web site (the letter can be found at http://www.citizen.org/documents/directbuycd.pdf) so the public can assess our differences by comparing your contentions with our responses. By this letter, we are inviting you to test the validity of your theory that a writer of a cease and desist letter can avoid public scrutiny by threatening to file a copyright law suit if his letter is disclosed publicly on the Internet.

There appears to have been no developments after Public Citizen's response letter.