In January 2004, Whitney Information Network, Inc., a company that provides real estate training programs and seminars, and its CEO Russ Whitney sued Xcentric Ventures, LLC and its founder and managing member, Ed Magedson. Xcentric operates the Ripoff Report website, located at www.ripoffreport.com and www.badbusinessbureau.com, which allows visitors to read and post reports about companies that allegedly have "ripped off" consumers. A number of reports saying derogatory things about Whitney Information Network appeared on the Ripoff Report website. In the original complaint, the plaintiffs alleged that Xcentric and Magedson violated federal and state trademark laws and committed defamation of business reputation (often referred to as "trade libel") by publishing these reports.

In July 2005, the district court dismissed the original complaint, but granted the plaintiffs permission to file an amended complaint. Whitney Information Network re-filed an amended complaint, including only the defamation claim. In the amended complaint, Whitney alleged that Xcentric and Magedson not only published critical reader reports, but edited the complaints to include words like "ripoff" and "scam," and also fabricated certain reports altogether. In February 2006, the court dismissed the amended complaint, reasoning that CDA 230 barred the defamation against Xcentric and Magedson. The Eleventh Circuit Court of Appeals reversed the ruling in March of that year, holding that the allegations that the defendants had altered and fabricated reports were sufficient for Whitney Information to survive a motion to dismiss.

Back in the trial court, the defendants moved for summary judgment, arguing that there was no evidence that they altered or fabricated reports and that CDA 230 thus barred Whitney Information's claim. In February 2008, the court granted the motion for summary judgment, dismissing the amended complaint in its entirety. The court held that Whitney Information had not come forward with any competent evidence to show that Magedson or anyone else working for Xcentric edited or fabricated any reports about it.

The court also rejected Whitney Information's argument that Xcentric and Magedson forfeited the protection of CDA 230 by requiring readers to describe their complaints by choosing from a drop-down menu of tags when submitting a report. The available tags included categories like "con artists," "corrupt companies," and "false advertisements" (which were allegedly applied to reports about Whitney), as well as more neutral terms like "seminar programs," "multi level marketing," "financial services," and "business consulting," just to name a few. The court also rejected the argument that the defendants should lose the protection of CDA 230 because they encouraged and actively solicited defamatory statements from their users.

On June 14, 2007, two prominent lawyers in Seattle, WA filed a class action lawsuit against Avvo Inc., the operator of Avvo.com, a website that profiles and rates lawyers and allows users to submit reviews of lawyers they have worked with. Plaintiffs also sued Mark Britton, Avvo's CEO, and 25 anonymous "John Doe" users of the site.

The lawsuit alleges that Avvo's rating system, which plaintiffs claim resulted in their receiving an unreasonably low score, violates the Washington Consumer Protection Act. They also allege that Avvo purports to be objective but is subject to manipulation, cannot produce a reliable system, contains inherent inconsistencies, does not provide a reliable benchmark for assessing lawyer competence, encourages consumer trust in a fallible system, allows attorneys to manipulate their ratings, promotes qualities of attorneys in violation of the Rules of Professional Conduct, and does not accurately report in the categories where it purports to do so. As a result, they assert that Avvo has damaged their reputation and good will. Moreover, by filing a class action lawsuit, the two lawyers are disputing not only their own rankings on the site, but are also challenging the accuracy and validity of the mathematical algorithm used by Avvo to rate and compare attorneys.

On June 28, 2007, defendants filed a motion for judgment on the pleadings, which the court granted on December 18. In dismissing the complaint without leave to amend, Judge Lasnik wrote that the ratings on the site are protected statements of opinion, noting that "defendants' rating is not only defensible, it is virtually impossible to prove wrong." While evidencing clear skepticism about lawyer ratings generally, the judge also took the plaintiffs to task for bringing the lawsuit:

[P]laintiffs Browne and Wenokur want to make a federal case out of the number assigned to them because (a) it could harm their reputation, (b) it could cost them customers/fees, or (c) it could mislead the lawyer-hiring public into retaining poor lawyers or bypassing better lawyers. To the extent that their lawsuit has focused a spotlight on how ludicrous the rating of attorneys (and judges) has become, more power to them. To the extent that they seek to prevent the dissemination of opinions regarding attorneys and judges, however, the First Amendment precludes their cause of action

Judge Lasnik also rejected the plaintiffs' claim under the Washington Consumer Protection Act, concluding that the rankings are not commercial enough to fall under the act and any damages resulting from consumer misinformation are too speculative to support a claim.

As to Avvo’s possible defense under section 230 of the Communications Decency Act, the judge noted that "[p]laintiffs have disavowed any claim based on content that Avvo obtained from a third-party and the Court need not consider this defense further."

Todd Hollis objected to the information users posted about him on DontDateHimGirl.com, a website that allows women to post about men and warn other women about them. In May 2006, Mr. Hollis sued Tasha Joseph/Cunningham, the operator of the website, alleging defamation in Pennsylvania state court, after she refused to remove the posts.

The Pennsylvania court dismissed the action for lack of personal jurisdiction over Joseph/Cunningham, a resident of Florida.

On November 29, 2007, Hollis filed a second lawsuit in federal court in Florida, alleging defamation, intentional infliction of emotional distress, and false light invasion of privacy. According to the Pittsburg Post-Gazette, Tasha Joseph/Cunningham issued the following statement in response to the new lawsuit:

DontDateHimGirl.com's mission is to empower women with the informationand connections that help them make better life decisions. DDHG.com is fully protected [from defamation lawsuits] by the Communication Decency Act. ... Any attack or lawsuit put forth regarding DDHG.com will be dealt with strongly, swiftly and in a manner which will seek to end this type of erroneous, wasteful litigation.

03/31/2008: Cunningham answered Hollis' complaint and filed a counterclaim against Hollis for defamation. The defamation claim arose from an telecopier document allegedly sent by an organization related to Hollis that stated as fact that Cunningham had been convicted of grand theft by the State of Florida.

04/14/2008: Defendants filed a motion for partial summary judgment. The motion argued that defendants were entitled to summary judgment on several of plaintiff's claims because certain examples of the disputed content were true and certain examples were entitled to protection under CDA 230.

03/2008 through 05/2008: Plaintiff and defendants filed a series of motions disputing discovery issues. These primarily concern defendants' requests for information from plaintiff and plaintiffs requests to depose individuals regarding defendants' reputation.

05/15/2008: Court dismissed Cunningham's counterclaim at Cunningham's request and granted Cunningham's request for protective orders that would prevent plaintiff from deposing certain individuals on the issue of defendants' reputation.

06/20/2008: The case has been dismissed with prejudice by stipulation of both parties. Details of the settlement are not yet available.

 

In June 2007, Rachel Neuwirth, a journalist and political commentator who espouses strongly pro-Israel views, sued Washington-state blogger Richard Silverstein and university professor Joel Beinin for libel in a California state court. On November 27, 2007, the court granted Silverstein and Beinin's motion to strike the complaint pursuant to California's anti-SLAPP statute (Cal. Code Civ. Proc. § 425.16).

Neuwirth, a journalist and political commentator who espouses staunchly pro-Israel views, sued over two allegedly defamatory statements, one made by Silverstein on his blog, Tikun Olam, and the other made by Beinin on a listserv and subsequently re-published by Silverstein. In the first statement, Silverstein called Neuwirth a "Kahanist swine." The term "Kahanist" refers to a form of right-wing, religious Zionism, one of the central tenets of which is that all Arab Muslims are enemies of Israel. The Israeli Kahane Chai (Kach) party is barred from participating in Israeli elections and listed as a terrorist organization by Israel, the United States, Canada, and the European Union. Neuwirth argued that, by calling her a "Kahanist swine," Silverstein implied that she was a terrorist. The second statement was Beinin's, made on the "Alef" listserv, claiming that Neuwirth had made a death threat to him. Silverstein subsequently re-posted Beinin's statement on his blog.

In granting the motion to strike, the court determined that the anti-SLAPP statute applied because Silverstein and Beinin made their respective statements in a "public forum" and those statements related to an issue of public interest. The burden then shifted to Neuwirth to demonstrate a probability that she would prevail on her claim. The court found that Neuwirth had not met this burden, holding that she was a limited purpose public figure and noting that she had brought forth no evidence of "actual malice" for either of the two statements. With regard to Silverstein's "Kahanist swine" statement, the court further held that this was a non-actionable statement of opinion. 

Finally, the court held that Neuwirth's claim against Silverstein for re-publishing Beinin's statement was barred by CDA 230, which protects providers of interactive computer services from tort liability for publishing the statements or content of third parties.

The court awarded Beinin $1,840 in attorney's fees and indicated that Silverstein should make his claim for attorney's fees in a separate motion.  At the conclusion of the hearing in which the court delivered its decision, Neuwirth's attorney told the court that his client intended to appeal the ruling.

 

Update:

1/25/08 - Neuwirth filed a notice of appeal.

3/4/08 - The court ordered Neuwirth to pay Silverstein $7000 in attorneys fees pursuant to the anti-SLAPP statute.

2/9/2009 - The Court of Appeal of the State of California, Second Appellate District, reversed the trial court's ruling on the motion to strike, reinstating the claims against Silverstein and Beinin, except for the claim against Silverstein for re-publishing Beinin's statement.

7/19/2010 - Superior Court order denying Silverstein's motion for summary judgment, holding, inter alia, that "the law of the case doctrine requires this Court to find that Plaintiff has established the existence of libel per se."  

(NOTE: Joel Beinin is the Director of Middle East Studies at the American University in Cairo, where one of the authors of this database entry attended graduate school.)

On November 14, 2007, BESCR, a court reporting service company otherwise known as Eastwood-Stein Deposition Management, and two of its principals, sued Trisha Goodman, an Oklahoma-based court reporter, and others for statements appearing on Goodman's blog, "Let's Stop Eastwood-Stein."

According to BESCR's complaint, Goodman started the blog in late September 2007 after she allegedly was not paid $2,300 by BESCR for her work. On the blog, Goodman allegedly made statements indicating that BESCR was engaging in fraudulent business practices and was about to be sued by the Illinois Attorney General's Office. She also allegedly encouraged readers to refuse to accept jobs from BESCR and to forward the statements appearing on it to other court reporters, videographers, interpreters, and technical support people.

BESCR sued Goodman for libel, interference with contracts and business opportunities, and other torts. In addition to Goodman, the plaintiffs named three other individuals as co-defendants and co-conspirators: Michael Henry, a videographer and former BESCR employee; Barry Simon, another former BESCR employee; and Joan Burke, who has "no recent relationship" with BESCR, according to the complaint. These individuals were named as defendants because of their comments on the blog and distribution of its contents (through links and forwarding) to other court reporters and potential BESCR customers.

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