Free for a Fee

Technology & Marketing Law Blog
Eric Goldman
July 30, 2020
La Liberte spoke at a city council meeting. A photo of her speaking went viral because a “social media activist” posted the photo with a caption that she said racist things about a minority teenager in the photo. That turned out to be false. Nevertheless, MSNBC TV host Joy Reid retweeted the initial post (which is not at issue in this case); then she made two separate posts about the photo, each of which made the claim that La Liberte was making racist statements about teen. La Liberte sued Reid for defamation.

Reid invoked Section 230, but the issue is pretty straightforward. Reid solely authored the two posts repeating the claims she saw elsewhere, so she’s the ICP in the equation.

To get around this, Reid argued that her post “merely repeated what countless others had previously published before her, including Vargas and at least eight other individuals who specifically stated that La Liberte made racial slurs at the Council Meeting.”

Not surprising, the Second Circuit shreds this:Case citation: La Liberte v. Reid, 2020 WL 3980223 (2d Cir. July 15, 2020)

The post Section 230 Doesn’t Protect Repeating Rumors–La Liberte v. Reid

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It seems that recently there has been a significant number of libel claims that are all based on an unfavorable portrayal of a real person in a work of fiction – television program of motion picture – that is based on real life events.  There is Mossack Fonseca & Co., S.A. et al v. Netflix Inc ., which is based on the streamer’s portrayal of Panamaian lawyers at the center  the “Panama Papers”, leaked documents , that outlined their practice of helping clients move money to avoid tax liability.  The defamation suit claims the program falsely depicts both men as engaging in criminal activity, including subplots that link them to drug cartels and Russian gangsters with Mossack and Fonseca depicted in a “cartoonish” and “palpably farcical” manner that made it obvious the portrayal was fictionalized and intended to be comedic. . . .

Despite the producer’s win on appeal, this case is an example of the risks inherent in creating a work of fiction, including fictional characters, that is based on real world events.  It also provides examples of steps producers can take to prevent being on the losing side of a defamation claim.

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The content in this post was found at https://www.lexblog.com/2020/07/09/the-wolf-of-wall-street-defamation-suit-the-risk-of-an-inspired-by-character-in-movies-and-tv/ Clicking the title link will take you to the source of the post and was not authored by the moderators of freeforafee.com

Technology & Marketing Law Blog
Eric Goldman
June 25, 2020
In this well-publicized case, Rep. Devin Nunes sued Liz Mair (@LizMair) and the accounts @devincow (“Devin Nunes’ Cow”), and @DevinNunesMom for various tweets. That lawsuit is dubious. Even less wisely, Nunes also sued Twitter for these third-party tweets. The judge gave Nunes a first-hand tutorial in Section 230 and dismissed Twitter. The case wasn’t close.

The court rejects Nunes’ key arguments:

• Courts can grant the Section 230 defense on a motion to dismiss because it is an immunity from suit. This issue has vexed courts from time to time (remember the tortured Barnes v. Yahoo ruling?). At this point, most courts will grant Section 230 on a motion to dismiss when the defense is apparent on the complaint’s face. (Like when a plaintiff tries to hold Twitter liable for third-party tweets).
• Nunes tried the common “conservative” talking point that Twitter lost its eligibility for Section 230 because it made editorial decisions about third-party content (the “it’s no longer a platform, it’s become a publisher” argument you find routinely featured on @BadLegalTakes and @BadSec230Takes). The court responds simply: “Plaintiff seeks to have the court treat Twitter as the publisher or speaker of the content provided by others based on its allowing or not allowing certain content to be on its Internet platform. The court refuses to do so” (citing Zeran). THERE IS NO PUBLISHER/PLATFORM DISTINCTION IN SECTION 230 JURISPRUDENCE AND NEVER HAS BEEN. Anyone suggesting otherwise deserves to be posterized on @BadLegalTakes and @BadSec230Takes.
• Nunes tried another popular “conservative” talking point that Twitter exhibited viewpoint bias against him, and that means Twitter should lose Section 230’s protection. The court says that the Nemet Chevrolet v. ConsumerAffairs court found Section 230 even when the plaintiff alleged bias.

The opinion concludes with a curious statement: “The court further finds that 47 USC Section 230 (c)(2) provides immunity for all civil liability and therefore Twitter is immune from Plaintiff’s negligence claim.” This sentence makes more sense if the court meant Section 230(c)(1) and not Section 230(c)(2). Zeran and Barnes both rejected negligence claims on (c)(1) grounds. If the court meant what it said, this sentence seems likely to exacerbate “conservatives’” baffling obsession about Section 230(c)(2).

Case citation: Nunes v. Twitter, Inc., CL19-1715-00 (Va. Cir. Ct. June 24, 2020)

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Technology & Marketing Law Blog
Eric Goldman
April 21, 2020

Whitepages compiles and generates “background reports” on people, remixing content from a database of public and private records that allegedly incorporates 2B+ records/month. In response to searches on people’s names, Whitepages provides free previews, such as this one included in the court opinion (this is a truncated view–it goes on for 3 pages):

Much of the free preview provides links indicating that more information about the person may be available behind Whitepages’ “premium” paywall. Thus, the plaintiffs assert that the free preview acts as advertising for the premium service.

Instant Checkmate runs a similar service to Whitepages. The interface is different, but the plaintiffs still characterize the free preview as advertising for the paywalled database.

The plaintiffs claim that the free preview violate Illinois’ publicity rights statute by displaying people’s personal data in the “ads.” The defendants moved to dismiss. This case reminded me a little of the uncited Facebook Sponsored Stories case (Fraley v. Facebook)….

Section 230. The court might have said that Section 230 doesn’t apply to publicity rights claims as IP claims (which is probably true everywhere except the 9th Circuit), and the court doesn’t address the closely analogous FTC v. Accusearch case denying Section 230 protection for the sale of telephone call records. Instead, citing the terrible 7th Circuit Huon decision, the court says “Whitepages did not act as a mere passive transmitter or publisher of information that was ‘provided by another information content provider.’ Rather, it is alleged to have actively compiled and collated, from several sources, information regarding Lukis. The CDA therefore does not shield Whitepages from liability.”

Case citation: Lukis v. Whitepages Inc., 2020 WL 1888916 (N.D. Ill. April 16, 2020)

Technology & Marketing Law Blog
Eric Goldman
April 16, 2020

… today’s pro se lawsuit, like numerous lawsuits preceding it, goes nowhere and gets a quick dismissal.

The plaintiff says that TheDirty hosts a service that it knows “libels” people. This sets up an easy Section 230 defense. The court’s analysis of Section 230:

federal law forbids defamation claims against host or platform website operators such as Dirty World, such as those alleged here, under the Communications Decency Act, 47 U.S.C. § 230 (the “CDA”). Dirty World cites multiple cases explaining the reasons underlying CDA’s prohibition. Conclusory and speculative allegations that the host or platform website operator must have created the speech is not sufficient to state a claim. [Kimzey v. Yelp!] Plaintiff has not plead facts here that “tend to demonstrate that the” post “was not, as is usual, authored by a user.” Further, the possibility that the posts were created by the website owner is not sufficient for a defamation claim to proceed against a host or platform website operator. [Nemet Chevrolet, Ltd. v. Consumeraffairs.com]

The First Amended Complaint’s allegation that “it is evident” that Dirty World “itself places comments on the webpages that are posted on their website www.thedirtyarmy.com” because the phrase “The Dirty Army” is present on Dirty World’s website and also its Facebook page is not sufficient to defeat CDA immunity

A parallel copyright claim fails because the complaint didn’t allege a copyright registration. ..

Case citation: Laake v. Dirty World LLC, 2020 WL 1866124 (D. Ariz. April 14, 2020). The complaint. See also the court’s refusal to add GoDaddy as a defendant (magistrate report; district judge’s approval).

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LexBlog
J. Alexander Lawrence
November 12, 2019

A recent decision from a federal court in New York highlights the limits social media users enjoy under Section 230 of the Communications Decency Act (CDA). The case involves Joy Reid, the popular host of MSNBC’s AM Joy who has more than two million Twitter and Instagram followers, and the interaction between a young Hispanic boy and a “Make America Great Again” (MAGA)–hat wearing woman named Roslyn La Liberte at a Simi Valley, California, City Council meeting.

The case centers on a single re-tweet by Reid and two of her Instagram posts.

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Technology & Marketing Law Blog
Eric Goldman
February 4, 2020

This is a prisoner pro se lawsuit. “The Complaint avers that beginning February 28, 2014, Google identified Chukwurah as a ‘a triple murderer serving 50 years in a Maryland,’” allegedly because of false court documentation. The court explains:

the Court, at best, may plausibly infer that Google amounted to the search engine which linked Chukwurah’s name to content created and published by the Circuit Court. Even Chukwurah concedes that Google “is a search engine who didn’t start this defamation.” Thus, the CDA precludes the common law defamation claims against Google as a third-party interactive computer service provider…

Chukwurah, in response, seems to argue that the CDA does not bar his claims because Google created the platform that “enabled the defamation of [his] name in a demonizing manner [g]lobally.” But this is precisely the service provider’s role that the CDA aims to protect. Where, as here, a lawsuit seeks to hold the provider liable for decisions about posting content created by a third party, the CDA precludes the claim against that provider.

The court deftly sidesteps the platform vs. publisher dichotomy, which makes sense because that dichotomy is asinine and incoherent. As the court succinctly says, Section 230 immunizes lawsuits that seek to “hold the provider liable for decisions about posting content created by a third party.” Call it a platform or a publisher; it doesn’t matter. The result is the same either way: Section 230 preempts the claim.

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Tech Dirt
Berin Szoka, Ashkhen Kazaryan, and Jess Miers
Feb, 21, 2020

The Department of Justice held a workshop Wednesday: Section 230 – Nurturing Innovation or Fostering Unaccountability? (archived video and agenda). This was perhaps the most official “Airing of Grievances” we’ve had yet about Section 230. It signals that the Trump administration has declared war on the law that made the Internet possible.

In a blistering speech, Trump’s embattled Attorney General, Bill Barr, blamed the 1996 law for a host of ills, especially the spread of child sexual abuse material (CSAM).

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Tech Dirt
Tim Cushing
Nov 15th 2019

When is it defamatory to call people “racist douchebags?” Well, let’s start with the “douchebag” part. This is always a statement of opinion and never actionable. . .

Calling someone a racist is almost always a statement of opinion. Unlike calling someone a felon or a child molester, claims of racism are based on perception. This makes them closer to a statement of opinion than an actionable fact.

So, calling people “racist douchebags” isn’t defamatory.

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Eric Goldman
Technology & Marketing Law Blog
September 6, 2019

The court summarizes the facts:

King alleges Facebook removed multiple posts by him, and temporarily suspended his Facebook access on several occasions in 2018, for posts that Facebook deemed a violation of its terms of service (“ToS”). The crux of his claim is that Facebook has violated its ToS in removing his posts and suspending his account, and that Facebook treats black activists and their posts differently than it does other groups, particularly white supremacists and certain “hate groups.”

This is an easy Section 230 dismissal:

• ICS Provider: King admitted.
• Publisher/Speaker claims: Yes, because each claim “is based on Facebook’s provision of the service for use by others or its moderator decisions on which posts to remove or not and which accounts to suspend or not” (cites to Brittain v. Twitter and Fields v. Twitter)
• Third-party content: “all of King’s allegations rest on treatment of speakers (who make posts or otherwise provide content) and differential treatment of specific posts made either by himself or by other Facebook users”

Case citation: King v. Facebook, Inc., 3:19-cv-01987-WHO (N.D. Cal. Sept. 5, 2019)

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