Two Courts Disagree On Whether Or Not A Website Can Be Forced To Remove User-Created Defamatory Content
from the section-230 dept
A little over a year ago, we discussed a district court ruling that said that the site Ripoff Report (and its parent company XCentric) was not required to remove content, even though the content had been found (in a default judgment, since the defendants did not show up) to be defamatory. The court ruled that Section 230 clearly protected Ripoff Report as a service provider from being liable for user actions. While some worried that this meant that it would be possible for defamatory content to not be removable, this seemed like an overreaction, and targeted the wrong issue. The real problem was with the default judgment practice, and the idea that just because you can’t find the people actually liable, some people think it’s okay to blame someone else instead. That’s just not right.
Last week, in an appeal on that original case, the appeals court basically ruled the same way: Ripoff Report has no requirement to remove the content judged to be defamatory, because it is not a party to the lawsuit, and thanks to Section 230 it cannot be a party to that lawsuit. However, it is notable that Ripoff Report has put additional information on that page, indicating that the content was found to be defamatory, which more or less should alleviate much of the concern. Separately, as Eric Goldman notes in the link above, the fact that it’s possible that defamatory content may be online with no way to take it down probably isn’t a huge concern, as the situation is unlikely to happen all that frequently. Most sites seem willing to take down such content.
Separately, as Paul Levy astutely points out in his own analysis of the case, the courts in various states have made it clear that in order to deal with that pesky First Amendment issue, there shouldn’t even be injunctions against defamatory speech — only monetary awards:
I am much less worried about the normative consequences of holding that the web host can’t be enjoined, because there is another significant problem with extending either injunction to Ripoff Report. There is a hoary doctrine holding that “equity will not enjoin a libel” — that no matter how false and hurtful a statement may be, the only proper remedy for defamation is an award of damages, not an injunction.
And, indeed, this is probably how it should be. The way to deal with such speech is more speech.
Levy’s link, unfortunately, shows that some courts don’t recognize this, even in states whose laws are under this maxim. Levy notes that the day after the Seventh Circuit ruled in favor of Ripoff Report in the lawsuit above, a Florida state court granted a rather hasty temporary restraining order against Ripoff Report/XCentric, in a case with some similarities. It again involved charges of defamation. Ripoff Report was sued, but removed from the lawsuit thanks to Section 230. The woman who actually wrote the comment was also sued, and eventually settled, with a promise that she would make “good faith efforts” to remove content. Ripoff Report, famously, does not remove content (though, Levy notes that’s not entirely true), so it refused. The plaintiff, John Giordano, asked the court for a temporary restraining order against Ripoff Report, requiring it to remove the comments. The court gave Ripoff Report one day’s notice, before holding a hearing (Ripoff Report’s lawyer had to call in from Arizona), and the court then granted the restraining order. Levy, again, explains why this ruling was clearly in error:
Part of the problem with the reasoning is that it is circular — Xcentric is being ordered to take down the posting because it failed “to comply with [the previous] order,” but that order did not compel XCentric to do anything; thus there was nothing for it not to comply with. And in other respects, the reasoning is just wrong. The order expressly treats XCentric as the “publisher” of the statements in defiance of the statute’s express command that a provider of interactive computer services shall not be “treated” as the publisher of content provided by another; and the courts addressing section 230 have consistently agreed that the decision whether to remove posts is part of the “publisher” function that Congress intended to leave to web hosts’ discretion. Nor does the court explain how it can issue the equitable remedy of an injunction — especially an injunction forbidding speech — against a party that has not been held liable for the speech.
Moreover, allowing motions for injunctive relief is inconsistent with the statutory language providing an immunity from suit as well as from liability, and with one of the basic reasons why host immunity is such an essential element of the system of online freedom of speech. Even if the host is protected against damages claims, the very need to respond to motions for injunctive relief imposes the expense of litigation and thus threatens to enable the heckler’s veto that animated Congress to adopt Section 230 in the first place, and to make it a part of American law so fundamental that a foreign defamation judgment cannot be enforced in the United States unless it meets section 230’s requirements. And hosts are understandably chary of being enjoined, because even if it is s very specific statement that has already been held to be false that is enjoined, the host has to worry about being held in contempt if somebody later posts that same statement online.
Also curiously not addressed by the Florida court was why it was entitled to issue a prior restraint on less than a full evidentiary hearing on the merits…. [In] many jurisdictions, the old rule that “equity will not enjoin a libel” remains good law to this day. But even the jurisdictions that allow the entry of a permanent injunction against speech after the defendant has had his day in court and a jury has decided that the enjoined speech is false, consistently hold that a preliminary injunction is a prior restraint. And as the Supreme Court said in Organization for a Better Austin v. Keefe, 402 U.S. 415, 419-20 (1971), in overturning a preliminary injunction against leafleting on First Amendment grounds, “No prior decisions support the claim that the interest of an individual in being free from public criticism of his business practices . . . warrants use of the injunctive power of a court.”
Hopefully this temporary restraining order is overturned.
The larger point remains, however. Section 230 remains not just a good, but an important law in protecting third parties from being held liable for the speech of others. The worries that it creates problems in cases such as the first one above seem overblown. Such situations are not only rare, but it seems clear that they can be dealt with by people adding additional details that explain the nature of the content in question. And, in the end, that fits best with the First Amendment. The response to “bad” speech should not be to block it, but to encourage more speech. That’s the end result of Section 230, and that should be seen as a good thing.