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Appeals Court Says Topix Can't Be Held Responsible For Overdose Death Of Forum Member

from the tragic-circumstances-don't-create-new-liabilities dept

When a tragedy occurs, it’s human instinct to find someone to blame — even if said tragedy was an accident… or self-inflicted. When Andrew Witkoff overdosed on Oxycodone he obtained from someone he met on a website, his parents understandably looked to hold someone responsible for his death. But they chose to go after the website. And that hasn’t resulted in any closure or remuneration, as Eric Goldman reports.

Seeking to buy Oxycodone, Witkoff did some Google searches and found a Topix forum titled “Oxycontin, Roxicodone, Oxycodone” (Oxycodone forum).” Topix created this forum title, but all of the content in the forum came from Topix’s users. One forum thread discussed where to buy Oxycodone, and Witkoff found a post where Daniel Park offered to sell Oxycodone. Witkoff and Park communicated by email and arranged a physical space meeting to close the purchase. Witkoff overdosed on Oxy and died two days later.

Topix is no stranger to legal maneuvers by parties who feel it should be held responsible for the content created by its users. Historically, this has taken the form of harassment from grandstanding government officials. In this case, it’s the boy’s parents. Both have chosen the wrong target for their actions. The protections afforded by Section 230 of the CDA explicitly bar websites from being held responsible for the actions of users.

The district court arrived at that conclusion last year. The Witkoffs appealed, only to find the higher court similarly inclined to find in favor of Topix, despite their use of a somewhat novel legal argument.

Plaintiffs contend defendant here is liable because it created the offending content—the Oxycodone forum. Thus, plaintiffs assert they are bringing a cause of action against defendant as an information content provider. Plaintiffs contend the allegation that defendant’s creation of the Oxycodone forum is sufficient to state a claim for public nuisance.

“Public nuisance” also includes the distribution of controlled substances, as Goldman points out. The problem is that — even though Topix created the forum where Witkoff met someone who would sell him Oxycodone — all content within the forum was generated by users. Public nuisance or not, Topix did not create the content, arrange the meeting between Witkoff and the other forum user or sell drugs to Andrew Witkoff.

Plaintiffs seek to hold defendant liable for “the illegal sale of controlled substances” under a nuisance theory. (Civ. Code, § 3479.) In the first amended complaint, plaintiffs allege that defendant aided and abetted illegal drug trafficking by failing to monitor or prohibit such communications. However, the illegal discussions concerning controlled substances that allegedly occurred on defendant’s Oxycodone forum derives from third-party threads created by the Web site’s users. There is no allegation that defendant controlled or created the content in the threads. The gravamen of plaintiffs’ allegations is to hold defendant liable as publisher of content from third parties. Immunity under section 230(c)(1) applies in such situations.

The court also points out that, although the end result was the illegal sale (and illegal purchase) of a controlled substance, simply discussing controlled substances is not a criminal act.

Oxycodone is a Schedule II controlled substance, which means it can be obtained legally for medical use. Defendant’s creation of an Oxycodone forum would encourage discussion of Oxycodone by its users. Discussion of Oxycodone is not per se illegal. Defendant is entitled to the section 230(c)(1) immunity as to plaintiffs’ claims.

As for the seeming oddness of Topix creating a forum for the discussion of Oxycodone, Goldman obtained a statement from a Topix rep. Basically, the site auto-generates any number of “topics/x,” including the 842 forums it has algorithmically created to discuss a number of prescription drugs. If you’re in the business of “generating” third-party content, any topic that starts a conversation is a win, no matter how sketchy it might appear from the outside. And, as the Second Circuit Appeals Court notes, simply discussing controlled substances is not illegal, even if any number of aggrieved parties would desperately like this to be true.

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Comments on “Appeals Court Says Topix Can't Be Held Responsible For Overdose Death Of Forum Member”

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Anonymous Coward says:

These parents who want to blame others for everything that their child does on anything and anyone other than the true source of where the blame falls, on them. Okay not really only on them the other source of blame is the kid who does something stupid. Try being a parent and not seek to push your failures onto others, it wastes time, money, and pet causes that serve no purpose.

tqk (profile) says:

Re: Re:

These parents who want to blame others for everything that their child does on anything and anyone other than the true source of where the blame falls, on them. Okay not really only on them the other source of blame is the kid who does something stupid.

I agree with this, but it’s not the problem. The problem is innocent third parties get dragged into this despite the law specifically excluding them from liability. The first judgment affirmed this, yet they still had to suffer through an appeal anyway.

At least the ambulance chasers cleaned up, by why the court allowed this to happen is the question that needs answering. Why does !@#$ like this still go on? This isn’t new. When can we expect this to be fixed?

Monday (profile) says:

Comments made so far...

Anonymous Coward; Craig Welch; tqk; I could say I agree with you all to the extent that they attacked the wrong target, but, these Parents are grieving with the loss of their “child” – could have been thirteen years old or eighteen years of age, it really doesn’t matter. The Parents felt they could get some closure by arguing that the website created the content that “aided and abetted illegal drug trafficking”, and now the couple has to come to terms with the failure “[t]o monitor or prohibit such communications”. This should be the place where the Parents of this “child” begin “generating … a conversation”. Do they have the strength to start this dialogue? I don’t know, neverthelss, someone should certainly have told them that “this is gonna hurt a little, but you are making a mistake.”

I feel for them. I really do. No parent wants to bury their child before them…

Anonymous Coward says:

Re: Comments made so far...

“The Parents felt they could get some closure by arguing that the website created the content that ‘aided and abetted illegal drug trafficking’ “

So its ok to use the legal system for “closure” versus redressing legal wrongs. Since one side used it for “closure”, shouldn’t the website be able to counter-sue the parents for “failure to sufficiently monitor their child”?

There are times when it is reasonable to sue over the death of child. This wasn’t one of them.

Craig Welch (profile) says:

Sure, the parents were and are grieving. I’m sorry for them also. Which is not relevant to the issue, which is ‘who can we find to sue, even if it’s not their fault’. And what is this affectation called ‘closure’ of which you write? Suing someone successfully doesn’t bring ‘closure’, it brings ‘money’. Oh.

They’ve tried before to sue over this death. http://www.hollywoodreporter.com/news/wrongful-death-lawsuit-hits-la-608257

From another report ‘… Witkoff, who allegedly left the facilities unattended, shirked his urine tests and bought illicit drugs online. According to the complaint, Witkoff asked for, and was given, the knife he used to crush and inhale the pills that later killed him’.

Again, it’s clear who was responsible for Witkoff’s death. Witkoff.

Monday (profile) says:


Craig Welch;

First, thanks for the link. Very interesting read. I’ve also read the entire complaint, and whoa!

They were spending 55k$ per month to house Andrew Witkoff, and he was obviously a high risk, and failed the House’s tests repeatedly. The parents should have been aware of this, and asked for better protective measures.

Now, again, you are right! These parents look like they are upset and want someone to blame. It just read like the comments were jumping to conclusion.
You were making an objective comment; you had the facts, and I bet you other two also have – now I do as well, and yep, this sounds like a witch hunt, and it just might be after money, but I think they want someone else to blame because the Parents didn’t look into the “best in America” rehab option; wasn’t thoroughly explored – they thought their money did the talking. The facility isn’t a prison and expected precautions aren’t required / asked for cautions. A hospital does these for you, but some house in Malibu, or wherever it is, doesn’t have to unless you ask them to.

I’m not PC. I don’t care about another overdose, although a lifelong friend of mine just OD’d.
It stifles free speech, and I just thought the first comments were a little calloused and were not taking grief and its power, into account. People act ‘out of character’ because of grief. I think their Lawyer might be preying on this; exacerbating the wound, and pushing the parents into suits.

I’m kinda convinced that it’s about money, and not taking much, if any, or all, of the responsibility. It was rehab, not prison. The attack on the website appears to be a ‘Hail Mary’, because a drug addict 1)was able to use Google was to find a website (note: not hard) 2) procure drugs 3) crush them and die. It doesn’t seem like rocket science, and no levity for this dead, but it looked kinda inevitable – the ending that is.

I’ve also had a quick look at Topix, and it’s a big place.

It looks like the Parents want their entitlement extended posthumously…

Thanks again for the link.

Manabi (profile) says:

Re: Re: Reply:

The thing that really gets me about this one is that it doesn’t sound like it was the parents’ fault at all that he overdosed. They had gone above and beyond what would be expected of any parent, spending huge sums of money trying to help him deal with his drug problem.

So ultimately the only cause here is: their son. No one else is to blame, it all falls on him.

I do feel sorry for them losing their child, but their lawsuits are making me lose that sympathy fast. At this point it does look like nothing but trying to cash in on their son’s death, which is disgusting.

Mari Miller says:

RE; Bad Courts and police!

My sister called 911 because she was getting beat up. When the Fat Tick sheriff arrived her finger was broken. He said if she had a black eye or bruises he would charge him. Her
daughter took her to the hospital. They had to put a cast on her. My sister went to the Town Hall meeting and told them what he said and how she was treated, the Sheriff got off.A few month later, My sister Kathleen Linderholm, was found dead in her home, she was in her night gown,and suffocated with an outdoor trash bag covering most of her body. When my husband and and I arrived to DeLeon, TX. Sheriff Dickey said “I sure hoped this was a suicide it would make this alot easier”. My husband and I were appalled! And surprise…………..it was ruled a suicide We can’t sue, but maybe you can. Our heart is with you!!! Please let us know us what happens with you!

Lucifer (user link) says:

Appel Court

Fuck the entire, 7 billion people, on the planet. Thats right! I hate everyone. I come across, some random stranger. Who starts acting up; for no reason. If I try, to flirt. With some random, idiot woman; on Eskimi or Facebook. All I get, is insults. When I didn’t do anything. To deserve, the “displaced aggression”. Fuck the human race. Fuck Feminists and Homosexuals! I HATE EVERYONE

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