DC Appeals Court Tosses Silly Lawsuit Woman Filed Against Google Because Someone With A Blog Said Mean Things

from the not-how-it-works dept

In late 2016, we wrote about the positively silly case that lawyer Harry Jordan filed on behalf of his client, Dawn Bennett, in which she sued Google because a guy she had once hired to do some search engine optimization work for her, and with whom there was a falling out, later wrote a mean blog about her and her company. As we noted, Bennett did not sue that person -- Scott Pierson. Instead, she and Harry Jordan went the Steve Dallas lawsuit way of filing against some tangential third party company, because that company is big and has lots of money. In this case, it meant suing Google, because Pierson's blog was hosted by Google.

As we noted, this would be an easy CDA 230 win, because Google is not at all liable for what bloggers using its blog hosting do (we also noted that the lawsuit botched the legal meaning of "defamation" -- which is generally not a good thing to do in a defamation lawsuit). And thus it was of little surprise to see the lawsuit dismissed last summer. It was an easy ruling to make given the status of CDA 230 (which, yes, is now under threat). But, Bennett appealed. And... the results of the appeal are exactly the same as the results in the district court. Case dismissed, quick and easy (in just 10 pages), because CDA 230 makes it obvious that Google is not liable.

Still, as law professor Eric Goldman notes in his post about this ruling, the DC Circuit makes some useful statements about CDA 230 and how it works.

Bennett argues that by establishing and enforcing its Blogger Content Policy, Google is influencing— and thus creating—the content it publishes. This argument ignores the core of CDA immunity, that is, “the very essence of publishing is making the decision whether to print or retract a given piece of content.” Klayman, 753 F.3d at 1359. In other words, there is a sharp dividing line between input and output in the CDA context. Here, the input is the content of Pierson’s negative blog about Bennett’s business; that blog was created exclusively by Pierson. Google’s role was strictly one of output control; it had the choice of leaving Pierson’s post on its website or retracting it. It did not edit Pierson’s post nor did it dictate what Pierson should write. Because Google’s choice was limited to a “yes” or “no” decision whether to remove the post, its action constituted “the very essence of publishing.”

I think it's also worth highlighting another point that the court makes -- which is frequently ignored or misunderstood by people who are now attacking CDA 230 (including members of Congress). CDA 230 is designed to enable sites to monitor and make decisions on moderation without those decisions impacting their liability. In other words, it actually creates a scenario where platforms are more likely to monitor, rather than putting their heads in the sand to avoid "knowing" anything. Indeed, the court uses the "heads in the sand" language:

The intent of the CDA is thus to promote rather than chill internet speech.... By the same token, however, the CDA “encourage[s] service providers to self-regulate the dissemination of offensive material over their services.”... In that respect, the CDA corrected the trajectory of earlier state court decisions that had held computer service providers liable when they removed some—but not all—offensive material from their websites.... Put differently, section 230 incentivized companies to neither restrict content nor bury their heads in the sand in order to avoid liability.

This is such an important point -- and it's good to have it clearly stated in a court ruling. One hopes it still matters after Congress is done mucking with CDA 230.


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  • identicon
    Anonymous Coward, 28 Feb 2018 @ 12:21pm

    Were I to sue someone, picking a big company wouldn't be high on my list, because they have more than enough money to bury someone in legal paperwork.

    Also, why would a lawyer take this case, they don't get paid if they don't win, so why would a lawyer take this case? Unless they are really stupid (or have nothing better to do) they know they would lose.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Feb 2018 @ 12:33pm

      Re:

      The reason for picking a big company is that many of them will take the cheapest option, which is to settle if they cannot get it dismissed easily.

      reply to this | link to this | view in chronology ]

    • icon
      An Onymous Coward (profile), 28 Feb 2018 @ 12:43pm

      Re:

      Not all lawyers work on contingency. That's the beauty of being a lawyer. You can get paid regardless of whether you win. You just maybe get paid more if you do.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Feb 2018 @ 2:13pm

      Re:

      Or Google decides to bury this woman under a true shitshow of legally epic proportions until she's bankrupt owing MILLIONS in legal fees.

      This would be a good thing for Google to do, as it sets a precedent of "come after us with silly claims we WILL STEP ON YOUR FACE", saving them money in the long run.

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 28 Feb 2018 @ 12:35pm

    "Put differently, section 230 incentivized companies to neither restrict content nor bury their heads in the sand in order to avoid liability." -- Is SAME as I say. But Techdirt construes 230 to be ABSOLUTE immunity, plus power to CONTROL all speech.

    Since YOU put that in, yet again making effort to trot out the pro-corporatist position, I'm on topic:

    I've said that we agree "platforms" are not liable for content "users" publish -- so long as comply with "good faith" requirement and ALL OTHER law -- but YOU believe that corporations can IGNORE ALL without liability.

    Clearly the judge sees the middle ground that I do. There is in any event over-arching / related law. Corporations are not licensed to be a new form of royalty and rule over "natural persons".

    You simply re-phrase to exclude that middle, totally way that corporations want: no requirement to police, no duty to check / act even when complaints are made, no responsibility ever. That's not The Law, kid.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Feb 2018 @ 12:36pm

      Re: "Put differently, section 230 incentivized companies to neither restrict content nor bury their heads in the sand in order to avoid liability." -- Is SAME as I say. But Techdirt construes 230 to be ABSOLUTE immunity, plus power to CONTROL all speech.

      You have no idea what you're talking about.

      reply to this | link to this | view in chronology ]

      • This comment has been flagged by the community. Click here to show it
        identicon
        Anonymous Coward, 28 Feb 2018 @ 12:56pm

        Re: Re: "Put differently, section 230 incentivized companies to neither restrict content nor bury their heads in the sand in order to avoid liability." -- Is SAME as I say. But Techdirt construes 230 to be ABSOLUTE immunity, plus power to CONTRO

        > You have no idea what you're talking about.

        Well, I TRY, snowflake, which is more than you do with your stock one-liner.

        How about you show your awesome expertise? DISH THE TRUTH. Readers are eager for it.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 28 Feb 2018 @ 2:14pm

          Re: Re: Re: "Put differently, section 230 incentivized companies to neither restrict content nor bury their heads in the sand in order to avoid liability." -- Is SAME as I say. But Techdirt construes 230 to be ABSOLUTE immunity, plus power to CO

          You're not very good at trolling are you?

          Random commenter virgin I'm guessing? (or hoping because if you've been doing this for more than week, you're really REALLY bad at it and should quit and go back to whatever you did before - giving handjobs to meth heads for money?)

          reply to this | link to this | view in chronology ]

    • icon
      An Onymous Coward (profile), 28 Feb 2018 @ 12:41pm

      Re: "Put differently, section 230 incentivized companies to neither restrict content nor bury their heads in the sand in order to avoid liability." -- Is SAME as I say. But Techdirt construes 230 to be ABSOLUTE immunity, plus power to CONTROL all speech.

      You're interpreting "incentivized" to mean "dictated" and that is absolutely not true. 230 added no requirements that companies police the content hosted on their platforms. It simply encouraged them to do some good faith policing with the promise they wouldn't be liable for anything they missed.

      reply to this | link to this | view in chronology ]

      • This comment has been flagged by the community. Click here to show it
        identicon
        Anonymous Coward, 28 Feb 2018 @ 12:48pm

        Re: Re: "Put differently, section 230 incentivized companies to neither restrict content nor bury their heads in the sand in order to avoid liability." -- Is SAME as I say. But Techdirt construes 230 to be ABSOLUTE immunity, plus power to CONTRO

        You're interpreting "incentivized" to mean "dictated" and that is absolutely not true

        No, I'm not. I hold exactly as you state: they're to do SOME in good faith, but not liable for every last bit. -- But neither do corporations have unlimited control over what or who goes out: they are to provide SERVICE to the public, not rule over it. Period.

        reply to this | link to this | view in chronology ]

        • icon
          An Onymous Coward (profile), 28 Feb 2018 @ 1:13pm

          > they are to provide SERVICE to the public, not rule over it. Period.

          That part is imaginary. Nothing in 230 says any given platform has to allow anything on their service. Nothing in any other law says that either. Do you think a Christian social network should allow Satanist propaganda on their platform, even if presented in "good" taste?

          reply to this | link to this | view in chronology ]

        • icon
          Gwiz (profile), 28 Feb 2018 @ 1:32pm

          Re: Re: Re:

          But neither do corporations have unlimited control over what or who goes out: they are to provide SERVICE to the public, not rule over it. Period.

           

          Does your wacky theory also apply to corporations that hold copyrights?

          Would the company that holds the copyright to your "$100 million dollar movie" have "to provide SERVICE to the public" by giving free copies to those can't afford to buy one or something similar?

          Inquiring minds want to know because you when you are talking about copyright, you feel that the copyright holder should have 100% control of everything in perpetuity and when you talk about internet platforms they shouldn't be allowed to have 100% control of the platforms they created.

          Bipolar much?

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Feb 2018 @ 12:44pm

      Ugh.

      Damn, that is one abusive application of the subject header.

      reply to this | link to this | view in chronology ]

      • This comment has been flagged by the community. Click here to show it
        identicon
        Anonymous Coward, 28 Feb 2018 @ 12:53pm

        Re: "Put differently, section 230 incentivized companies to neither restrict content nor bury their heads in the sand in order to avoid liability." -- Is SAME as I say. But Techdirt construes 230 to be ABSOLUTE immunity, plus power to CONTROL all speech.

        Ugh. Damn, that is one abusive application of the subject header.

        Techdirt has the length limit now set to 256 characters -- after some fooling around with it that wasted my time -- as found by trial-and-error, since the site will never state anything more informative than the date.

        Anyway, that's a "legal" limit which I have NO control over and why shouldn't I take advantage of it? Any BLAME is due Techdirt, NOT mere users of the site.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 28 Feb 2018 @ 12:55pm

          Re: Re: "Put differently, section 230 incentivized companies to neither restrict content nor bury their heads in the sand in order to avoid liability." -- Is SAME as I say. But Techdirt construes 230 to be ABSOLUTE immunity, plus power to CONTROL all spe

          Dude, get a life.

          reply to this | link to this | view in chronology ]

        • icon
          An Onymous Coward (profile), 28 Feb 2018 @ 1:15pm

          You can't seriously believe that your misuse of a platform feature is the fault of the platform provider.

          reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      Anonymous Coward, 28 Feb 2018 @ 12:46pm

      Re: "Put differently, section 230 incentivized companies to neither restrict content nor bury their heads in the sand in order to avoid liability." -- Is SAME as I say. But Techdirt construes 230 to be ABSOLUTE immunity, plus power to CONTROL al

      I'd better try to be more clear -- this is ME again through magic of TOR -- that key flaw of Masnick's position (not exactly stated here) is that he believes corporations CAN ignore OR "moderate" however choose, where I hold that corporations have actual duty to "police", and that must be done in good faith, in accord with common law and all statute.

      This is easily exampled: Masnick believes that he can ignore the vile ad hom directed at persons, and that he could at any time choose to "moderate" or remove comments, all up to him: he becomes a little King merely because pays for a web-site, rather than giving up SOME control and ownership so soon as makes it available to the public. The Law is that businesses exist only by permission of the public, and in exchange agree to serve the public's good (too), not just "private".

      reply to this | link to this | view in chronology ]

      • icon
        An Onymous Coward (profile), 28 Feb 2018 @ 1:19pm

        Citation needed. Really, you're going to need to provide some kind of justification for these claims. No law says a blog platform has to allow anything and everything be posted on their platform. This runs directly counter to your own argument that that same platform police what is posted. How can a platform deny any message if they're not allowed to deny any at all?

        Again, please provide citations for your claims.

        reply to this | link to this | view in chronology ]

      • icon
        Dan (profile), 28 Feb 2018 @ 2:21pm

        Re: Re: "Put differently, section 230 (blah blah blah)

        where I hold that corporations have actual duty to "police", and that must be done in good faith, in accord with common law and all statute.

        You're free to believe what you like. But if you believe the law requires this, you're simply wrong (though I welcome any citations to applicable and relevant legal authority in the United States). Site owners/operators (be they individuals, partnerships, corporations, LLCs, trusts, or anything else) have no legal duty to "police" comments in any way, but if they choose to do so, are free to do so in any way they choose--in good faith, in bad faith, purely at random, or in any other way they like.

        reply to this | link to this | view in chronology ]

        • identicon
          Thad, 28 Feb 2018 @ 3:15pm

          Re: Re: Re: "Put differently, section 230 (blah blah blah)

          though I welcome any citations to applicable and relevant legal authority in the United States

          Come on, man, you know he's just going to say "COMMON LAW" 73 times.

          reply to this | link to this | view in chronology ]

          • icon
            Dan (profile), 1 Mar 2018 @ 6:56am

            Re: Re: Re: Re: "Put differently, section 230 (blah blah blah)

            The thing is, despite blue's abuse of the phrase, "common law" is a real thing. The common law consists, roughly speaking, of the mass of court decisions in a relevant jurisdiction. Thus, if "common law" requires something, there's a court decision saying so, which can be cited. If "all statute" requires something, then there's a statute that can be cited.

            So, if he can point to a decision since the enactment of the CDA that says, "despite Section 230's protections, site operators have an affirmative obligation to moderate comments made on their site, and that moderation must be done in good faith," then he'd be right. But of course he can't do that, as there is no such decision, which means he's wrong.

            reply to this | link to this | view in chronology ]

            • identicon
              Thad, 1 Mar 2018 @ 10:38am

              Re: Re: Re: Re: Re: "Put differently, section 230 (blah blah blah)

              The thing is, despite blue's abuse of the phrase, "common law" is a real thing.

              So are Section 230, censorship, and globalism, but that doesn't mean he can use those words correctly in a sentence.

              reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 28 Feb 2018 @ 3:22pm

        Re: Re: "Put differently, section 230 incentivized companies to neither restrict content nor bury their heads in the sand in order to avoid liability." -- Is SAME as I say. But Techdirt construes 230 to be ABSOLUTE immunity, plus power to CONTRO

        I knew you couldn’t go two weeks without saying common law, you fucking tool.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 28 Feb 2018 @ 3:37pm

        Re: Re:

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 28 Feb 2018 @ 5:10pm

          Re: Re: Re:

          Thanks. I didn’t have the stomach to go back and look through the Jersey Garbage Dump, that is his post history

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 28 Feb 2018 @ 7:19pm

            Re: Re: Re: Re:

            Nah, the one where he spammed links about the Nunes memo or whatever the hell that shithole was is different. Cops handcuffing teens is something that blue knows he can't bitch about, except for the fact that it appears anti-authoritarian (because criticizing fuck-ups on protocol obviously means you're a hardcore anarchist), so he bitched about his inability to bitch.

            out_of_the_blue just hates it when due process is enforced.

            reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Feb 2018 @ 1:21pm

      Re: "Put differently, section 230 incentivized companies to neither restrict content nor bury their heads in the sand in order to avoid liability." -- Is SAME as I say. But Techdirt construes 230 to be ABSOLUTE immunity, plus power to CONTROL all speech.

      Wow, this is quite the word salad.

      To quote a somewhat infamous film: "I don't think it means what you think it means."

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 28 Feb 2018 @ 1:36pm

        Re: Re: "Put differently, section 230 incentivized companies to neither restrict content nor bury their heads in the sand in order to avoid liability." -- Is SAME as I say. But Techdirt construes 230 to be ABSOLUTE immunity, plus power to CONTROL all spee

        By "infamous," I think you mean "awesome."

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 Mar 2018 @ 4:21am

      Re: "Put differently, section 230 incentivized companies to neither restrict content nor bury their heads in the sand in order to avoid liability." -- Is SAME as I say. But Techdirt construes 230 to be ABSOLUTE immunity, plus power to CONTROL all speech.

      To use a well-worn UK phrase, this sounds like a load of old cobblers. Utter b*llsh*t.

      reply to this | link to this | view in chronology ]

  • icon
    orbitalinsertion (profile), 28 Feb 2018 @ 3:14pm

    I realize this all happens in the arcane and twisted world of the legal professions, but really, it should be damn well obvious that Google isn't liable even if Section 230 never existed.

    It's probably so damn obvious, that this is why 230 was included in Title V. Duh, is my phone company a publisher? Is a utility company or a city a publisher if i graffiti or post flyers? No? Well neither is a hosting service.

    reply to this | link to this | view in chronology ]


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