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Neville Johnson Pens Article on Web Defamation for California Lawyer (May 2013)

Posted by Johnson & Johnson, LLP | May 16, 2013 | 0 Comments

Remedies for Web Defamation

California Lawyer

May 2013

By Neville L. Johnson

The era of anonymous defamation and online impersonation has arrived. Given that the Internet provides virtually unlimited access to information, it is no surprise that claims of defamation and invasion of privacy through this medium have exploded. Unlike in traditional newsprint, where the harmful content is eventually discarded, injury inflicted via online posting continues in perpetuity, causing victims to suffer continuing harm. What, if anything, can a lawyer do to protect a client stung by Web-based bad-mouthing?

Key Statute
At the core of all online liability cases is section 230 of the federal Communications Decency Act (CDA) which states that “no provider … shall be treated as the publisher or speaker of any information provided by another content provider.” This language grants every Internet service provider (ISP) immunity from liability for defamation and invasion of privacy. (47 U.S.C. § 230.) Since the CDA's passage in 1996, ISPs have been using their section 230 immunity as an affirmative defense against defamation claims, thereby reducing the incentive for self-policing.

Examples abound: Take the case of a successful attorney who was incessantly taunted by a disgruntled former suitor on a website almost entirely dedicated to the attorney's defamation. The defamer continuously changed ISPs, making it impossible for the attorney to enforce injunctive relief. In another situation, a California resident was impersonated on Facebook. Such personal attacks have a significant effect on the subject's professional life, and they can cause extensive personal stress. This type of impersonation has become so widespread that a number of groups have sprung up to raise awareness and support the victims – Stalking Victims Sanctuary and Parent's Guide to Protecting Children's Privacy among them.

But what about the victim's legal rights? The reality is that the current legal framework makes it difficult for victims in these cases to recover damages.

Strong Immunity
Section 230 provides near blanket immunity for website hosts. Immunity even extends to ISPs that affirmatively choose to re-publish information. In one case, an alternative medicine advocate named Ilena Rosenthal posted to her message board a defamatory article that had been published elsewhere about two “quack” doctors who opposed her practices. Even though Rosenthal took an active role in selecting and disseminating the article on her board, she was provided section 230 immunity because she was found to be “a mere distributor” of content. (Barrett v. Rosenthal, 40 Cal. 4th 33 (2006).)

Immunity for Internet service providers even protects those who host unlawful material. For example, when Craigslist was sued for hosting offensive and racist housing advertisements stipulating “NO MINORITIES,” the popular posting site invoked section 230 immunity. The court granted it, reasoning that Craigslist was merely republishing content provided by others. (Chicago Lawyers' Committee v. Craigslist, 519 F.3d 666 (7th Cir. 2008).) In a corollary case, Myspace was held to be immune from liability for the sexual assault of teenage girls who had met their assailants through the social networking website. The court granted immunity to Myspace because under section 230, it could not be liable for the publication of third-party content. (Doe II v. Myspace, Inc., 175 Cal. App. 4th 561 (2009).) These rulings illustrate not only the scope of immunity granted by section 230, but also the offensive behavior it has facilitated.

Trial lawyers have alleged a broad range of torts in an effort to circumvent CDA immunity, but with little success: Courts have rejected claims for declaratory and injunctive relief. (See Noah v. AOL Time Warner, Inc., 261 F. Supp. 2d 532, 540 (E.D. Va. 2003).) In addition, claims for negligence, negligent misrepresentation, interference with business expectancy, contractual liability, misuse of public funds, nuisance, and premises liability have also proved unavailing. (See Doe v. America Online, Inc., 783 So. 2d 1010, 1013-17 (Fla. 2001); Schneider v., Inc., 108 Wash. App. 454 (2001); and Kathleen R. v. City of Livermore, 87 Cal. App. 4th 684, 698 (2001).)

Tough Road
In light of these developments, is there any way to succeed on an Internet defamation claim? The quick answer is: not easily.

Given the broad immunity contained in the communications act, few courts have held ISPs responsible for damages inflicted by posted content. However, it has happened. The Ninth Circuit has found that a website acting as a “content provider” rather than a mere “re-publisher” does not have immunity. In that case, the website “filtered” the results displayed to users based on the preferences they selected. The court reasoned that such a “collaborative effort” fell outside the protection offered under section 230. (Fair Housing Council v. Roommates, Inc., 521 F.3d 1157 (9th Cir. 2008).)

Although Roommates demonstrates that defamation lawsuits against ISP hosts are possible in cases where the provider affirmatively acts to create content, substantial barriers remain. For one, many online posters are anonymous. Moreover, plaintiffs often face burdens both in establishing jurisdiction and in defending against the inevitable anti-SLAPP motion.

Anonymity of Posters
Although the law allows defamation victims to claim damages against the poster (instead of the ISP), this is not always feasible because the poster may be broke or of limited means. To compound the problem, there are strong protections for the anonymity of online posters, often making it impossible to uncover the person's true identity. In California, if a plaintiff issues a subpoena commanding an ISP to identify a poster, and a motion to quash has been filed, the plaintiff must give notice to the poster and establish a prima facie case of defamation before the poster's identity will be released. (See Krinsky v. Doe 6, 159 Cal. App. 4th 1154, 1172 (2008) (discussing plaintiff's requirements).) These requirements make Internet defamation and privacy cases more costly and protracted, as the victim must run the gauntlet before addressing the substance of a real complaint.

Jurisdictional Barriers
When defamatory material is posted on the Internet from another state, asserting jurisdiction in the plaintiff's home state can be difficult. To establish personal jurisdiction, the injured party must satisfy the Supreme Court's “Calder effects test,” which requires that the plaintiff prove the defendant “purposefully directed” the publication toward the forum state. (See Calder v. Jones, 465 U.S. 783 (1984).) Although this test is more flexible than the “minimum contacts” standard, it still presents a substantial hurdle. If the plaintiff cannot establish both that the defendant engaged in “conduct expressly aimed at or targeting the forum state” and “intent to cause harm in the forum,” the court will dismiss the case. (Pavlovich v. Superior Court, 29 Cal. 4th 262, 271 (2002).)

The Anti-SLAPP Statute
In California, the anti-SLAPP statute (Cal. Civ. Proc. Code § 425.16) presents a serious problem to plaintiffs considering litigation for defamation that may be related to public issues. This law allows a defendant to file an early motion to dismiss, provided the challenged activity is constitutionally protected speech. (§ 425.16(b)(1).) Once the motion is filed, the plaintiff must show a reasonable probability of winning the underlying action. Should the plaintiff fail, the defendant is entitled to costs as well as attorneys fees. (§ 425.16(c)(1).) Moreover, the filing of an anti-SLAPP motion generally stays discovery until the motion is resolved. (§ 425.16(g).) The anti-SLAPP statute is a powerful defensive tool that can delay the underlying defamation action – sometimes for years. (See Grewal v. Jammu, 191 Cal. App. 4th 977 (2011).)

Injunction Barriers
A common option for plaintiffs is to include a request for injunctive relief to force a “takedown” of the offensive post. However, some ISPs are so emboldened by their CDA immunity that they disregard such requests (especially if they are not parties to the litigation).

One of the most egregious examples of this phenomenon is . The consumer-oriented website has the reputation of not only being host to many instances of Internet defamation, but also being cavalier about regulating the content on its site – even after becoming aware of defamatory publications. In one case, the victims of defamation secured court injunctions against three websites that hosted defamatory content. However, when they asked another court to enforce the injunction, it was determined that was not legally required to respect the injunction, as the site was not acting in “active concert” with the poster. (Blockowicz v. Williams, 630 F.3d 563 (7th Cir. 2010).)

In light of these current challenges – including the broad scope of the CDA and the numerous other issues that arise – legal recourse against online defamation is exceedingly difficult. Although some remedies are available, as a practical matter most plaintiffs will be left at the mercy of the Internet service provider to take down the content voluntarily. This is likely to remain the case until the legal protections for ISPs are altered.

Looking Ahead
Because there are few effective remedies for Internet defamation, businesses such as have emerged to offer extra-legal solutions to online smear campaigns. Such sites work to “push down” defamatory content in Web search results to make them less visible. The very existence of such services is indicative of the law's failure to stem the tide of Internet libel. For injured plaintiffs who seek legal redress, few alternatives are available.

Nonetheless, a recent case may create a small window of opportunity. In a rare decision, the court in Jones v. Dirty World Entertainment Recordings, LLC (840 F. Supp. 2d 1008 (E.D. Ky. 2012)) denied summary judgment on section 230 immunity grounds to the defendant because the website went beyond mere hosting, and “specifically encouraged development of what is offensive about the content.” (840 F. Supp. 2d at 1012.) In reaching this decision, the court weighed three factors: the very name of the site encouraged defamatory content; the site selected which posts to publish, and added eye-catching “taglines”; and periodically added “comments” to many posts to increase the dialog of defamatory content. Although this case is arguably in conflict with mainstream case law regarding section 230, it may serve (along with the decision) as a template for future plaintiffs who seek to avoid dismissal under the CDA.

Suing Abroad
Another option is to bring suit in a foreign court. The United Kingdom, for example, has more plaintiff-friendly libel laws, which makes success in defamation lawsuits less difficult for injured claimants. (Siobhain Butterworth, “A Minor Triumph For Libel Reform,” The Guardian, March 16, 2011.)

Procedurally, the U.K. maintains a multiple-publication rule, allowing multiple claims to be brought before the courts, even if the statute of limitations has passed on the first instance of publication. (See Duke of Brunswick v. Harmer, 117 E.R. 75 (1849).) This stands in stark contrast to the United States' “single publication” rule, which allows only one cause of action for libel, regardless of whether the content is republished. (See Lori A. Wood, Cyber-Defamation and the Single Publication Rule, 81 B.U.L. REV. 895, 897 (2001).)

English law is also more favorable to defamation plaintiffs substantively. In American courts, the plaintiff bears the burden of proof, whereas British courts reverse this burden. (See Swanson, The Burden to Prove Libel, 20 Cardozo J. of Int'l & Comp. L. 71 (2012).)

However, plaintiffs who hope to litigate overseas face several problems. For one thing, it has become increasingly difficult to enforce foreign judgments in American courts. Several states – including New York and California – have passed “libel tourism” laws preventing enforcement. (See Cal. Civ. Proc. Code § 1716(c)(9).) Parallel federal legislation is also in place, effectively barring the enforcement of foreign defamation judgments unless they meet American legal standards. (See 28 U.S.C. §§ 4101-4105.) Additionally, legislators in the U.K. have introduced a bill that would require plaintiffs there to demonstrate that the U.K. is the most appropriate forum to bring their claim. (Ministry of Justice, Draft Defamation Bill, CP3/11, March 15, 2011.) Another move under consideration in Britain is amending the libel laws to more closely mirror those of the United States, including adopting the single- publication rule. Regardless of whether this new legislation passes, it is clear that pursuit of an international claim is growing more difficult.

A Legislative Remedy
One possible solution to the problem of Internet defamation is to amend section 230 to more closely resemble the Digital Millennium Copyright Act, with its system of notice and take-down procedures to regulate copyrighted material online. (See 17 U.S.C. § 101.) If ISPs can be forced to take down copyrighted material, proponents assert, why can't defamation victims enjoy similar protection, especially since the harm is more intimately felt? There is sure to be spirited debate from all corners on this sensitive issue.

On the international front, several measures have been proposed to stem Internet defamation. The U.K. is weighing whether to create a takedown system that would establish a streamlined, clear-cut procedure for the removal of defamatory or libelous Internet content. The process would be different depending on whether the author is identifiable or anonymous, thus also making anonymous posters easier to find. (Ministry of Justice, Draft Defamation Bill, CP3/11, ¶ 93, March 15, 2011).

The underlying goal of these efforts is to reduce the instances of Internet defamation and increase the remedies available to victims, while still allowing for robust public debate on issues of importance

Neville L. Johnson, a partner at Johnson & Johnson in Beverly Hills, handles civil litigation, including media and entertainment matters. Ashley Hunt and Zita Aradi contributed to this article.

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