Internet Defamation and Remedies

Claude Penniless enjoyed dining at his favorite bakery, Twinkles & Cream. Claude especially cherished Twinkles & Cream’ house specialty, Crème-de-la-Crème: a two pound doughnut baked with Spanish flour, generously filled with churned Russian raspberry crème and topped with coconut Twinkles & Cream shipped daily from South America.

For years Claude ravenously devoured Crème-de-la-Crème’s until one day he opened the bakery’s doors to a bitter shock: Twinkles & Cream had stopped baking Crème-de-la-Crèmes due to the exorbitant costs of producing such a doughnut. Infuriated, Claude took to the Internet to voice his frustrations. Claude mercilessly posted, under the guise of anonymity, on numerous Internet forums, chat rooms and social media websites that Twinkles & Cream was being investigated for tax fraud, baked its doughnuts with non-FDA approved ingredients and “purposely overcharged its customers to buy drugs to re-sell to children” — none of which were even remotely true.

Twinkles & Cream intends to sue the author of the defamatory statements for defamation but, due to Claude posting the statements anonymously, does not know the author’s identity. Twinkles & Cream also wants to sue the Internet forums, chat rooms and social media websites for publishing the defamatory statements. Finally, Twinkles & Cream wants to stop losing customers who have heard about Claude’s defamatory statements by ordering the websites to remove Claude’s statements.

This article discusses Twinkles & Cream’ legal remedies.

These issues, while not focused on the merits of the defamation claim itself, are important for a party to consider when it intends to sue or has been sued for Internet defamation. As will be discussed in this article, not all parties are treated equally under Internet defamation law. While one may justifiably believe that providers of interactive computer services, such as complaint websites, review websites, or chat rooms, should be liable for defamatory statements published on their web-pages, the law holds to the contrary. This article will analyze three aspects of Internet defamation law, namely: 1) the liability of interactive computer service providers; 2) an author’s “right to anonymity”; and 3) whether an injured party can obtain a permanent injunction to remove defamatory statements from Internet websites. Before discussing these issues, the article will provide a brief summary of the elements needed to properly state a claim for defamation.

In order to succeed on a defamation claim, a plaintiff must prove: 1) a false and defamatory statement concerning another; 2) an unprivileged publication to a third party; 3) fault by the defendant; and 4) either action-ability of the statement irrespective of special harm or the existence of special harm. Restatement (Second) of Torts § 558 (1977) (Restatement). The first section of this article will focus on the second element, namely, whether, for purposes of being held liable for defamation, a provider of an interactive computer service “publishes” statements which were written by others.

Under common law principles, one who publishes another’s defamatory statement may be treated as a: 1) primary publisher (such as book or newspaper publishers); 2) conduit (such as a telephone company); or 3) distributor (such as a book store, library, or news dealer). Austin v. CrystalTech Web Hosting, 211 Ariz. 569, 572, 125 P.3d 389, 392 (Ct. App. 2005). Primary publishers are generally held to a standard of liability comparable to that of authors because they actively cooperate in publication. Id.

In the Internet context, however, Congress sought to “remove disincentives for the development and utilization of blocking and filtering technologies” and to encourage the development of technologies that allow users to control the information they receive. 47 U.S.C. § 230(b)(3)–(4). Congress, therefore, decided to “override the traditional treatment of publishers, distributors, and speakers under statutory and common law” by enacting the Communications Decency Act of 1996 (CDA). Batzel v. Smith, 333 F.3d 1018, 1026 (9th Cir. 2003).

The CDA is the fundamental piece of federal legislation that immunizes providers of interactive computer services against liability arising from content created by third parties. Specifically, the CDA provides that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1).

Section 230 immunity was created because “Congress made a policy choice . . . not to deter harmful online speech through the separate route of imposing tort liability on companies that serve as intermediaries for other parties’ potentially injurious messages.” Zeran v. Am. Online, Inc., 129 F.3d 327, 330–31 (4th Cir. 1997). Immunity under Section 230 is not limited to defamation or speech-based torts, however. As applied, this immunity has proved nearly limitless, protecting providers from defamation (id.), invasion of privacy (Parker v. Google, 242 Fed. Appx. 833 (3rd Cir. 2007)), misappropriation of right of publicity (Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th Cir. 2003)), general negligence (id.), and intentional infliction of emotional distress (Doe v. Friendfinder Network, Inc., 540 F. Supp. 2d 288 (D.N.H. 2008)), among other claims.

Section 230 does, however, explicitly exempt from its coverage criminal law, communications privacy law, and “intellectual property claims.” In interpreting these exclusions, courts generally hold that Congress meant to exclude federal intellectual property claims, such as copyright and trademark, but they disagree whether state-law intellectual property claims are also exempted from the broad immunity protection Section 230 provides.

The CDA defines the first important phrase, “provider or user of an interactive computer service,” as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server.” 47 U.S.C. § 230(f)(2). In other words, this provision was designed to protect the service providers of Internet blogs, websites, forums, listservs, search engines, social media websites, and all other interactive computer services from liability for defamatory statements posted on their websites by users of that service.

Notably, the CDA’s grant of immunity applies only if the interactive computer service provider is not also an “information content provider,” which is defined as someone who is “responsible, in whole or in part, for the creation or development of” the offending content. Id. § 230(f)(3); see Global Royalties, Ltd. v. Xcentric Ventures, LLC, 2007 WL 2949002, at *3 (D. Ariz. Oct. 10, 2007) (“[T]he CDA protects website operators from liability as publishers, but not from liability as authors.”). “A website operator can be both a service provider and a content provider.” Fair Hous. Council of San Fernando Valley v. Roomates.com, LLC, 521 F.3d 1157, 1162 (9th Cir. 2008). On one hand, if the website operator passively displays content submitted by third parties, then it is only a service provider with respect to that content. Id. On the other hand, the website operator will be held responsible for content that it creates itself or that it is “responsible,” in whole or in part, for creating or developing. Id. “Thus, a website may be immune from liability for some of the content it displays to the public but be subject to liability for other content.” Id. at 1162–63.

Interestingly, the provider’s “efforts to screen content submitted by third parties does not disqualify it from immunity under the CDA.” Seldon v. Magedson, 2014 WL 1456316, at *5 (D. Ariz. Apr. 15, 2014); see Roomates.com, 521 F.3d at 1170–71 (“[A]ny activity that can be boiled down to deciding whether to exclude material that third parties seek to post online is perforce immune under section 230.”); Carafano, 339 F.3d at 1124 (“[S]o long as a third party willingly provides the essential published content, the interactive service provider receives full immunity regardless of the specific editing or selection process.”).

The second important provision of Section 230 states that “[n]o user or provider . . . shall be treated as the publisher or speaker” of the offending statement. This provision is important because it facially prevents a plaintiff from proving one of the necessary elements for a defamation claim: an unprivileged publication. As noted, in order to succeed on a defamation claim, a plaintiff must prove four elements: 1) a false and defamatory statement; 2) an unprivileged publication to a third party; 3) fault; and 4) harm. In essence, Section 230 therefore grants immunity to providers of interactive computers services by eradicating any potential claim against the provider, provided, of course, that the provider is not also an “information content provider.”

Courts have held that this prong of the CDA immunity test has been met where a plaintiff seeks to hold the defendant liable for various torts based merely on the fact that the defendant provided the online forum or Internet connection in which the tortious conduct occurred. See, e.g., Delfino v. Agilent Techs., Inc., 145 Cal. App. 4th 790, 806, 52 Cal. Rptr. 3d 376, 389–90 (2006) (finding the CDA shields an employer from intentional and negligent infliction of emotional distress tort liability where an employee sent threatening messages using the employers’ computer system); Kathleen R. v. City of Livermore, 87 Cal. App. 4th 684, 692, 104 Cal. Rptr. 2d 772, 781 (2001) (finding CDA immunity for a public library for various tort causes of action that alleged that the library’s only role in the tortious conduct was providing the Internet service to the primary tortfeasor); Carafano, 339 F.3d at 1125 (finding that CDA immunity shielded an online dating service provider against various tort causes of action including negligence).

The third important phrase in Section 230 clarifies that the defamatory statement must be “provided by another information content provider.” The term “information content provider” means “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.” 47 U.S.C. § 230(f)(3). This provision, therefore, states that as long as the source of the information is not the interactive service provider itself, the service provider will be immune from liability.

If Twinkles & Cream can prove that a particular provider was more than just a service provider but also a content provider, it might be able to bring a claim against that provider. These are not the facts of the hypothetical though. Consequently, Twinkles & Cream will not be able to sue any of the forums, websites, chat rooms or social media websites for posting Claude’s defamatory statements.

It must be noted, however, that Section 230 does not immunize the actual creator of the injurious content (Claude). The author of a defamatory statement, whether he is a successful blogger, professional commenter, or simply a random dissatisfied customer, remains just as responsible for his online statements as he would be for his offline statements. Claude, therefore, can be held monetarily liable for his defamatory statements — provided, of course, that Twinkles & Cream can obtain his identity ...

According to the Supreme Court of the United States, “an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 341–42 (1995). In other words, authors who anonymously post on the Internet have a constitutional “right to anonymity.”

This right is, nonetheless, subject to certain limitations. For example, Justice Oliver Wendell Holmes famously commented that “[t]he most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Schenck v. United States, 249 U.S. 47, 52 (1919). Similarly, the right to anonymity does not protect statements that are false or defamatory. But how can an injured party obtain the identity of an anonymous Internet author? Answer: request a court to order the service provider to disclose the author’s identity.

This process may not be as simple or fast as it sounds, however. Due to the author’s constitutional right to remain anonymous, a plaintiff is not allowed to baldly allege that he was defamed by the anonymous posting and receive the author’s information. Rather, as the Arizona Court of Appeals explained:

Mobilisa v. Doe, 217 Ariz. 103, 114–15, 170 P.3d 712, 723–24 (Ct. App. 2007). This section will briefly explain each element.

The party requesting the anonymous speaker’s identity is first required to show that the speaker has been given adequate notice and a reasonable opportunity to respond to the party’s discovery request. The purpose of the notification requirement is to ensure that the anonymous speaker “knows his First Amendment rights may be in jeopardy.” Id. at 112, 170 P.3d at 721. Depending on the factual circumstances of any given case, providing adequate notice to an anonymous speaker can be relatively simple or undesirably difficult.

The second requirement, that the claim could survive a motion for summary judgment, could prove to be burdensome for an injured plaintiff. Summary judgment is only appropriate if no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Orme Sch. v. Reeves, 166 Ariz. 301, 309–10, 802 P.2d 1000, 1008–09 (1990). A court will view the evidence and any reasonable inferences therein in the light most favorable to the party opposing summary judgment, in this case, the anonymous speaker. See Phx. Baptist Hosp. & Med. Ctr., Inc. v. Aiken, 179 Ariz. 289, 293, 877 P.2d 1345, 1349 (Ct. App. 1994). Accordingly, the plaintiff must, at the very least, make some factual allegations that would result in a disputed issue of material fact.

Of course, a court will generally excuse an injured plaintiff from producing evidence in support of those elements of his claim that he cannot be expected to show without the opportunity to take discovery. The most common example arising in defamation cases is the element of fault—whether a statement was published with at least negligence as to the statement’s falsity. In most cases, it is unfair to expect the plaintiff to make a showing on this point without having the opportunity to identify the anonymous speaker and take discovery regarding his mental state.

The third requirement, balancing the parties’ interests, is widely controversial and produced a strong dissent in Mobilisa. Specifically, the dissent questioned whether it was constitutional to require a balancing of the competing interests when absent the identity of the speaker, the plaintiff would have “no other opportunity for relief” because there would be “no defendant to answer and (potentially) hold liable.” Mobilisa, 217 Ariz. at 117, 170 P.3d at 726. Despite the logic of this argument, under Mobilisa, the court will weigh the potential harm to the plaintiff from being unable to proceed with its case against the harm to the author from losing his First Amendment right to anonymity.

Regarding the second element, Twinkles & Cream’ claim likely “could” withstand a motion for summary judgment. Twinkles & Cream can show that 1) false and defamatory statements were made against it; 2) the statements were published by the anonymous defendant; and 3) it was harmed. At this time in litigation, Twinkles & Cream likely will not have evidence to show Claude’s level of “fault.” Consequently, the court will probably excuse Twinkles & Cream from making that showing because without Claude’s identity and proper discovery, making such a showing would be tremendously difficult, if not impossible. Twinkles & Cream, therefore, should be able to satisfy this second element.

Finally, the third element requires a balancing of the Twinkles & Cream’ and Claude’s interests. In this case, the court will weigh the potential harm to Twinkles & Cream from being unable to proceed with its case against the harm to Claude from losing his First Amendment right to anonymity. Without a strong showing by Claude, a court will likely hold that Twinkles & Cream’ interest outweighs Claude’s interest. Courts do not look kindly upon defamation and hold that the right to anonymity does grant an author the right to publish false and defamatory statements.

Accordingly, because Twinkles & Cream should be able to satisfy the three elements of Mobilisa, a court will likely order that Claude’s identity be revealed.

An injured plaintiff may be able to obtain relief outside of direct liability by obtaining a court order for a permanent injunction. Although a court cannot order a service provider to remove the complained of postings, an injunction on the anonymous author is often necessary when the author refuses to respond to the injured party’s request for the author’s identity or refuses to remove defamatory statements. See Alpha Phx. Indus. LLC v. SCInternational Inc., 2013 WL 5814850, at *6 (D. Ariz. Oct. 29, 2013). If approved, the court will order the author to remove the defamatory postings and enjoin him from making other defamatory statements in the future. See Id. (issuing a permanent injunction “ordering Defendants to remove the defamatory communications and enjoining Defendants from making further defamatory communications”).

Injunctive relief is rooted in principles of equity. According to these principles, a plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief. The plaintiff must demonstrate that: (1) it has suffered an irreparable injury; (2) remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) the public interest would not be disserved by a permanent injunction. eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006) (citing Weinberger v. Romero–Barcelo, 456 U.S. 305, 311–13 (1982); Amoco Prod. Co. v. Gambell, 480 U.S. 531, 542 (1987)).

In regards to the second factor, Twinkles & Cream will note that because the defamatory statements were posted by Claude to various interactive computer service websites, the websites will be immunized from liability because the content was created by a third party. See 47 U.S.C. § 230(c)(1). Thus, Twinkles & Cream will not be able to monetarily recover from any of the service providers. Moreover, without Claude’s identity, Twinkles & Cream would not be able to recover from the one person it could recover from: the author of the defamatory statements. Twinkles & Cream could file a lawsuit, of course, but, without a named defendant to answer the claim, any judgment would be unenforceable. Consequently, a court would likely find that remedies at law would not be available to compensate Twinkles & Cream for its injuries.

Finally, analyzing the third and fourth factors together, Claude’s hardship of being prevented from uttering defamatory statements regarding Twinkles & Cream is not really a hardship. Conversely, Twinkles & Cream would suffer a substantial hardship in not being able to erase the defamatory communications. Thus, balancing the hardships between the parties would likely warrant a remedy at equity. Moreover, if the court finds that the statements were defamatory; it would likely hold that the public’s interest would not be disserved by ordering Claude to remove the statements and enjoin him from making further defamatory statements.

Accordingly, Twinkles & Cream will likely be able to prove the four elements necessary to receive a permanent injunction. The court, therefore, would likely issue an order preventing Claude from posting further defamatory statements and directing Claude to remove the currently-published statements.

In summary, Twinkles & Cream will not be able to bring a claim against the interactive computer service providers but may be able to obtain a court order requiring Claude to remove his defamatory postings and preventing him from posting further defamatory statements. Moreover, Twinkles & Cream should be able to obtain Claude’s identity so it can directly recover monetary damages from Claude.

The law views the Internet and even interactive computer services such as the complaint websites and review websites as merely the town square, and the town is not liable for what individual members of the public say in the town square, no matter how defamatory. The key to getting relief for Internet defamation is identifying the actual person posting the defamatory statements, and then pursuing the claims against the author under traditional defamation theories.