The Tort of "Outrage"

CNN reports that, rather than prudently disappear, failed Senate candidate and former Constitution-ignoring Alabama Chief Justice Roy Moore has filed a lawsuit:

Failed Alabama Senate candidate Roy Moore says the women who accused him of sexual assault were part of a political conspiracy, according to a lawsuit filed Monday. 

The suit was jointly filed with his wife, Kayla, about an hour before the two held a news conference. It was Moore's first public appearance since election night in December, when Moore, a Republican, was upset by Democrat Doug Jones.

I'm pleasantly surprised to see that CNN links to a copy of the Complaint.

I'm not going to delve into the merits of the litigation, although Moore's theory -- that it's curious that allegations against him were not raised earlier -- strikes me as flimsy. I'm sure the merits of his lawsuit have been and will be analyzed by others in far greater depth. Instead, I want to focus on Moore's sixth cause of action for "Outrage." The pertinent allegation under that cause of action states:

66. At the aforesaid times and places, Defendants—with the intent to cause severe damage to the Plaintiffs’ reputation and standing in the community—intentionally or recklessly engaged in extreme and outrageous conduct that caused emotional distress so severe that no reasonable person could be expected to endure it. Fully aware of the probable emotional impact their actions would have on the Plaintiffs, the Defendants nonetheless recklessly and willfully disregarded the consequences of their actions.

I've never heard of a cause of action for outrage, but after a bit of research it appears that Alabama courts recognize this cause of action as an alternate name for the cause of action for intentional infliction of emotional distress. The Alabama Supreme Court provides some background on this in Thomas v. BSE Indus. Contractors, Inc.:

This Court first recognized the tort of outrage, or intentional infliction of emotional distress, in American Road Service Co. v. Inmon, 394 So.2d 361 (Ala.1981). In Inmon, the Court held that to present a jury question the plaintiff must present sufficient evidence that the defendant's conduct (1) was intentional or reckless; (2) was extreme and outrageous; and (3) caused emotional distress so severe that no reasonable person could be expected to endure it. The Court defined the second element of the tort of outrage as follows: "By extreme we refer to conduct so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as 1044*1044 atrocious and utterly intolerable in a civilized society." Inmon, 394 So.2d at 365 (quoting Restatement (Second) of Torts, § 46 cmt. d, at 72 (1948)).

This makes sense when you compare Moore's cause of action for outrage with the allegation underlying his cause of action for intentional infliction of emotional distress:

64. At the aforesaid times and places, and for some time prior Defendants, with the intent to cause damage to the Plaintiffs, did intentionally utter, produce, and disseminate spoken and written communications to harm the reputation and character of Roy Moore. The aforesaid outrageous and shocking acts were done with the intent of causing emotional distress and injury to Roy Moore and Kayla Moore and were a proximate cause of the Plaintiffs’ injuries as described above, herein.

Why does Moore allege two causes of action that are essentially the same? One possibility is that, until recently, Alabama courts appear to have taken a notably narrow approach to the tort of outrage.  A relatively recent opinion by the Alabama Supreme Court in Wilson v. University of Alabama Health Services Foundation held that it was error to apply too narrow of an approach to the tort:

This Court has previously recognized the tort of outrage in three circumstances:

"The tort of outrage is an extremely limited cause of action. It is so limited that this Court has recognized it in regard to only three kinds of conduct: (1) wrongful conduct in the family-burial context, Whitt v. Hulsey, 519 So. 2d 901 (Ala. 1987); (2) barbaric methods employed to coerce an insurance settlement, National Sec. Fire & Cas. Co. v. Bowen, 447 So. 2d 133 (Ala. 1983); and (3) egregious sexual harassment, Busby v. Truswal Sys. Corp., 551 So. 2d 322 (Ala. 1989). See also Michael L. Roberts and Gregory S. Cusimano, Alabama Tort Law, § 23.0 (2d ed. 1996)."

Potts v. Hayes, 771 So.2d 462, 465 (Ala. 2000). However, as Wilson notes in her brief, this Court has not held that the tort of outrage can exist in only those three circumstances: 

"That is not to say, however, that the tort of outrage is viable in only the three circumstances noted in Potts. Recently, this Court affirmed a judgment on a tort-of-outrage claim asserted against a family physician who, when asked by a teenage boy's mother to counsel the boy concerning his stress over his parents' divorce, instead began exchanging addictive prescription drugs for homosexual sex for a number of years, resulting in the boy's drug addiction. See O'Rear v. B.H., 69 So. 3d 106 (Ala. 2011). It is clear, however, that the tort of outrage is viable only when the conduct is `"so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society."' Horne v. TGM Assocs., L.P., 56 So. 3d 615, 631 (Ala. 2010) (quoting [American Road Service Co. v.] Inmon, 394 So. 2d [361, 365 (Ala. 1980)])." 

Little v. Robinson, 72 So. 3d 1168, 1172-73 (Ala. 2011) (emphasis added).

The Court went on to overturn the trial court's holding that the cause of action for outrage is only limited to "three situations." With restrictive case law like Potts on the book, however, and with the Wilson decision only being published in December 2017, it's not surprising that a plaintiff who might not be aware of the recent Wilson decision might also want to assert a cause of action for intentional infliction of emotional distress to get around the restrictive-sounding precedent.

Additionally, the extra cause of action makes the Complaint look all the more impressive without much risk. After all, the Alabama Supreme Court in Birmingham Railway & Electric Co. v. Baylor (a case that is very old and which does not appear in full on Google Scholar and which I am not going to devote resources or time towards cite-checking),  notes that "mere redundancy will not vitiate a complaint." (at p. 494).

Moore likely won't lose anything by adding in what is essentially a restatement of his cause of action for intentional infliction of emotional distress, and will gain what appears to be an additional cause of action -- a cause of action for "Outrage," no less!

Plaintiff Asks Court to Declare That Defendant is a "BULLY"

From this tweet by Keith Lee, I learned of this fascinating Complaint filed on Sunday in the New York County Supreme Court. Lee takes note of the first two paragraphs of the Complaint, which are admittedly colorful:

1. The date, September 7, 2017, is a date that shall live in infamy in Staten Island history. On September 7, 2017, the circus came to town. The Defendant, DENNIS W. QUIRK (“QUIRK”) in his individual and personal capacity exploded on the courthouse steps as part rabid-dog and part carnival-barker, in a dangerous, intentional, outrageous, and malicious manner. QUIRK caused serious, substantial, unconscionable, intentional, and malicious harm to the Plaintiff, MICHAEL J. PULIZOTTO (“PULIZOTTO”), in the center of the public square – the steps of the Richmond County Courthouse – all to advance QUIRK’s own personal and political agenda.

2. The date, September 7, 2017, shall always and hereafter be known as “THE DAY OF THE RAT” in Richmond County.

The Complaint goes on to allege that Quirk set up a large inflatable rat outside the parking lot of the courthouse in an effort to ridicule Pulizotto, among many other things. Notably, in Paragraph 2, Pulizotto does not only use "THE DAY OF THE RAT" as shorthand for future reference in the document (as he does with "QUIRK" and "PULIZOTTO"), but dramatically states that September 7, 2017 shall be known as "THE DAY OF THE RAT" in Richmond County. It is unlikely that the Court has the authority to make such a declaration (as such a declaration would likely be within the province of county authorities), but Pulizotto does not seek the labeling of that date in his prayer for relief.

While I found much of the Complaint entertaining, due to its length and excessive hyperbole, I was not able to read the entire thing. But as I skimmed through, these two paragraphs caused me to chuckle:

56. Merriam Webster Dictionary defines “BULLY” as a blustering, browbeating person; especially: one who is habitually cruel, insulting, or threatening to others who are weaker, smaller, or in some way vulnerable.

57. QUIRK is a BULLY.

As it turns out, these two paragraphs end up being relevant to Pulizotto's causes of action, specifically, his cause of action for declaratory judgment. For those who need to brush up on their remedies, a declaratory judgment is: "A binding judgment from a court defining the legal relationship between parties and their rights in the matter before the court" which does not provide for enforcement.

What sort of declaratory judgment does Pulizotto seek?

AS AND FOR A SIXTH CAUSE OF ACTION ON BEHALF OF PLAINTIFF(DECLARATORY JUDGMENT)

181. Plaintiff, PULIZOTTO, repeats, realleges, and restates all paragraphs above as if fully set forth herein and further states as follows.

182. As specifically plead above, a bona fide, justiciable, and substantial controversy exists as between the Defendant, QUIRK, and the Plaintiff, PULZOTTO [sic].

183. The Defendant, QUIRK, and the Plaintiff, PULZOTTO [sic] have adverse legal interests.

184. A judgment would serve a useful purpose in clarifying or settling the legal issues as between the Defendant, QUIRK, and the Plaintiff, PULZOTTO [sic].

185. There is a clear and ascertainable standard for the Court to rule on this issue, to wit: Merriam Webster Dictionary defines “BULLY” as a blustering, browbeating person; especially: one who is habitually cruel, insulting, or threatening to others who are weaker, smaller, or in some way vulnerable.

186. A judgment would finalize the controversy and offer relief from uncertainty as to whether the Defendant, DENNIS W. QUIRK is a “BULLY”.

And in addition to the $25 million in compensatory and punitive damages that Pulizotto seeks in his Prayer for Relief, he also asks for:

G. a declaration that: “DENNIS W. QUIRK IS A BULLY.”;

 

Declaratory judgments may be used to stop litigation "bullies" from sending repetitive demand letters or making meritless threats of litigation, but this is the first instance of which I am aware in which a party has sought to use the remedy to give its name calling the force of law. While Quirk likely does not want to be called a "Bully," the "BULLY" label that Pulizotto seeks is of no legal consequence and bears no apparent relevance to the parties' legal relationship or rights, the Court will almost certainly refuse to grant Pulizotto the requested relief on this cause of action.

 

Pulizotto may well have strong, negative feelings toward Quirk, but incorporating such a petty and futile cause of action into his Complaint will likely do nothing but harm his credibility before the Court in future proceedings. This Complaint and its dramatic language therefore join the vast ranks of pleadings that are amusing, yet awful examples of how litigants should act.

[UPDATE, 10/18/2017]

Another no-no I just noticed in the drafting of the Complaint is that the Plaintiff repeatedly misspells his own name. I have updated the above quotes with [sic]'s so that readers do not accuse me of shoddy copying and pasting.

Melania Trump Demands Removal of "Actionable" Statements from People Article

So reports Politico:

Donald Trump may not be planning to sue People over the magazine's story accusing him of sexual assault, but his wife Melania apparently is.

At 7:15 p.m. on Thursday night, Melania tweeted a copy of a letter bearing the return address of her lawyer, Charles Harder, and addressed to People editorial director Jess Cagle and People writer Natasha Stoynoff, who wrote a first-person account about Donald Trump forcibly kissing her at Mar-a-Lago in 2005.

Harder — who represented Hulk Hogan in his suit against Gawker, which was funded by Trump supporter Peter Thiel, and has sent threatening letters on Melania's behalf before — wrote that Stoynoff's account contained "actionable" falsehoods (though it did not call the article defamatory). The specific passage Melania Trump disputes: the account of the writer bumping into Melania and having a brief conversation with her outside of Trump Tower.

"The true facts are these: Mrs. Trump did not encounter Ms. Stoynoff on the street, or have any conversation with her. The two are not friends and were never friends or even friendly," Harder wrote.

A complete copy of the letter is here, and it is reprinted in full in the above Politico article.

The letter, which Politico notes uses the term "actionable," rather than "defamatory," does not specify what causes of action Melania Trump has against People. Melania's attorney contends that the statement gives rise to "claims of damages," but it is unclear how the mere statement that Melania recognized and said hello to Stoynoff is damaging in any way, even if it is false.

The letter states the vague threat that People's failure to retract the statements and issue an apology "will require Mrs. Trump to consider her legal options." Perhaps Melania and her attorneys should have considered the legal options before writing the letter, as Melania's legal options seem to be nonexistent.

Parents' Liability for Their Children's Online Conduct

The Wall Street Journal Law Blog has this interesting post about Boston v. Athearn, a recent case from the Court of Appeals of Georgia. From the Law Blog:

The Georgia Court of Appeals ruled that the parents of a seventh-grade student may be negligent for failing to get their son to delete a fake Facebook profile that allegedly defamed a female classmate. 

The trouble started in 2011 when, with the help of another student, the boy constructed a Facebook profile pretending to be the girl. He used a “Fat Face” app to make her look obese and posted profane and sexually explicit comments on the page depicting her as racist and promiscuous, according to court documents. 

When the girl found out about it, she told her parents who then complained to the school’s principal. The school punished the boy with two days of in-school suspension and alerted his parents, who grounded him for a week. 

But for the next 11 months, according to the appeals court opinion, the page stayed up. It wasn’t deleted until Facebook deactivated the account at the urging of the girl’s parents, the opinion said. The girl’s lawyer says the child’s parents didn’t immediately confront the boy’s parents because their school refused to identify the culprit for confidentiality reasons.

The full opinion of the court is available here.

The court emphasized that the parents had been notified of their child's online conduct, and pointed out that the nature of online defamation created an ongoing harm to the plaintiffs. From the opinion:

In this case, it is undisputed that Dustin used a computer and access to an Internet account improperly, in a way likely to cause harm, and with malicious intent. The Ahearns contend that they had no reason to anticipate that Dustin would engage in that conduct until after he had done so, when they received notice from the school that he had been disciplined for creating the unauthorized Facebook profile. Based on this, they contend that they cannot be held liable for negligently supervising Dustin’s use of the computer and Internet account. The Ahearns’ argument does not take into account that, as Dustin’s parents, they continued to be responsible for supervising Dustin’s use of the computer and Internet after learning that he had created the unauthorized Facebook profile. While it may be true that Alex was harmed, and the tort of defamation had accrued, when even one person viewed the false and offensive postings, it does not follow that the Athearns’ parental duty of reasonable supervision ended with the first publication.

Given the nature of libel, the original tortious conduct may continue to unfold as the false and injurious communication is published to additional readers or the defamatory content persists in a public forum without public correction or retraction. With regard to the instant action, we conclude that a reasonable jury could find that, after learning on May 10, 2011, of Dustin’s recent misconduct in the use of the computer and Internet account, the Ahearns failed to exercise due care in supervising and controlling such activity going forward. Given that the false and offensive statements remained on display, and continued to reach readers, for an additional eleven months, we conclude that a jury could find that the Athearns’ negligence proximately caused some part of the injury Alex sustained from Dustin’s actions (and inactions). Accordingly, the trial court erred in granting the Athearns’ motion for summary judgment in part. (footnotes omitted).

Critics have spoken out against this ruling, arguing that it is undesirable or that the negligence lawsuit should have been barred by section 230 of the Communications Decency Act (CDA). I think that this ruling is far less problematic than the critics have argued, and I explain my reasoning after the break.

Texas Courts Can Order Removal of Defamatory Material Posted Online

So holds the Texas Supreme Court in Kinney v. Barnes. The full text of the opinion is available here. Texas Lawyer reports that court orders for the removal of online content is a new remedy for defamed parties. Texas Lawyer goes on to note that the opinion still holds that courts cannot enjoin any future online speech since that would be an unlawful prior restraint, something that the Supreme Court has roundly rejected (see footnote 7 of the opinion).

From the opinion:

In this case, Kinney’s request for injunctive relief may be broken down into two categories. First, as reflected in the pleadings, Kinney would have the trial court order Barnes to remove the statements at issue from his websites (and request that third-party republishers of the statements do the same) upon a final adjudication that the statements are defamatory. Such an injunction does not prohibit future speech, but instead effectively requires the erasure of past speech that has already been found to be unprotected in the context in which it was made. As such, it is accurately characterized as a remedy for one’s abuse of the liberty to speak and is not a prior restraint.

While injunctive relief is typically not available in defamation cases, ordering the removal of posted defamatory material seems to be a sensible exception to the general rule. Were the statement to remain online, courts would need to estimate the continuing damage the statement could cause, or re-adjudicate the case if harm continued to occur as a result of the statement. Ordering the removal of a defamatory statement may at least partially mitigate some of this continuing harm.

California Passes Law Prohibiting Non-Disparagement Clauses

So reports the LA Times:

Californians offering online opinions or reviews of businesses will have new legal protection under a bill signed Tuesday by Gov. Jerry Brown.

The measure by Assemblyman John A. Pérez (D-Los Angeles) aims to crack down on retailers seeking to stop negative online reviews by requiring consumers not to make negative public comments about the business.

Those requirements, known as non-disparagement clauses, are at times buried in the lengthy terms and conditions that some businesses ask customers to agree to before making a purchase. Pérez's measure makes such clauses illegal in most cases.

The bill is AB 2365. From the text of the bill:

SECTION 1. Section 1670.8 is added to the Civil Code, to read:

1670.8. (a) (1) A contract or proposed contract for the sale or lease of consumer goods or services may not include a provision waiving the consumer’s right to make any statement regarding the seller or lessor or its employees or agents, or concerning the goods or services. 

(2) It shall be unlawful to threaten or to seek to enforce a provision made unlawful under this section, or to otherwise penalize a consumer for making any statement protected under this section. 

(b) Any waiver of the provisions of this section is contrary to public policy, and is void and unenforceable.

The bill goes on to include monetary penalties for businesses violating the law. These penalties take the form of statutory damages which could be recovered in any lawsuit filed by a consumer or by a government agency.

In a previous post, I highlighted an instance where a company engaged in oppressive use of its non-disparagement agreement. In light of the potential for companies to use these clauses to oppress customers and silence criticism, I think that this law is a good idea. Companies remain free to remove any disparaging remarks that are posted on their websites, and they remain free to pursue defamation cases, so there are still legal remedies available for companies that are facing significant harm caused by false criticism.

It will be interesting to see the effect of this bill on non-disparagement agreements throughout the country. I imagine that many companies that employ these clauses do so on their websites. These companies should probably remove those clauses from their online forms, since there is a significant chance that these forms will be signed by customers in California.

UPDATE: 9/12/2014

Eugene Volokh notes that subsection (a)(2) of the bill may prohibit a dangerous amount of conduct. Not only does that subsection prohibit the enforcement of a non-disparagement clause, it also states that businesses cannot "otherwise penalize a customer" from criticizing the business.

Volokh worries that this subsection could be construed to restrict businesses from refusing to do business with customers who make constant, disparaging remarks. And Volokh worries that this subsection could be construed to restrict defamation lawsuits against consumers' statements that are indeed defamatory.

I suspect that the most likely penalty businesses would seek to impose on customers would be liquidated damages that are stated in the non-disparagement clause. But these liquidated damages provisions would presumably be barred by the ban on enforcement of the non-disparagement clause -- a prohibition that is stated in subsection (a)(2) in addition to the broader, "otherwise penalize" statement.

While I think that courts would be hesitant to characterize filing a defamation lawsuit as "penalizing" a customer, Volokh is correct to point out that subsection (a)(2) of the law could have been more carefully drafted.

The Convicium Approach to Defamation

Earlier, I blogged about a Yankee fan, Andrew Rector, who is suing ESPN and several announcers for defamation after they made remarks about him sleeping during a game. In that post, I argued that Rector's complaint was doomed on the merits, in part because the defamatory statements he described in his complaint were statements of opinion rather than false statements of fact.

Looking back, I may have been too harsh to argue that Rector's lawsuit was meritless. Instead, Rector seems to have simply filed his lawsuit in an untimely manner, and in the wrong court. R.H. Helmholz explains further, in his book, Roman Canon Law in Reformation England:

The sixteenth and seventeenth-century ecclesiastical courts carried further a change that had begun at the same time their jurisdiction over imputations of secular crimes were beginning to be attacked in the last quarter of the fifteenth century. That was to permit actions to be brought for convicium. Convicium meant abusive and hurtful language which did not, however, necessarily impute the commission of a crime. Post-Reformation practice built upon and expanded this change. Thus one finds imputations that were in truth no more than insults -- words like "whore of thy tongue" -- appearing in the act book records. It became possible to invoke ecclesiastical jurisdiction when one had been called merely "a hypocrite", "a false knave", "a cozener", or "a scurvy drunken baggage". To say that a man had "no more conscience than a dog", or even that he "went to church to pray for his dog", could amount to actionable convicium. None of these abusive but unincriminating phrases would have been actionable under the Provincial Constitution of 1222 that had dominated medieval practice. That Constitution required the imputation of a crime and the requirement had had the effect of limiting the number of defamation causes the Church courts heard. This development removed that limit. 

Behind the new remedy lay the theory that any words uttered out of malice and against "fraternal charity" should subject the speaker to ecclesiastical jurisdiction and discipline just as surely as those which expressly imputed a crime. In the act books, these causes were sometimes expressly styled as being undertaken "for the reformation of manners". . . . Defining what words might be said to offend "fraternal charity" is not an easy thing to do, and contemporary civilians did not offer precise definition. (58-59) (footnotes omitted)

Rector complained that he had been called words like "stupor, fatty, unintelligent, [and] stupid," by commentators. These terms would almost certainly be characterized as statements of opinion. While statements of opinion like these are not actionable under modern defamation law, it would appear that Rector would have a pretty good claim for convicium. While I did not hear any announcers call Rector "a false knave," or "a scurvy drunken baggage," the insults he is claiming are in the same vein as these examples of actionable convicium.

Admittedly, Rector filed his lawsuit a little bit too late. He would have been best off filing this lawsuit in the 16th or 17th century when convicium actions were more commonly accepted. Also, Rector filed his lawsuit in a New York trial court, where his convicium claim would probably fail. Rector would be better off filing his complaint in an English ecclesiastical court.

But in light of my discovery of the strategy Rector may have intended to pursue, I may have been overly hasty to claim that his lawsuit was meritless. On paper, Rector raises a decent convicium claim -- he's simply filed the lawsuit in the wrong court and in an untimely manner.

How Not to Sue for Defamation (And How Not to Draft a Complaint)

From Deadspin, I learned of a delightful new lawsuit from New York. The Deadspin post's title, "Yankees Fan Caught Sleeping in Stands Sues Everyone for Defamation," sums up the lawsuit nicely.

Here is the video that gave rise to the lawsuit, where ESPN Announcers Dan Shulman and John Kruk (or "Kruck" - according to parts of the complaint) discover and comment on the plaintiff, Andrew Rector:



Through the magic of Scribd, a portion of the complaint is available. I say "a portion" because the document does not include a claim for damages nor does it appear to have a space for the plaintiff's attorney to sign. But even though the document purports to be the statement of facts for the lawsuit, the final paragraphs of the document veer into discussions of the plaintiff's legal theory, so at least something can be said about the merits of the claim. Moreover, CBS reports that the plaintiff is seeking 10 million dollars in damages.

How solid is Rector's claim?

Sixth Circuit Reverses Defamation Judgment Against TheDirty.com

I blogged about this case, Jones v. Dirty World Entertainment, last November when the Eastern District of Kentucky held that a plaintiff who had been defamed by posters on the defendant's website could sue the website's owner. Following this holding, a jury found in favor of plaintiff, and the defendant appealed. Yesterday the Sixth Circuit vacated the judgment and held that the plaintiff's lawsuit was barred as a matter of law. The Sixth Circuit's opinion is available here.

The ACLU described the facts of the case shortly following the lower court's verdict:

TheDirty.com is probably best known for its role in breaking the latest Anthony Weiner scandal. In 2009, the site posted an anonymously submitted story stating that Sarah Jones, a high school teacher and Cincinnati Bengals cheerleader, slept with the entire Bengals team. A second post alleged Jones had sex with her husband in her classroom and had STDs. TheDirty.com’s publisher, Nik Richie, then added his own fateful commentary at the bottom of this post: “Why are all high school teachers freaks in the sack? – nik.”

Dirty World argued that it could not be sued since the defamatory content had been posted by third parties on the website. Under Section 230 of the Communications Decency Act (CDA), website owners are typically not liable for defamatory statements posted by third parties. The Eastern District of Kentucky ruled that The Dirty and Richie were not entitled to immunity under section 230.

From the Sixth Circuit's opinion:

Under the CDA, Richie and  Dirty World were neither the creators nor the developers of the challenged defamatory content  that was published on the website. Jones’s tort claims are grounded on the statements of another content provider yet seek to impose liability on Dirty World and Richie as if they were the  publishers or speakers of those statements. Section 230(c)(1) therefore bars Jones’s claims.

The court admitted that sometimes a website owner may be found liable for content posted on the website if the owner takes its own steps to "develop" the offending content in a manner that materially contributes to that content's illegality. The court emphasized that this exception to 230 immunity was narrow, noting that a website owner's "encouragement" of users to post information that may end up being defamatory was not enough remove section 230 immunity from a website owner. The court also held that Richie's comments on the site did not subject him to liability:

A website operator cannot be responsible for what makes another party’s statement actionable by commenting on that statement post hoc. To be sure, a website operator’s previous comments on prior postings could encourage subsequent invidious postings, but that loose understanding of responsibility collapses into the encouragement measure of “development,” which we reject.

The court further noted that Richie's statements about the defamatory content were not the ones the plaintiff argued were defamatory, and held that Richie's statements did not materially contribute to the illegality of the original statements.

In reaching its holding, the Sixth Circuit follows a general trend of treating CDA, section 230 as granting very broad immunity for websites. Most notably, the court refused to hold that a website owner's posted reaction and approval of defamatory comments subjected the owner to liability by materially contributing to those comments' illegality. This means that plaintiffs will almost never succeed in a lawsuit against a website containing actionable third-party content, even if the owner of that website posts positive reactions to that content.

A Lie Detector for Social Media? Thoughts From a Defamation Perspective

The BBC reports:

A lie detector for social media is being built to try to verify online rumours. 

The system will analyse, in real time, whether a posting online is true. 

. . . 

The system will categorise the sources of information to assess their authority. Categories include news outlets, journalists, experts, eye witnesses, members of the public and bots - accounts that automatically generate social media posts. 

It will also examine accounts for a history or background to try to identify whether the account has been created just to spread rumours. 

Conversations on social networks will be studied to see how they evolve and sources will be checked to see if information can be confirmed or denied.

The article concludes that the system will hopefully be available to journalists after a period of testing.

It would be interesting to see how this would affect defamation lawsuits. Journalists and others who post things on the internet may copy from a source without verifying whether it is reliable. There is a lot of unreliable content out there (for example, I've heard rumors of blogs started by law students), and copying from these sources is as easy as hitting a couple of buttons.

Will journalists and other online writers be held to higher standards in defamation lawsuits if this sort of technology becomes widely available? Under New York Times v. Sullivan, suits arising from statements about public figures will still be subject to an actual malice - or reckless disregard for the truth - standard. This means that plaintiffs need to prove that the defendant published a false statement knowing that the statement was false, or had reason to doubt the statement was false, but published it anyway. In these cases, the lie detector technology may help defendants. If defendants use a social media lie detecting system before making their statements, they may disprove the plaintiff's claims that the defendants doubted the truth of what they were saying.

On the other hand, social media lie detection technology may harm defendants who make statements about private-figure plaintiffs. Under Gertz v. Robert Welch, Inc., the standard for proving defamation in these cases may be as low as negligence (although plaintiffs would only be able to recover actual damages if successful). Under a negligence standard, defendants' failure to use lie detector software may open them up to liability if that software is readily available. Using this type of technology to verify the truth of a story may become an expected step in publishing information online, and if lie detection software ends up being effective, cheap, and widely available, this could change the dynamic of online defamation cases involving private-figure plaintiffs.

The technology is still in its development, and will be in the testing phase over the next three years, but it is an important piece of technology to watch.

Implied Falsehoods in Political Campaign Ads: Opinions or Facts, and a Bork/Scalia Split

Ryan Koopmans at On Brief has an excellent post discussing Bertrand v. Mullin, a defamation case that the Iowa Supreme Court recently heard. The case arises out of a political campaign, and involves two political candidates. The plaintiff is arguing that the defendant's campaign ad implied a number of falsehoods regarding the plaintiff's role in a business.

Koopmans discusses the legal issues involved:

The Iowa Supreme Court could decide the case on several different grounds. The parties are arguing about jury instructions, whether the defendants made proper objections, and whether Bertrand proved that Mullin had the malicious intent that the Constitution requires in a defamation case like this one. 

But the threshold question—and perhaps the most interesting one—is whether the First Amendment even allows a politician to sue for implied falsehoods like this that happen during the throes of a campaign. If the jury’s judgment in this case is affirmed, will it chill protected political speech? Will well-heeled candidates use lawsuits (and the costs that go with them) to stifle the up-start and low-budget competition? 

Or will the jury’s judgment of this offensive ad properly curb what many believe to be a degrading political climate? And will that encourage more qualified candidates to put their name on the ballot?

The rest of Koopmans's post is a detailed, concise summary of the Bertrand case, and the history of courts' treatment of opinion statements in defamation cases. Central to this history is the case, Ollman v. Evans, where an en banc DC Circuit court held that an op ed criticizing a professor's appointment was not defamation. Then-Judge Antonin Scalia and Judge Robert Bork were both involved in the decision, and split on the outcome, with Bork deciding in favor of the defendants, noting that the plaintiff's political activism and statements meant that he should have expected harsher criticism. Scalia dissented, arguing that there was no reason to treat politically-charged cases differently, since existing First Amendment jurisprudence provided enough protection.

Near the end of his dissenting opinion, Scalia criticized the evolution of the judiciary's approach to constitutional doctrine in light of changing modern circumstances:

I distrust the more general risk of judicial subjectivity presented by the concurrence's creative approach to first amendment jurisprudence. It is an approach which embraces "a continuing evolution of doctrine," not merely as a consequence of thoughtful perception that old cases were decided wrongly at the time they were rendered and not even in response to a demonstrable, authoritatively expressed development of public values; but rather in reaction to judicially perceived "modern problems," which require "evolution of the law in accordance with the deepest rationale of the first amendment," . . . It seems to me that the identification of "modern problems" to be remedied is quintessentially legislative rather than judicial business — largely because it is such a subjective judgment; and that the remedies are to be sought through democratic change rather than through judicial pronouncement that the Constitution now prohibits what it did not prohibit before.

. . . 

[I]t is frightening to think that the existence or nonexistence of a constitutional rule (the willfully false disparagement of professional reputation in the context of political commentary cannot be actionable) is to depend upon our ongoing personal assessments of such sociological factors. And not only is our cloistered capacity to identify "modern problems" suspect, but our ability to provide condign solutions through the rude means of constitutional prohibition is nonexistent. [citations omitted]

It will be interesting to see how the Iowa Supreme Court decides this case -- particularly when it comes to the opinion vs. statement of fact argument and the political context of the controversy.

Essay: Search Engine Liability for Autocomplete Defamation

I mentioned back in September that I had written an essay that was forthcoming in the Illinois Journal of Law, Technology & Policy.  The essay was recently published, and I have put the final version on SSRN.  Here is the abstract:

Several online search engines use autocomplete features that display search suggestions as users type search queries. This Essay investigates the potential for search engine liability for defamatory statements that are displayed through their autocomplete search suggestions. This Essay describes the technology involved, outlines potential defamation claims against search engines, and notes the obstacle presented by the Communications Decency Act (CDA). Recent legal developments limit the immunity that the CDA would typically provide to search engines and this Essay explores how prospective plaintiffs may take advantage of these developments. This Essay first discusses a potential argument from Fair Housing Council v. Roommates.com, LLC, but concludes that policy implications of this argument ultimately undermine its credibility. This Essay then turns to the less-explored case of Batzel v. Smith and concludes that Batzel provides a narrower, more direct argument against search engine immunity. This Essay concludes that prospective plaintiffs have a strong argument against search engine immunity. This removes a critical obstacle in the path of defamation claims.

Mitigating Damage to Digital Reputations

The BBC reports that Steps singer, Ian "H" Watkins is "furious" after Google's links to news stories apparently placed his photograph next to stories about a different Ian Watkins -- who is a convicted pedophile:

Google's algorithm appeared to be unable to differentiate between the two cases, taking a picture - from a BBC News article about the E! apology - and pairing it with a separate article by CBS News about the abuse. 

A Google spokesman added: "For some specific searches Ian H Watkins' picture is appearing in our results because he is relevant to the story, having received a court apology.

Watkins (I use this name to refer to Ian "H" Watkins unless I specify otherwise) reacted angrily to the news, posting this image of the offending search results on Twitter, and telling CBS News to "SORT THIS OUT":

Watkins received a court apology from E! Entertainment Television, who apparently ran his image with the story about the convicted pedophile, but it sounds like Watkins is still seeking some sort of remedy from Google.

In the United States, this type of claim against Google would probably be barred by section 230 of the Communications Decency Act.  If Watkins's photo appeared on a Google search result because the result linked to a news story that ran his photo with the story of the convicted pedophile, Google would not be treated as having published that photo because it was a third party who shared that photo online.  Under section 230, websites are typically immune from lawsuits arising from content that is posted on websites by third parties.  Google could argue that it is simply linking to a third-party's content, and the image posted by the author of that content.  Watkins may well have a successful claim against the news agency, though, and it sounds like he has already succeeded on some level with E!  But Watkins would probably not succeed against Google.

But even if Watkins were doomed to fail, he would do well to file the lawsuit anyway.  Today, in the aftermath of Watkins's lawyers approaching Google, a Google search of "Ian H Watkins" reveals these results:

Pretty much every result has to do with Watkins's complaint against Google (with the exception of the bearded man on the right -- who is the similarly-named convicted pedophile).  The overwhelming impression one gets from these results is that Google messed up and Watkins is calling them out.  Quite the opposite of an impression of Watkins being convicted of anything.

Even if Watkins takes no official legal action against Google, simply having his lawyers approach Google and claim damage is enough to focus the news on Google's mistake, rather than on news stories' mistaken identifications.

Franks on Section 230 of the Communications Decency Act

Mary Anne Franks writes a very interesting, approachable, and informative article on section 230 of the Communications Decency Act (CDA) over at HuffPost Tech reacting to Kevin Christopher Bollaert's (founder of the gossip website, The Dirty).  I wrote about the lower court's decision against Bollaert and his appeal earlier in this post.

As I have also mentioned previously, section 230 of the CDA is typically used to immunize websites from civil liability for posts made on these websites by third parties.

Some of Franks' most interesting discussion comes after the end of her post:

Stepping back, it is also important to consider Congress's goals in passing CDA §230. Popular rhetoric is selective on this point as well. It is true, as so often proclaimed, that the policy goals of §230 include the promotion and protection of free speech principles. Such principles are not self-evident, however. The law states that it is the policy of the Unites States to "preserve the vibrant and competitive free market that presently exists for the Internet... unfettered by Federal or State regulation." As an initial matter, whether the Internet really offers a "free market" for the exchange of ideas is a matter of considerable dispute, and the claim that the Internet is "unfettered by regulation" is demonstrably false (see above re: the thousands of laws that currently govern Internet activity). 

Moreover, free speech is not the only value protected by §230. The other, often overlooked goals of §230 include the development of technologies that "maximize user control over what information is received" by Internet users, as well as the "vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking and harassment by means of computer." In other words, the law is intended to promote and protect the values of privacy, security and liberty alongside the values of open discourse. Section 230 is an important and complex law, and it is both dangerous and inaccurate to treat it as a blanket license for online abuse.

I am not sure if I agree with all of Franks' final points -- but my views on section 230 have shifted before (I think the Michael Smith who wrote this paper would be much faster to agree with Franks), and they may shift again as I continue to think and learn more about these issues.  But whatever views one might hold on section 230, Franks' perspective is worth paying attention to.

Defamation in the English Ecclesiastical Courts

Back in the day (from earlier than the 1200s  until the 1800s), a number of English cases were heard by ecclesiastical courts.  These courts would address questions of church discipline, probate, marriage licenses and divorces, and certain defamation suits.

I learned about these courts and their jurisdiction over defamation suits in one of my classes, and I decided I would try to learn more.  I found R.B. Outhwaite's book, The Rise and Fall of the English Ecclesiastical Courts, 1500-1860 (Cambridge University Press, 2006), to be particularly helpful.  Adding an interesting (and opinionated perspective) was Thomas Clark's Perpetuation or Extinction of the Ecclesiastical Jurisdiction in Temporal Concerns (J&W Robins, 1840).  The title I just gave does not seem to be the full title of the book, but due to readability concerns I have reserved a full listing of the title for an addendum at the end of this post.

Outhwaite notes that only certain types of defamation claims were heard in ecclesiastical courts.  While suits arising from statements that the plaintiff is a thief or liar were typically pursued in common law courts, claims arising from statements that the plaintiff is an adulterer or prostitute were typically pursued in the church courts.

Outhwaite also points out the differences in the gender makeup of plaintiffs in the ecclesiastical courts compared to the common law courts.  While common law plaintiffs were typically male, many more plaintiffs in the church courts were female.  Many more defendants in the church cases were female (compared to common law defendants), though this difference was not as pronounced as the difference in plaintiffs' genders.

Outhwaite describes the statements that would typically give rise to a defamation suit in the church courts:

Men complained of being labelled as sexually active deviants - seducers, adulterers, fornicators, bastard-begetters, whore-masters and carriers of venereal disease - or of being the victims of the sexual deviance of others - so becoming cuckolds.  Women were similarly, though obviously not identically, labelled, but their overwhelming complaint was that they had been called a whore.

Outhwaite points out several reasons why individuals may have wished to pursue these defamation claims.  One theory is that these suits were filed to foreclose prosecution for crimes of sexual deviancy, but Outhwaite notes that this theory has met some opposition -- as a defamation suit would guarantee that the accusing statements would come to light.  Ultimately, it looks like maintaining one's reputation in a religious community was an important factor:

Taking the abuser to court was not only a way of demonstrating respectability; it was also a way of exacting recantation and retribution.  The abuser, if found guilty, had to bear legal costs and undergo a humiliating penance.  Even though only a minority of cases got as far as this, there was satisfaction to be derived from citing an abuser to appear before a court, making him or her incur some costs as a consequence, before perhaps accepting arbitration and a peaceful settlement.

Clark, writing at a time when these courts were still around, takes issue with this function of the courts.  Alluding to a particularly lengthy and costly defamation case, he writes:

By the constitution of these courts, they can give no damages through pronouncing judgments!  But ever mindful of their own interests, they can imprison the parties for nonpayment of costs and this has not unfrequently been done.  If in the instance alluded to the defendant had been pronounced guilty of the offense with which he was charged, the lady whose reputation was assailed and also her husband and their relations and friends, after enduring seven years protracted litigation and expense, to decide upon a simple fact, and the surmises and scandal of the public on the charge affecting character, could only have witnessed (if not prevented by imprisonment for non-payment of the costs of her success) the disgusting spectacle of the defamer suffering penance in a white sheet, pro salute animae - "for the good of the soul" - whilst professional men who had pocketed £1400 in the suit and appeal, might enjoy the farce, and retire to a tavern to drink "prosperity to spiritual jurisdiction and emoluments in temporal concerns."

While many of my posts focus on defamation in the digital age, I think that some perspective on the history of this cause of action can be useful. 

ADDENDUM: The full title of Clark's book is: Perpetuation or Extinction of the Ecclesiastical Jurisdiction in Temporal Concerns; Being an Analysis and Review of the Special and General Reports of the Ecclesiastical Commission, and of the Provisions of the Bill Founded Thereon. With Remarks and Citations in Reference to The High Court of Chancery and the Judicial Committee of Privy Council, and to Trial by Jury

Section 230 of the CDA and TheDirty.com

Over at the ACLU's blog, Lee Rowland posts about Jones v. Dirty-World Entertainment Recordings, LLC, a case that is on appeal before the Sixth Circuit.  Here is the link to the ACLU's amicus brief in that case.

The case involves section 230 of the Communications Decency Act.  This is a law I am interested in, having written about it before here.  Section 230 typically immunizes websites from material that third parties post on the website.  For instance, if I write something defamatory about somebody in this blog, that person can sue me, but Blogspot will be protected from suit by the CDA.  This law is generally praised by proponents of internet speech because it makes websites less likely to remove posted material for fear of incurring legal liability.  Critics argue that the law should be changed because section 230 immunity promotes anonymous, online harassment that websites don't need to police.  But proponents of the law reply that the law owes its existence to Congress's concern that websites should be able to police themselves without incurring liability, and that this policing can promote discussion while eliminating harassing remarks.

As for the facts of Jones, the ACLU states:

TheDirty.com is probably best known for its role in breaking the latest Anthony Weiner scandal. In 2009, the site posted an anonymously submitted story stating that Sarah Jones, a high school teacher and Cincinnati Bengals cheerleader, slept with the entire Bengals team. A second post alleged Jones had sex with her husband in her classroom and had STDs. TheDirty.com’s publisher, Nik Richie, then added his own fateful commentary at the bottom of this post: “Why are all high school teachers freaks in the sack? – nik.”

While websites are generally immune from user-posted content under section 230, the Eastern District of Kentucky held that the website here could be found liable for the various comments.  A jury then found in favor of the plaintiff and returned a verdict in her favor of $338,000.

Rowland takes issue with the court's initial finding that the plaintiff could sue the website in the first place:

The defendants claimed that Section 230 provided immunity because those posts were authored by a third party, but the judge (incorrectly) disagreed. He held, basically, that Richie was asking for it, due to the name of the site, Richie’s general “encouragement” of gossip, and his “adoption” of the anonymous defamation by wondering aloud why teachers are freaky. (It’s important to note that asking why all teachers are freaky is absolutely not itself defamatory, and no one in this case claimed otherwise.) 

. . .

The judge was flat wrong on the law. But this decision is even worse public policy. That’s because the essence of the trial court’s judgment was that by seeking critical, disparaging speech (gossip), Richie and TheDirty.com were actively seeking unlawful speech (defamation), and didn’t deserve immunity. But dirt simply doesn’t equal defamation. And equating the two would be disastrous for other sites that offer a wide array of extremely valuable speech. 

For example, consumer watchdog sites encourage users to submit reports of corporate malfeasance — speech that is inherently critical, disparaging, even damaging for the companies complained about. But Fraud.org is clearly a great public service, not a hub for criminal activity. Similarly, environmental activists at sites like Frack Check WV invite users to submit horror stories about fracking in their communities; the Bed Bug Registry asks users to report bed bug infestations.

I think that Rowland raises an interesting point about the danger of hinging the test for section 230 immunity on whether the website simply encourages unlawful or defamatory content.  Not only would such an approach be inconsistent with most of the cases on this subject, that approach would end up chilling a great deal of important speech.

But I think that the Rowland downplays the important fact that Nik Richie, the owner of the website, added his own commentary in the wake of the other defamatory comments.  And while Richie's comment, taken alone, may not be defamatory, in context, the comment seems to add to the message of the messages it responds to, and indicate that Richie is endorsing and promoting those other messages.

I don't think that this case calls for the clear denial of section 230 immunity -- the question of whether Richie's post was enough to adopt the message of the other posts could be argued in either direction.  At the same time, however, I don't think that Rowland is giving Richie's post the weight it deserves.

UPDATE: 6/17/2014

In the original version of this post, I incorrectly attributed the first block quote in this post to the Electronic Frontier Foundation (EFF).

Non-Disparagement Agreements

Andrew Crocker and Kurt Opshal of The Electronic Frontier Foundation write about a horror story arising from a customer's signing a "non-disparagement agreement."  The customer, Jen Palmer, tried to purchase an item from KlearGear, but the item was never shipped to her.  After receiving a refund, but running into trouble trying to contact the company's customer service representative, she gave a negative review of the product on Ripoffreview.com.

KlearGear wrote to Palmer three years (!) later and demanded $3,500 based on her violation of a non-disparagement clause she had signed when she had tried to purchase the item.  That clause stated:

In an effort to ensure fair and honest public feedback, and to prevent the publishing of libelous content in any form, your acceptance of this sales contract prohibits you from taking any action that negatively impacts KlearGear.com, its reputation, products, services, management or employees. 

Should you violate this clause, as determined by KlearGear.com in its sole discretion, you will be provided a seventy-two (72) hour opportunity to retract the content in question. If the content remains, in whole or in part, you will immediately be billed $3,500.00 USD for legal fees and court costs until such complete costs are determined in litigation. Should these charges remain unpaid for 30 calendar days from the billing date, your unpaid invoice will be forwarded to our third party collection firm and will be reported to consumer credit reporting agencies until paid.

Palmer was unable to pay the fee to remove the comment and was unable to pay the $3,500 demand, and ran into credit problems as a result.

The EFF reports on a number of inconsistencies with KlearGear's claim, including the question of whether this clause had even existed when Palmer had made her purchase.  The EFF also argues that the non-disparagement agreement is unconscionable, noting that consumers typically do not have any say in the provisions of purchase agreements and that the language in these agreements tends to confer substantial privileges to the seller over the consumer.

I am inclined to agree that the non-disparagement provision is unconscionable.  While I don't think that any First Amendment claims can be made here, the vast asymmetry in the agreement and the likely inability of consumers to negotiate the agreement are problematic.  Moreover, the $3,500 payout is all but guaranteed, since the payout is required upfront, and will cover litigation fees that KlearGear ends up paying, even if any defamation suit it files ends up being groundless.

And as a final note on the issue, the non-disparagement clause avenue for punishing critics appears to be a way around insurance protection that many defendants may have in typical libel cases.  Eugene Volokh notes that many standard homeowner's insurance agreements have clauses that guarantee payouts for damages paid out in a libel suit, or costs incurred in defending against such a suit.  He provides an example of one such claim:

If a claim is made or a suit is brought against any insured for damages because of bodily injury … caused by an occurrence to which this coverage applies, we will: 

1. pay up to our limit of liability for the damages for which the insured is legally liable; and 

2. provide a defense at our expense by counsel of our choice even if the allegations are groundless, false, or fraudulent…. 

POLICY DEFINITIONS …. 

“Bodily injury” means; … personal injury … arising out of … libel, slander or defamation of character; or … invasion of privacy.

A non-disparagement claim along the lines of the KlearGear agreement looks like a contract claim, and not a claim for "damages because of bodily injury," which seems to be restricted to tort claims.  And even if KlearGear were to successfully sue Palmer, such an insurance policy would cover the damages she would need to pay in that lawsuit, but not the contractually-required money she would need to pay for KlearGear's costs.

Mug Shots and Online Reputation

The New York Times has an interesting story about websites that publish mugshots, the business practices of these sites, and the impact that they have on people's lives.  Describing the case of Maxwell Birnbaum, who was arrested in 2012 for possession of drugs, the Times reports:

[T]he mug shot from his arrest is posted on a handful of for-profit Web sites, with names like Mugshots, BustedMugshots and JustMugshots. These companies routinely show up high in Google searches; a week ago, the top four results for “Maxwell Birnbaum” were mug-shot sites. 

The ostensible point of these sites is to give the public a quick way to glean the unsavory history of a neighbor, a potential date or anyone else. That sounds civic-minded, until you consider one way most of these sites make money: by charging a fee to remove the image. That fee can be anywhere from $30 to $400, or even higher. Pay up, in other words, and the picture is deleted, at least from the site that was paid. 

To Mr. Birnbaum, and millions of other Americans now captured on one or more of these sites, this sounds like extortion. Mug shots are merely artifacts of an arrest, not proof of a conviction, and many people whose images are now on display were never found guilty, or the charges against them were dropped. But these pictures can cause serious reputational damage

The Times reports that these websites are the object of a class action suit, with plaintiffs claiming that these sites violate their right to publicity and that they cause reputational damage.  Legislators have also considered bills that limit the publication of these images.

The biggest problem with these countermeasures, the Times notes, is that the publication of public records is typically protected by the First Amendment.  There is nothing false about the records, and the images are publicly available before the mugshot websites post them, as the images are typically obtained from sheriffs' websites.  And as the Times admits, mugshots do not mean that somebody has been convicted of a crime -- it is simply evidence that somebody has been arrested.

With that in mind, the fact remains that while mugshots do not prove somebody is guilty of a crime, they still have a very negative reputational impact.  People tend see arrest records and mugshots of an individual and assume that the individual is guilty of something.  Moreover, people of color -- or at least, those with names that indicate minority status -- are more likely to be burdened by the reputational impact of these websites, according to this report by Latanya Sweeney (a summary of the report is available here).

The solution to this problem seems to lie in private, rather than government, action.  As the Times describes near the end of the article, making the existence and practices of mugshot websites known to the public has caused the sites to face substantial obstacles due to the reactions of private parties.  The sites now face challenges on the financial front, with entities like MasterCard refusing to do business with mugshot websites.  Google has also begun to de-prioritize these sites' images in its search results, making it less likely that those searching for individuals' names will come across mugshots.

It will be interesting to see if public attention to these practices has any impact on these sites' practices or prominence.  If it does, this would be an interesting example of private governance in the internet domain.  I have my doubts that this problem will go away entirely, however.  Especially when it comes to online advertisements, the parties involved all have a great deal of financial interest in the matter.  Search engines want the income they obtain from ad space they can sell to mugshot websites, and those websites want the prominence that search engines give them.

In the meantime, the only thing that people can do to avoid reputational damage might be to have a name as obscure as "Michael Smith."

Forthcoming Essay: Search Engine Liability for Autocomplete Defamation: Combating the Power of Suggestion

I have uploaded the current version of my forthcoming essay, Search Engine Liability for Autocomplete Defamation: Combating the Power of Suggestion, on SSRN.  The essay will appear in the Fall issue of the Illinois Journal of Law, Technology & Policy.  Here is the abstract:

Several online search engines use autocomplete features that display search suggestions as users type search queries. This Essay investigates the potential for search engine liability for defamatory statements that are displayed through their autocomplete search suggestions. This Essay describes the technology involved, outlines potential defamation claims against search engines, and notes the obstacle presented by the Communications Decency Act (CDA). Recent legal developments limit the immunity that the CDA would typically provide to search engines and this Essay explores how prospective plaintiffs may take advantage of these developments. This Essay first discusses a potential argument from Fair Housing Council v. Roommates.com, LLC, but concludes that policy implications of this argument ultimately undermine its credibility. This Essay then turns to the less-explored case of Batzel v. Smith and concludes that Batzel provides a narrower, more direct argument against search engine immunity. This Essay concludes that prospective plaintiffs have a strong argument against search engine immunity. This removes a critical obstacle in the path of defamation claims.

I have posted previously on the immunity provided to websites by section 230 of the CDA here and here.

Another Reason I Don't Like Section 230 of the Communications Decency Act

I mentioned section 230 of the Communications Decency Act in this previous post, but I will briefly discuss it again here.  Under section 230, plaintiffs are typically barred from suing websites for defamation or other causes of action arising from the conduct of third parties who post the offending material on the website.

Take this flagrantly defamatory post as an example.  This post contains almost all of the elements that make commentators upset about section 230.  For much of the post, the author implies that I have a criminal history so extensive that it reaches back beyond the date of my birth.  I would love to sue the author of this post, but unfortunately his blog and his posts are all anonymous.  The author does refer to me as a "fellow" law student, indicating that he too may be a law student.  While normally this would preclude recovery in a lawsuit due to insolvency of the defendant, the possibility remains that the author of this post is one of those lucky students who has received a job offer in these troubling economic times.

Could I sue Wordpress for accommodating this attack on my character?  The answer, unfortunately, is no.  Under section 230, Wordpress is not to be treated as the publisher of anything posted on its website by third parties.  Section 230 has been further interpreted that this will hold true even if Wordpress has a policy of policing and removing offending content.

Courts and the legislator justify section 230 because it promotes the use of online platforms and prevents chill that may arise in the event that websites could be sued for the conduct of third parties who post on the website.  This is an admirable goal, although it may need some revision in light of the internet no longer being a developing medium of communication and expression.  In the meantime, however, section 230 remains, and those of us who are defamed by anonymous fellow law students must continue to suffer.