RipOffReport victorious (again) in Arizona

Last October I wrote about Global Royalties’ suit against RipOffReport (a website operated by Xcentric Ventures), which was dismissed on Section 230 grounds. The plaintiffs subsequently amended their complaint (still alleging defamation), Xcentric filed a motion to dismiss (still arguing Section 230 immunity), and, again, District Judge Frederick J. Martone, just last week, granted the motion, notwithstanding the Court’s belief that “[i]t is obvious that a website entitled RipoffReport encourages the publication of defamatory content.”

Plaintiffs made multiple attempts in their motion papers to neutralize Section 230’s protections here. First, relying on Batzel, plaintiffs argued that once the non-party poster requested removal of the allegedly defamatory content, “the statements were no longer ‘provided for publication,’ and defendants’ CDA immunity ceased at that point.” But as Judge Martone explained (recall that Mr. Sullivan is the non-party poster):

in Batzel, the court did not interpret “provided” as an ongoing process. The focus was on expectations regarding communications when they are made. The court was concerned that technology users would be discouraged from sending e-mails if website operators have no incentive to evaluate whether the content they receive is meant to be broadcast over the internet or kept private. [] There are no similar concerns in this action; Sullivan obviously meant his messages to appear on the website. Whether website operators have a duty to withdraw content when an author later changes his mind is another question-one that is not addressed by Batzel.

On the subject of notice, the Court, citing Zeran, also reminded plaintiffs that

[w]ebsite-operator liability based on notice has been rejected, because each “notification would require a careful yet rapid investigation of the circumstances surrounding the posted information, a legal judgment concerning the information’s defamatory character, and an on-the-spot editorial decision whether to risk liability by allowing continued publication. . . . We conclude that liability based on an author’s notice, workable or not, is without statutory support and is contrary to well-settled precedent that the CDA is a complete bar to suit against a website operator for its “exercise of a publisher’s traditional editorial functions-such as deciding whether to publish, withdraw, postpone or alter content.

Judge Martone added that the notice argument remained moot, notwithstanding the fact that the poster of the allegedly defamatory post himself was purportedly the person requesting its removal.

Next, plaintiffs claimed that “defendants themselves constitute an “information content provider” with respect to the posted content.” The Court was not persuaded. “Plaintiffs allege only the most minor participation by defendants in actually composing the allegedly defamatory postings: Defendants provided a list of categories from which Sullivan selected the title “Con Artists” for his post. As in our order dismissing the original complaint, we conclude that this participation is insufficient as a matter of law to make defendants information content providers with respect to the postings.”

Plaintiffs also made the related argument that “defendants encourage defamatory postings from others for their own financial gain and, therefore, are partly responsible for the “creation or development” of the messages.” The Court dismissed this argument as not supported by the law (“[u]nless Congress amends the statute, it is legally (although perhaps not ethically) beside the point whether defendants refuse to remove the material, or how they might use it to their advantage”) or plaintiffs’ allegations (“plaintiffs have not alleged that defendants solicited Sullivan’s postings in particular, or that they specifically solicited any postings targeting Global. Nor have they alleged that defendants altered Sullivan’s comments, or had any more than the most passive involvement (providing a list of possible titles) in composing them”).

The Court was unwilling to stay the case to await the Ninth Circuit’s en banc decision. Fair enough. But it sure will be nice to get some more guidance on the implications of the use and content of material produced by a website operator.


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