NOTE: “This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.”
DATE: Decided July 13, 2005
COURT: United States Court of Appeals, Ninth Circuit (before B. Fletcher, Rymer and Fisher, Circuit Judges. Rymer dissented on jurisdictional grounds)
PLAINTIFF: International Padi, Inc.
MATERIAL ALLEGATIONS: According to the District Court’s July 10, 2003 decision, Mr. Wilt posted an article on a bulletin board on Diverlink’s website. The article, which he wrote, “compared the certification standards of various diving agencies and included comments on and descriptions of Plaintiff’s certification requirements. Defendant later moved Wilt’s article to a more prominent location on the website. . . . and wrote a preface to introduce the article, but the allegedly defamatory statements are found in the article, not the preface.” Furthermore, “Defendant encouraged diving agencies to contact Wilt concerning the contents of the article, but Defendant’s contribution was limited to grammatical and spelling corrections.” “Plaintiff claims the Wilt article published by Defendant contains false statements that are injurious to Plaintiff’s business and reputation.”
CAUSES OF ACTION: Defamation, trade libel and unfair competition
PROCEDURAL HISTORY: U.S. District Court for the Central District of California, Gary L. Taylor, District Judge granted defendants anti-SLAPP motion to strike the complaint, dismissed the case on the merits and awarded Diverlink attorneys’ fees and costs totaling over $196,000.00. Plaintiff appealed.
PROCEDURAL ACTION TAKEN HERE: Affirmed on the merits.
OUTCOME: “Under the definitions set forth under the statute and the evidence submitted, Diverlink is entitled to § 230(c)(1) immunity.”
OPINION: Plaintiff, an organization that certifies scuba divers, had the burden to establish a reasonable probability of prevailing on its claims. However, “PADI cannot establish a probability of prevailing on its claims, because Diverlink is immune from liability for defamation under 47 U.S.C. § 230(c)(1).”
“The evidence before us establishes that Diverlink [a diving website] did not write any of the allegedly defamatory statements, but was simply the publisher of an article written by Walt Wilt that set forth those statements. Even taking all the evidence (such as emails or other articles written by Diverlink) in the light most favorable to PADI, PADI still cannot establish that Diverlink fails to qualify for § 230(c)(1) immunity.”