Section 230 ICP Allegations: Plausible or Possible?

At the very end of 2009, the Fourth Circuit ruled in Nemet Chevrolet v.  Sadly, I’m just now getting around to blogging about it.

Nemet takes issue with 20 allegedly defamatory posts that appeared on the website.  Before getting to the meat of the case, the panel reminded everyone that, per its previous ruling in Zeran, “our Circuit clearly views the § 230 provision as an immunity.”  Thus when applicable, Section 230 should stop a lawsuit dead in its tracks, not just bar liability, says the court.  Such immunity is to be “generally accorded effect at the first logical point in the litigation process…[w]e thus aim to resolve the question of § 230 immunity at the earliest possible stage of the case. . . .”

Key to its case, Nemet alleges that, at least with respect to the posts at issue, is an information content provider, and thus ineligible for Section 230 immunity.  Construing a recent Supreme Court ruling regarding the sufficiency of allegations, the court considered whether plaintiff’s allegations regarding defendant’s ICP status were plausible.

Referred to as the “Development Paragraph,” plaintiff included allegations for each allegedly actionable post that had some role in developing the post.

Distinguishing the case from Ninth Circuit’s decision, the court noted that plaintiff

has merely alleged that structured its website and its business operations to develop information related to class-action lawsuits. But there is nothing unlawful about developing this type of content; it is a legal undertaking….the amended complaint ‘does not show, or even intimate,’ that contributed to the allegedly fraudulent nature of the comments at issue.

The court found other allegations similarly lacking:

  • “Nemet fails to make any cognizable argument as to how a website operator who contacts a potential user with questions thus ‘develops’ or ‘creates’ the website content.”
  • “Nemet’s claim of revising or redrafting is both threadbare and conclusory.”

The panel concluded that the Development Paragraph failed to state facts upon which it could be concluded that it was plausible that defendant was an ICP.

As to eight of the posts, Nemet also alleged that Consumeraffairs had to some extent fabricated same (referred to as the “Fabrication Paragraph”).  Yet the sole basis for such assertion was that, utilizing the information contained in the posts, Nemet itself could not find the purported customer/poster in its records.  “There is nothing but Nemet’s speculation which pleads’s role as an actual author in the Fabrication Paragraph.”

Chief District Judge Jones dissented from this part of the ruling, opining that plaintiff’s allegations were adequate.  “By stating sufficient factual assertions, Nemet has created the reasonable inference that wrote the eight posts to attract additional complaints.”

Affirming the district court’s dismissal of the complaint, the panel’s opinion concluded that “[v]iewed in their best light, Nemet’s well-pled allegations allow us to infer no more than ‘the mere possibility’ that was responsible for the creation or development of the allegedly defamatory content at issue. Nemet has thus failed to nudge its claims that is an information content provider for any of the twenty posts across the line from the ‘conceivable to plausible.’ As a result, is entitled to § 230 immunity.”