Winter v. Bassett

NOTE: This is an unpublished opinion. “Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).”

DATE: Decided December 12, 2005

COURT: United States Court of Appeals, Fourth Circuit (before Wilkins, Chief Judge, and Duncan, Circuit Judge) “The decision is filed by a quorum of the panel pursuant to 28 U.S.C. § 46(d). Unpublished Per Curiam opinion.

PLAINTIFFS: Steve Winter and Prerapture Solutions, Incorporated, d/b/a Sellcom

DEFENDANTS: Mark Bassett; Peter William Sachs; Michael Schidell; Steve Adams; William Cousert; Camille Klein; Dave Ratcliffe; Donnie R. Hayes; William Arthur Miller, Jr.; Jerry Moon; Carl McCaskey; Mark Gwynn; Brian Boggs; Andy Engle; Gospel Films, Incorporated, d/b/a; Verizon South, Incorporated; Steve Buehler; AT & T; Psinet, Incorporated; KC Data Corporation, d/b/a Slurp Net; Yahoo! Incorporated, Defendants-Appellees, and Time Warner Telecom Holdings, Incorporated, d/b/a (not an appellee)


MATERIAL ALLEGATIONS: According to the District Court opinion, plaintiffs alleged that defendant Sachs created a website – – to “publish negative, false, and inflammatory information” about Plaintiffs. They further allege that the individual defendants, plus Gospel Films, “engaged in action to cause harm” to Plaintiffs by

“solicit[ing] others to publish false and demeaning information by referring them to websites on the internet that contained false information regarding” Plaintiffs.

“include[ing] false information that [Plaintiffs] engaged in criminal conduct including child pornography, engaged in spamming over the internet, had been sanctioned by the courts, and other false statements” on the aforementioned website.”

“contact[ing] others, including [Plaintiffs’] suppliers, and encouraged them not to do business with [Plaintiffs].”

“hack[ing] into his internet path and published the topography of [Plaintiffs’] network on the internet.”

“creat[ing] winternoceum a website that provided software to [ISPs] that allowed the ISPs to cancel all of [Plaintiffs’] posts.”

“contact[ing] several ISPs in an effort to end [Plaintiffs’] internet access and in fact end[ing Plaintiffs’] services with several ISPs.”

“creat[ing] a climate of debate where Winter and his family were threatened with physical violence and death . . . the climate was such that when Winter complained of the defendants’ activities to ISPs he was not taken seriously.”

Winter further alleged that as a result of the above, Yahoo “included, in its search engine, links to several internet sites that contained defamatory information about him.” Plaintiffs allege that they notified the ISP defendants that “their services were being used for harassment, and other wrongful criminal activities by several of the defendants in this action.” As a result, Verizon apparently restricted Winter’s internet access.

CAUSES OF ACTION: Civil conspiracy, intentional infliction of emotional distress, defamation, knowingly allowing “abuse of service” (involves a “question of federal law”), and unfair and deceptive trade practices.

PROCEDURAL HISTORY: Appeal from the U.S. District Court for the Middle District of North Carolina, N. Carlton Tilley, Jr., Chief District Judge.

Below, the District Court noted that several defendants challenged personal jurisdiction. The court ruled that jurisdiction over defendant Gospel Films based on its website – – was not proper. Similarly, the court ruled that no personal jurisdiction existed over various individual defendants.

Other defendants presented a FRCP 12(b)(6) motion to dismiss. The court, relying on Zeran, noted that plaintiffs are “seeking to hold the ISPs liable for a ‘publisher’s traditional editorial functions. . . . [t]he Fourth Circuit has clearly held that suits of this nature are barred under the plain language of the statute.” The court added that plaintiffs failed to show “that a duty is created under §230.”

The court found that defendants enjoyed immunity, per Section 230, as to the “knowingly allow[ing] abuse of service” and unfair and deceptive trade practices claims. “The Fourth Circuit has clearly held that § 230 creates a federal immunity to any cause of action that would make ISPs liable for information originating with a third-party user of the service.”

As for the first three claims aimed at Yahoo alone, the Court noted that “Yahoo did not create or develop the content for its internet services or sites, but instead gathered and sorted information provided by third parties. Any action against Yahoo for civil conspiracy, [intentional infliction of emotional distress], or defamation would hold Yahoo liable for its editorial decisions involving the content of third parties.” Yahoo is immune from each claim.

The court remanded remaining state law claims against remaining individual defendants to a North Carolina state court.

PROCEDURAL ACTION TAKEN HERE: “We find no reversible error. Therefore, we affirm on the basis of the well-reasoned opinions of the district court.”

OUTCOME: In a footnote, the panel stated that “Winter attempts to hold the ISP defendants liable for allegedly hosting materials on the internet that Winter claims caused him harm. As the district court held, 47 U.S.C. § 230 expressly grants immunity to the ISP defendants for these alleged actions [citing Zeran].”