Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, June 9, 2006

Website Operator Not "Information Content Provider"; District Court Dismisses Lawsuit

A district court judge has found that a website operator may avail himself of the protections of Section 230 of the Communications Decency Act in defending himself against a defamation suit brought by an unhappy plaintiff. In DiMeo v. Max, plaintiff Anthony DiMeo sued Tucker Max over website postings criticizing DiMeo's 2005 New Year's Eve party. His complaint was not that Max wrote the postings himself, "but only that Max `through his [Web site] publishes defamatory statements aimed at Plaintiff..." ...Max does not dispute that he selects, removes, and alters posts on the message boards...."

The plaintiff filed in Pennsylvania state court. The defendant, a Duke Law School graduate, promptly removed to federal court. "About a week later, Max filed the instant motion dismiss which DiMeo opposes. At the end of his response, DiMeo adds a one-sentence request for leave to file an amended complaint. We share grant Max's motion, deny DiMeo's request...and dismiss this matter with prejudice."

In its analysis, the court examines the purpose of Section 230 [to encourage the free flow of ideas on the 'net] and and applies it to the case at bar. "At the outset, DiMeo's...claim treat Max as the publisher or speaker of the six posts he finds offensive. DiMeo does not allege that Max wrote any of the posts. Instead, he claims only that Max "through his [Web site] publishes defamatory statements aimed at Plaintiff..." Max did not create the anonymous posts. The posters authored them entirely on their own. In the face of these inconvenient realities, DiMeo falls back on the position that, because Max can select which posts to publish and edits their content, he exercises a degree of editorial control that rises to the "development of information."...If "development of information" carried the liberal definition that DiMeo suggests, then [Section] 230 would deter the very behavior that Congress sought to encourage. In other words [Section]230(c)(1) would not protect services that edited or removed offensive material. Yet, as noted earlier, one of Congress's goals...was to promote this kind of self-regulation. Thus, "development of information" must mean "something more substantial than merely editing portions of [content] and selecting materials for publication."...Because DiMeo alleges that Max did no more than select and edit posts, we cannot consider him to be the "provider" of the "content" that DiMeo finds to be offensive."

DiMeo also attempted to hold Max civilly liable under a criminal statute. "At the threshold, DiMeo bases Count Two on a criminal statute, and he does not even try to show that [Section] 223(a)(1)(3) provides a private right of action....Even putting that threshold problem aside, Count Two would still fail for at least two other reasons. First ...[the statute] applies only to one who uses a telecommunications device "without disclosing [one's] identity." Here, however, DiMeo does not allege that Max failed to disclose his identity....Max's Web called, the message boards the "Tucker Max Message Boards," and Max himself posts messages in his own name.  Second, [the statute] applies only to one who "makes a telephone call or utilizes a telecommunications device." As Max made absolutely no telephone call, DiMeo must fall back on the position that he "utilize[d] a telecommucations device." The problem with that reading is that in 47 U.S.C. [Section] 223(h)(1)(B), Congress emphasized that the term "telecommunications device...does not include an interactive computer service." Because we earlier found that Max's Web site is an interactive computer service, [the section]--even if there were a private right of action--would be unavailing."

Read the entire ruling here.

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