In a recent case from the Eastern District of Missouri, Cornelius v. DeLuca (E.D. Aug. 18, 2009), the district court addressed whether a fitness website and online retailer was liable for negative comments and reviews posted by users concerning plaintiffs’ dietary supplements. In Cornelius, plaintiffs Cornelius and Syntrax Innovations, Inc. alleged that its competitors were posting on defendants’ website “libelous statements” about the plaintiff and had “tortuously interfered with plaintiffs’ business expectancies.” Further, plaintiffs alleged that Ryan Deluca and Bryna Mathews DeLuca, principals of the website in question, Bodybuilding.com, had engaged in a “civil conspiracy” with the competitors to “post libelous statements and to tortuously interfere with plaintiffs’ business expectancies.” Specifically, plaintiffs alleged that the internet website bodybuilding.com was an online retailer for the sale of nutraceuticals, including those manufactured by plaintiffs, and that the website allowed representatives of plaintiffs’ competitors to post “libelous statements regarding plaintiffs and their products” in the public forums and comments. Finally, plaintiffs alleged that the defendants assisted the competitors by posting the libelous statements which were false and open to the public.
Claiming immunity under the Communications Decency Act, 47 U.S.C. § 230 (“CDA”), defendants moved to dismiss the civil conspiracy count of plaintiffs’ complaint. The defendants argued that as operators of bodybuilding.com they were merely a provider of an interactive service, and thus, could not be held liable for civil conspiracy in connection with the allegedly libelous statements posted on their site.
The CDA was enacted in 1996 with the “primary goal . . . to control the exposure of minors to indecent material” over the internet. Courts have recognized that “an important purpose of the CDA was to encourage internet service providers to self regulate the dissemination of offensive materials over their services.” (Zeran v. America OnLine, Inc. (4th Cir. 1997) 129 F.3d 327, 331, cert. denied (1998) 524 U.S. 937.) Courts have also noted that a second goal of the CDA was to avoid the chilling effect upon internet free speech that would be occasioned by imposing tort liability upon companies that do not create harmful messages, but rather, are intermediaries for their delivery. Thus, CDA immunity is available to an interactive computer service provider or user who undertakes good faith efforts to restrict access to objectionable material. In order for immunity to apply, a plaintiff must establish three elements: (1) the defendant is a provider or user of an interactive computer service; (2) the cause of action treats the defendant as a publisher or speaker of information; and (3) the information at issue is provided by another information content provider.
In determining liability under the CDA, the court stated that while a provider cannot be liable for the statements of others, it can be liable for its own statements. In reviewing plaintiffs’ complaint, the court found that plaintiffs did not make any specific allegations as to how the defendants “conspired” with the plaintiffs’ competitors to post these allegedly libelous statements other than through their operation of the website’s message board. Significantly, the court concluded that “not a single statement [posted on the website] is alleged to be attributable to the defendants.” As a result, the court granted the defendants’ motion to dismiss because the plaintiffs’ complaint did not set forth any facts that could make the defendants liable for statements made by others, in light of the CDA.
This is just one of many cases where the courts have strictly construed section 230 as providing full immunity to internet providers whose users – not the providers — post defamatory information or commit other tortuous conduct. See e.g., Zeran v. America Online, Inc., 958 F. Supp. 1124 (E.D.Va. 1997), aff’d., 129 F.3d 327 (4th Cir. 1997), cert. denied, 524 U.S. 937 (1998) (Court held AOL not liable pursuant to the CDA for defamatory statement posted by an AOL subscriber in numerous AOL bulletin boards); Doe v. GTE Corp., 347 F.3d 655 (7th Cir. 2003) (Court held that the CDA protected Internet Service Provider (ISP) from liability to college athletes for the ISP’s customer’s use of service to post images of athletes who were unknowingly recorded while in a locker room setting).