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New Attempt To Get Around Section 230 In Apparent Effort To Bury Small Site With Legal Expenses

from the this-should-not-work dept

Mon, Jan 25th 2010 3:41pm — Mike Masnick

We've seen all sorts of attempts to get around Section 230 safe harbors by various companies -- almost all of which have failed. But they keep on trying. Paul Alan Levy alerts us to a new case, in which he (and Public Citizen) are helping out, that involves a company called Vision Media TV, whose business has been heavily criticized in the press. According to the various reports, the company calls organizations to get them to take part in a TV show with a semi-famous host, which they claim will be shown on TV. Eventually, the reports claim, it comes out that the "production costs" are over $20,000 and the TV coverage is either non-existent or significantly less than suggested. I've actually received similar calls (though I don't know if it was from Vision Media). It seems like it should be pretty common knowledge that if someone is asking you to pay to get on a TV program (especially one you haven't actually seen on TV), you should proceed with caution.

However, Vision Media TV disagrees very much with those news reports, though it has not sued the likes of the NY Times that wrote them. Instead, it has gone after smaller players. The latest case, which Paul wrote about, involves the rather useful site 800notes.com, which lets people discuss telemarketers. There was a section of people discussing the calls from Vision Media, and so Vision asked 800notes to take them down. Of course, 800notes is protected (reasonably) by Section 230 safe harbors. Vision Media TV apparently responded by suggesting that it knows how to get around Section 230 safe harbors and later filed suit against the site, suggesting that it would be a lot less expensive to just remove the comments than to deal with the lawsuit.

To get around Section 230, the company apparently tried a bunch of things. Public Citizen summarizes in its brief:

It pleaded claims for "false light," "tortious interference with business opportunity," and "trade libel," and attached a potpourri of documents that were apparently intended to show the loss of business that the message board postings had occasioned. In an effort to plead around Forte's Section 230 immunity, Vision Media repeatedly but generally alleged that Forte had authored some content on the web site, that she had deliberately removed favorable postings about Vision Media to make it look worse, that she had "substantially alter[ed] and edit[ed' others['] posts," and that she had "actively encourage[d] circumvention of legally binding agreements" that forbade unidentified persons from disparaging Vision Media.... The complaint also mentioned in passing Vision Media's trademark and used the terms "dilute" and "infringement," but did not plead any claim under the trademark laws. Although the complaint went on for 16 pages and included 20 pages of exhibits, the complaint neither set forth the allegedly defamatory (or false light) posts nor specified the portions of posts that were allegedly authored by Forte.

The point about her removing favorable posts is explained because Forte was alerted to about two dozen favorable posts about Vision Media that showed up at around the same time, but came from just two IP addresses -- so she made the reasonable assumption that they were spam and deleted them. However, she did suggest to Vision Media that they identify themselves and respond to critics publicly -- which the company did, and those posts remain on the site, showing that she has no problem with positive posts, just not ones that appear to be spammy.

Anyway, it appears that all of this is to hope that the company can at least get around a quick Section 230 dismissal to burden the site with legal costs, and Levy and the crew at Public Citizen are making the case that Section 230 obviously applies here. Hopefully the judge agrees.

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Filed Under: liability, safe harbors, section 230
Companies: 800notes, vision media tv

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Matt (profile), 25 Jan 2010 @ 4:31pm

Where was this filed???
In Federal Court, the new pleading standards are designed to significantly cut back on frivolous suits like this one. If there are no persuasive allegations that are sufficient to make out a claim, the complaint does not pass Rule 8 muster and should be dismissed. While specificity is not required, a general allegation that someone did something bad should not work.

It would be fun to read the complaint and the motion to dismiss.
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Anonymous Coward, 25 Jan 2010 @ 5:38pm

Streisand Effect
Sounds like a scam
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Silverwolf, 26 Jan 2010 @ 12:15am

Go Streisand Effect
I had never heard of this 800notes.com before, but I've bookmarked it now. Its a fantastic site you should check it out. I get a lot of random telemarketing/scammy calls like i'm sure most people do and this is a place to find out about them and warn other people before they get scammed.
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Ronald J Riley (profile), 26 Jan 2010 @ 6:38am

Public Citizen Is A Nonprofit - Donate
Public Citizen Litigation Group has been doing great work like this for as long as I can remember. It is important to remember that the financial meltdown has severely impacted all nonprofits.
Those which are higher profile are getting the bulk of what little cash is available and really good organizations like Public Citizen who are not constantly pestering people are not getting their fair share.
For years I have intentionally focused on contributing to lessor known organizations based in my belief that the high profile ones already have plenty of donors.
I also always make donations direct to organizations rather than doing so when someone calls. The reason is that those calling are usually telemarketer fund raising companies who take a huge chunk of what you give for themselves.
Please support the Public Citizen Litigation Group with a Donation.
Ronald J. Riley,
I am speaking only on my own behalf.
Affiliations:
President - www.PIAUSA.org - RJR at PIAUSA.org
Executive Director - www.InventorEd.org - RJR at InvEd.org
Senior Fellow - www.PatentPolicy.org
President - Alliance for American Innovation
Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
Washington, DC
Direct (810) 597-0194 / (202) 318-1595 - 9 am to 8 pm EST.
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BearGriz72 (profile), 26 Jan 2010 @ 10:51am

Re: Public Citizen Is A Nonprofit - Donate
Whoa! Did Hell just freeze over or did I enter a parallel universe?
I basically agree with RJR on every point in that comment.

� Public Citizen has been doing great work.
� Non-Profits with a higher profile are getting the lion's share of funding.
� Some good organizations that are not constantly pestering people are having a hard time.
� High profile organizations usually already have many donors. (Although that does not mean thy don't need more)
� Donate direct to organizations rather than doing so when someone calls. (Both because of the telemarketer fund raising companies taking a huge cut of donations and also because of social engineering / phishing scams)
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The Anti-Mike (profile), 26 Jan 2010 @ 8:51pm

In my mind, when the operator moves from just "operating a service" and gets into editing content, they cross a line from innocent host to active content purveyor.

Basically, if they will edit out positive posts, but leave negative one intact, they are now have editorial control over the product. How much would they need to do to be a content provider rather than a service provider?

I think there is too much of a rush to lump every website into the category of being a service, rather than looking at what they actually do.
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Anonymous Coward, 26 Jan 2010 @ 8:59pm

Re:
Yeah, every site should just let itself be overrun with spam. After all, if they try to remove it, they'll be evil "active content purveyors" that must be sued into oblivion!
[ link to this | view in thread ]
The Anti-Mike (profile), 26 Jan 2010 @ 10:39pm

Re: Re:
Spam by it's nature isn't relevant to a discussion. What she removed was material she though might be spam that was pro-product, whatever that may be. Effectively, she allowed negative comments, but removed these positive posts that might be spam.

Spam would be someone coming here posting up links to pill sites or "work at home".

No?
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Different AC, 27 Jan 2010 @ 2:15am

Re: Re: Re:
Multiple posts coming from the same IP addresses almost always qualifies a spam. Spam is not, by definition, merely advertisements. It includes such ballot stuffing methods as as this. Good thing you don't get to decide our laws. Got your head stuffed so far up your rear you don't pay attention to niggling little details like this.
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Anonymous Coward, 27 Jan 2010 @ 7:27am

Re: Re: Re:
No, though I'm not surprised that you think that someone spamming positive comments about a company isn't spamming. After all, it's what you do here all the time.
[ link to this | view in thread ]
JT, 27 Jan 2010 @ 8:30am

Re: editing out posts
I visit 800notes on regularly and so saw a number of the "postivie posts" you are referring to prior to their deletion. There were reportedly around twenty or so and the ones I saw were posted as individuals claiming to be customers and to have had positive experiences with VM. At the time they looked funny because the wording was so similar and vague as to details. As it turned out, they all came from two URLs even though all were supposedly posted by different people. It seemed obvious at the time to long-time readers like me that VM was manufacturing good reviews for themselves to salt the site. (This is not uncommon at all. Many telemarketers pull this stunt and it is usually pretty obvious.) As a result, 800notes deleted them in their entirety, but did not edit them.
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Just 800Notes?
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