DC Appeals Court Tosses Silly Lawsuit Woman Filed Against Google Because Someone With A Blog Said Mean Things
from the not-how-it-works dept
In late 2016, we wrote about the positively silly case that lawyer Harry Jordan filed on behalf of his client, Dawn Bennett, in which she sued Google because a guy she had once hired to do some search engine optimization work for her, and with whom there was a falling out, later wrote a mean blog about her and her company. As we noted, Bennett did not sue that person -- Scott Pierson. Instead, she and Harry Jordan went the Steve Dallas lawsuit way of filing against some tangential third party company, because that company is big and has lots of money. In this case, it meant suing Google, because Pierson's blog was hosted by Google.
As we noted, this would be an easy CDA 230 win, because Google is not at all liable for what bloggers using its blog hosting do (we also noted that the lawsuit botched the legal meaning of "defamation" -- which is generally not a good thing to do in a defamation lawsuit). And thus it was of little surprise to see the lawsuit dismissed last summer. It was an easy ruling to make given the status of CDA 230 (which, yes, is now under threat). But, Bennett appealed. And... the results of the appeal are exactly the same as the results in the district court. Case dismissed, quick and easy (in just 10 pages), because CDA 230 makes it obvious that Google is not liable.
Still, as law professor Eric Goldman notes in his post about this ruling, the DC Circuit makes some useful statements about CDA 230 and how it works.
Bennett argues that by establishing and enforcing its Blogger Content Policy, Google is influencing— and thus creating—the content it publishes. This argument ignores the core of CDA immunity, that is, “the very essence of publishing is making the decision whether to print or retract a given piece of content.” Klayman, 753 F.3d at 1359. In other words, there is a sharp dividing line between input and output in the CDA context. Here, the input is the content of Pierson’s negative blog about Bennett’s business; that blog was created exclusively by Pierson. Google’s role was strictly one of output control; it had the choice of leaving Pierson’s post on its website or retracting it. It did not edit Pierson’s post nor did it dictate what Pierson should write. Because Google’s choice was limited to a “yes” or “no” decision whether to remove the post, its action constituted “the very essence of publishing.”
I think it's also worth highlighting another point that the court makes -- which is frequently ignored or misunderstood by people who are now attacking CDA 230 (including members of Congress). CDA 230 is designed to enable sites to monitor and make decisions on moderation without those decisions impacting their liability. In other words, it actually creates a scenario where platforms are more likely to monitor, rather than putting their heads in the sand to avoid "knowing" anything. Indeed, the court uses the "heads in the sand" language:
The intent of the CDA is thus to promote rather than chill internet speech.... By the same token, however, the CDA “encourage[s] service providers to self-regulate the dissemination of offensive material over their services.”... In that respect, the CDA corrected the trajectory of earlier state court decisions that had held computer service providers liable when they removed some—but not all—offensive material from their websites.... Put differently, section 230 incentivized companies to neither restrict content nor bury their heads in the sand in order to avoid liability.
This is such an important point -- and it's good to have it clearly stated in a court ruling. One hopes it still matters after Congress is done mucking with CDA 230.
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Filed Under: cda 230, dawn bennett, defamation, harry jordan, scott pierson, section 230
Companies: google
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Also, why would a lawyer take this case, they don't get paid if they don't win, so why would a lawyer take this case? Unless they are really stupid (or have nothing better to do) they know they would lose.
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"Put differently, section 230 incentivized companies to neither restrict content nor bury their heads in the sand in order to avoid liability." -- Is SAME as I say. But Techdirt construes 230 to be ABSOLUTE immunity, plus power to CONTROL all speech.
Since YOU put that in, yet again making effort to trot out the pro-corporatist position, I'm on topic:
I've said that we agree "platforms" are not liable for content "users" publish -- so long as comply with "good faith" requirement and ALL OTHER law -- but YOU believe that corporations can IGNORE ALL without liability.
Clearly the judge sees the middle ground that I do. There is in any event over-arching / related law. Corporations are not licensed to be a new form of royalty and rule over "natural persons".
You simply re-phrase to exclude that middle, totally way that corporations want: no requirement to police, no duty to check / act even when complaints are made, no responsibility ever. That's not The Law, kid.
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Re: "Put differently, section 230 incentivized companies to neither restrict content nor bury their heads in the sand in order to avoid liability." -- Is SAME as I say. But Techdirt construes 230 to be ABSOLUTE immunity, plus power to CONTROL all speech.
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Re: "Put differently, section 230 incentivized companies to neither restrict content nor bury their heads in the sand in order to avoid liability." -- Is SAME as I say. But Techdirt construes 230 to be ABSOLUTE immunity, plus power to CONTROL all speech.
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Ugh.
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Re: "Put differently, section 230 incentivized companies to neither restrict content nor bury their heads in the sand in order to avoid liability." -- Is SAME as I say. But Techdirt construes 230 to be ABSOLUTE immunity, plus power to CONTROL al
This is easily exampled: Masnick believes that he can ignore the vile ad hom directed at persons, and that he could at any time choose to "moderate" or remove comments, all up to him: he becomes a little King merely because pays for a web-site, rather than giving up SOME control and ownership so soon as makes it available to the public. The Law is that businesses exist only by permission of the public, and in exchange agree to serve the public's good (too), not just "private".
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Re: Re: "Put differently, section 230 incentivized companies to neither restrict content nor bury their heads in the sand in order to avoid liability." -- Is SAME as I say. But Techdirt construes 230 to be ABSOLUTE immunity, plus power to CONTRO
No, I'm not. I hold exactly as you state: they're to do SOME in good faith, but not liable for every last bit. -- But neither do corporations have unlimited control over what or who goes out: they are to provide SERVICE to the public, not rule over it. Period.
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Re: "Put differently, section 230 incentivized companies to neither restrict content nor bury their heads in the sand in order to avoid liability." -- Is SAME as I say. But Techdirt construes 230 to be ABSOLUTE immunity, plus power to CONTROL all speech.
Techdirt has the length limit now set to 256 characters -- after some fooling around with it that wasted my time -- as found by trial-and-error, since the site will never state anything more informative than the date.
Anyway, that's a "legal" limit which I have NO control over and why shouldn't I take advantage of it? Any BLAME is due Techdirt, NOT mere users of the site.
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Re: Re: "Put differently, section 230 incentivized companies to neither restrict content nor bury their heads in the sand in order to avoid liability." -- Is SAME as I say. But Techdirt construes 230 to be ABSOLUTE immunity, plus power to CONTROL all spe
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Re: Re: "Put differently, section 230 incentivized companies to neither restrict content nor bury their heads in the sand in order to avoid liability." -- Is SAME as I say. But Techdirt construes 230 to be ABSOLUTE immunity, plus power to CONTRO
Well, I TRY, snowflake, which is more than you do with your stock one-liner.
How about you show your awesome expertise? DISH THE TRUTH. Readers are eager for it.
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That part is imaginary. Nothing in 230 says any given platform has to allow anything on their service. Nothing in any other law says that either. Do you think a Christian social network should allow Satanist propaganda on their platform, even if presented in "good" taste?
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Again, please provide citations for your claims.
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Re: "Put differently, section 230 incentivized companies to neither restrict content nor bury their heads in the sand in order to avoid liability." -- Is SAME as I say. But Techdirt construes 230 to be ABSOLUTE immunity, plus power to CONTROL all speech.
To quote a somewhat infamous film: "I don't think it means what you think it means."
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Does your wacky theory also apply to corporations that hold copyrights?
Would the company that holds the copyright to your "$100 million dollar movie" have "to provide SERVICE to the public" by giving free copies to those can't afford to buy one or something similar?
Inquiring minds want to know because you when you are talking about copyright, you feel that the copyright holder should have 100% control of everything in perpetuity and when you talk about internet platforms they shouldn't be allowed to have 100% control of the platforms they created.
Bipolar much?
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Re: Re: "Put differently, section 230 incentivized companies to neither restrict content nor bury their heads in the sand in order to avoid liability." -- Is SAME as I say. But Techdirt construes 230 to be ABSOLUTE immunity, plus power to CONTROL all spee
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This would be a good thing for Google to do, as it sets a precedent of "come after us with silly claims we WILL STEP ON YOUR FACE", saving them money in the long run.
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Re: Re: Re: "Put differently, section 230 incentivized companies to neither restrict content nor bury their heads in the sand in order to avoid liability." -- Is SAME as I say. But Techdirt construes 230 to be ABSOLUTE immunity, plus power to CO
Random commenter virgin I'm guessing? (or hoping because if you've been doing this for more than week, you're really REALLY bad at it and should quit and go back to whatever you did before - giving handjobs to meth heads for money?)
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Re: Re: "Put differently, section 230 (blah blah blah)
You're free to believe what you like. But if you believe the law requires this, you're simply wrong (though I welcome any citations to applicable and relevant legal authority in the United States). Site owners/operators (be they individuals, partnerships, corporations, LLCs, trusts, or anything else) have no legal duty to "police" comments in any way, but if they choose to do so, are free to do so in any way they choose--in good faith, in bad faith, purely at random, or in any other way they like.
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It's probably so damn obvious, that this is why 230 was included in Title V. Duh, is my phone company a publisher? Is a utility company or a city a publisher if i graffiti or post flyers? No? Well neither is a hosting service.
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Re: Re: Re: "Put differently, section 230 (blah blah blah)
Come on, man, you know he's just going to say "COMMON LAW" 73 times.
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Re: Re: "Put differently, section 230 incentivized companies to neither restrict content nor bury their heads in the sand in order to avoid liability." -- Is SAME as I say. But Techdirt construes 230 to be ABSOLUTE immunity, plus power to CONTRO
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in accord with common law
You shall henceforth never hear the words "obvious", "common law" or "common sense" from my lips.
You fucking liar, blue boy.
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out_of_the_blue just hates it when due process is enforced.
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Re: "Put differently, section 230 incentivized companies to neither restrict content nor bury their heads in the sand in order to avoid liability." -- Is SAME as I say. But Techdirt construes 230 to be ABSOLUTE immunity, plus power to CONTROL all speech.
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Re: Re: Re: Re: "Put differently, section 230 (blah blah blah)
So, if he can point to a decision since the enactment of the CDA that says, "despite Section 230's protections, site operators have an affirmative obligation to moderate comments made on their site, and that moderation must be done in good faith," then he'd be right. But of course he can't do that, as there is no such decision, which means he's wrong.
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Re: Re: Re: Re: Re: "Put differently, section 230 (blah blah blah)
So are Section 230, censorship, and globalism, but that doesn't mean he can use those words correctly in a sentence.
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