Earlier this month, the Fifth Circuit appeals court tossed out the lawsuit that Google had filed against Mississippi Attorney General Jim Hood, following Hood's decision to send a subpoena that was written by the MPAA's lawyers, as part of a plan by the MPAA to pay money to get state Attorneys General to attack Google.
While some in the legacy copyright world painted the ruling in the Fifth Circuit as a "victory" for Jim Hood, and a loss for Google, anyone reading the details would recognize it was anything but that. The court made it pretty clear that Hood's subpoena was ridiculous and had no chance of surviving a judicial review... but dumped the case on a procedural issue, arguing that since Jim Hood had not yet taken any action concerning Google's unwillingness to respond to parts of the subpoena, there was nothing to dispute. Basically, the court said "wait until Hood actually tries to force you to do something... and then we'll tell him his subpoena is bogus."
By letter of April 22, 2016, Hood withdrew the subpoena that Google had challenged.
That should be a pretty clear indication that this wasn't the victory some of the MPAA/Hood supporters have been claiming. Of course, Google does think it's entirely possible that Hood will issue an updated subpoena, which is part of the reason that it's asking the court to review the ruling. In a later footnote it points out that along with the withdrawal letter, Hood did warn them that the letter requiring Google to retain documents for possible litigation "remains in effect."
As for the meat of Google's petition, the company argues that the court was wrong to dump the entire lawsuit, pointing out that there were two claims in the original filing -- one for injunctive relief (i.e., blocking Hood from doing anything with the subpoena) and one for declaratory judgment (basically saying that the company was doing nothing wrong). The company says that the ruling tossing the lawsuit just referred to the injunctive relief question, not the declaratory judgment -- and further makes the argument that there was a real risk of Hood pursuing unconstitutional measures, meaning that a lawsuit for declaratory judgment is perfectly reasonable.
The panel directed the district court to dismiss the entire case as unripe
because Google had not shown an “imminent threat of irreparable injury.” ...
But that standard does not apply to Google’s claims for declaratory relief regarding
threatened enforcement action. Under settled law, such claims “need cross only a
low threshold; the Supreme Court requires no more than a ‘credible threat of
prosecution,’ one that is not ‘chimerical,’ or ‘imaginary or speculative.’”
.... Google met that standard. Accordingly,
Google requests that the panel amend its decision to permit Google’s claims for
declaratory relief regarding threatened enforcement action to proceed.
Of course, it's also possible that the court may argue that even if that's true, the whole thing is moot now that Hood has withdrawn the subpoena.
Google tries to address that as well, but I'm not convinced the court will buy it.
In addition to identifying specific conduct he deemed unlawful, Hood took
concrete steps that reinforced the peril Google faces. He wrote the company’s
outside counsel requesting that Google “preserve potentially relevant information
that may be used as evidence in pending or reasonably foreseeable litigation.”... Hood gave a presentation to fellow attorneys
general that detailed Google’s alleged wrongdoing, explained the elements of
“Possible Causes of Action,” and offered theories to overcome Google’s
anticipated defenses.
It's in this section that Google includes the footnote noting that Hood told the company that the preservation letter was still in effect, suggesting that he may still intend to go after Google.
Still, it looks like all the MPAA got for the hundreds of thousands of dollars it threw at this was making Mississippi's Attorney General look foolish, and showing just how far the MPAA will go to try to attack Google, rather than adapt to the internet.
Why settle for copyright infringement accusations when you can have it all? That seems to be pro se filer Michael Henry Smith's rationale. Apparently, his self-published fictional account of the Waco biker/cop shootout hasn't racked up as many sales as he believes it should. And now, the Internet must pay.
MICHAEL HENRY SMITH, Plaintiff
Vs.
ALPHABET INC., AMAZON.COM, ATTRACTSOFT GMBH, AUTOMATTIC/GRAVATAR, BEAM.TO, BESSEMER VENTURE PARTNERS, BOX/BOX, INC/OPEN BOX/MEDXT, COATUE MANAGEMENT, DFJ GROWTH, EZINECENTRE, FACEBOOK, FREEHOSTINGEU, GENERAL ATLANTIC, GOOGLE, ITOCHU TECHNOLOGY VENTURES, MACNICA NETWORKS USA, INC., MITSUI & CO, MY SOCIAL HUB XP, NEW ENTERPRISE ASSOCIATES, SAP VENTURES, SCALE VENTURE PARTNERS, SOCIAL + CAPITAL PARTNERSHIP, TELEFONICA DIGITAL, TELSTRA, AND TELSTRA VENTURES, TPG CAPITAL and TUCOWS INC.
Bring on the "defendants shielded by aliases!"
ALA KID, LONG DONG, JIMBO KING, CINDY LOU, BRIANNA NATFIALY, LONG JOHN, NUKE DUKEM, PETER WILL HARDEN, CAPTAIN SPRAWLING, CAPTAIN SPAULDING, THEREAL MIKESMITH, THEREAL MIKESMITH1ER.
Smith has filed this case under multiple causes. PACER lists it under both "Copyright Infringement" and "Assault, Libel and Slander.".
That's not enough, though. Smith alleges a host of wrongs.
LAWSUIT FOR THE THEFT AND DISSEMINATION OF MY INTELECTUAL PROPERTY, FOR CYBER BULLYING, CYBER STALKING, CYBER HARASSMENT, LIABLE, SLANDER AND DEFAMATION OF CHARACTER, THE USE OF HATE LANGUAGE IN THE PURSUIT OF THESE ACTIONS and/or FOR PROVIDING A SAFE HAVEN THE DEFENDNATS CONDUCTING OF THESE ACTIVITIES and/or FOR FAILING TO PROTECT MY WORKS FROM THESE ACTIVITIES
Following this is the meat of the complaint, most of which is composed of allegations copy-pasted under each defendant's name. Amazon receives a little more personal attention because that's where Smith's saga begins.
Smith self-published his book ("The Waco Biker Massacre") using Amazon's CreateSpace and Kindle Direct Publishing. "Within weeks," his book was available elsewhere on the web and he was allegedly being subjected to personal attacks from a variety of internet ruffians. I've lapsed into archaic slang as a gentle segue into Smith's depiction of his fortunes, post-Amazon upload.
As of today,it is my estimation that some 100,000 copies of my work have been distributed without my receiving a single Sioux in compensation.
As a nation, we've long since moved to paper currency. The backing of our currency by government stores of precious metals/Native Americans is but a dim memory. Smith is demanding well over 100 million dollars/Sioux, but only the former is actually possible to obtain here in the US. Smith notes the lack of Sioux has pushed back Volume 2's release date indefinitely.
From there, the allegations against each tech defendant are remarkably similar… and remarkably unhinged. Every defendant has allegedly encouraged the proliferation of child pornography, earning "hundereds of millions of dollars" in the process -- all the while refusing to hand over personal details on their users to Smith. In Smith's view, the Internet is all mobbed up.
One of those industries is the theft and distribution of my intellectual properties. Some of the others are the aforementioned sites that solicit children for exploitation and the distribution of child pornography. This defendant makes hundreds of millions of dollars hosting criminal enterprlses; every year.
In my endeavors to stop the proliferation of the illegal distribution of my works and the personal attacks on me personally, I have contacted these various entities and their sub-entities to obtain the identities of the criminals behind the theft and distribution of my works and to petition these hosting services to stop distributing my works. This defendant and its sub-entities and aliases has refused. They invoke the Internet Omerta.
And so on for most of the defendants: theft, child porn, hundreds of millions of dollars, Internet Omerta, etc. A few defendants receive their own special accusations, though. Like Facebook:
Facebook is a corporation and online social networking service. It also harbors criminals and cyber predators.
Smith seems most upset at the fact that Facebook -- like many of the other defendants -- won't just hand over user info without a court order. Somehow, this is viewed as wrong.
Just as all of the other defendants, similarly situated, it refuses to take definitive action; or reveal the identities of the other cyber criminals; unless I bring it into court and then that they receive a court order to disclose the identities of these other criminals.
With this added detail, it is now apparent that "Internet Omerta" actually means "will only comply with a lawful requests like a court orders, not the angry, ranting email/messages of some random dude on the internet."
In the end, it all comes down to money. Lots of it. The child porn pandering. The cyberbullying. The copyright infringement. It all adds up.
The minimum retail value of a copy of my short story is $3.99. The maximum retail value of a copy of my short story is $9.99. None of that includes the bonuses and awards for selling 100,000 copies of my work. None of that includes the notoriety for the work that could have garnered it recognition from a movie/television company that would have led to even more income. The personal stress and anxiety and physical injuries that I have suffered as a result of this continuous onslaught of cyber bullying, cyber stalking, liable, slander and defamation of character, and being subjected to hate speech is nearly unquantifiable.
Nearly "unquantifiable:"
For all of the foregoing I am requesting that this Honorable Court direct this action to a trial before a jury. That upon the finding of the jury in my favor that this Honorable Court direct the defendants to pay me $1,000,000.00 each for my losses, damages, pun, suffering, emotional distress and harms to my life. That is with the exception of the defendants BEAM.TO and MY SOCIAL HUP XP. That these vagabond defendants be held liable to me for the amount of $100,000,000.00.
As a majority of these parties are protected by Section 230, it looks like this case is going nowhere -- even if Smith had managed to state a coherent claim, which he has not. I can understand Smith's concern about copyright infringement and the harassment he's apparently experienced. (The exhibits contain two screenshots of accounts attacking him. They also contain two screenshots supposedly showing Beam.To's participation in child pornography distribution, but only actually show normal Google search results and a splash ad for a [legal] porn site. The abuse seems to have been a reaction to Smith's habit of showing up anywhere the Waco shootout is discussed and plugging his book/calling other people liars.) But making outlandish claims and demands won't put any more cash in your pocket. From the looks of it, it may not even put anymore filings on this docket… at least not from Michael Smith.
A one-page order added to the docket suggests the judge is either going to ask for a full rewrite of the complaint or try to talk Smith out of pursuing this woefully misguided lawsuit.
This cause shall come before the undersigned on March 21, 2016, at 10:00 a.m., for a pretrial conference in Courtroom 3A, United States Courthouse, Mobile, Alabama. Plaintiff is ORDERED to appear for the pretrial conference for the purpose of inquiring about Plaintiff’s complaint filed on February 26, 2016.
I may be reading too much into a two-sentence order, but it seems unlikely Judge William Cassady is formally inviting ordering Smith to his courtroom to congratulate him on the gutsiness of his opening salvo on Google, Amazon, et al.
Franco Caraccioli, who sued Facebook rather than the party who uploaded a video of him pleasuring himself (under the username "Franco CaraccioliJerkingman"), has lost his lawsuit. This is due to his decision to pursue a party protected under Section 230, rather than the uploader, against whom he might have been able to pursue actual criminal charges.
Caraccioli's original complaint argued that Facebook's refusal to delete the account amounted to defamation (among other things). It wasn't the craziest of pro se filings, but given the subject matter, Caraccioli might have been better served with another reread or two before submitting it. It accused Facebook of "thrusting" Caraccioli's video into the public eye -- including the eyes of children -- and noted that the "sensitivity" of the content was due to the reasonable expectations of any person who "holds their genitalia as a private part."
Eric Goldman, writing for the new Forbes "ad-light" experience (which you too can "enjoy" for 30 days if you just shut off your ad blocker/script blocker!), has more details and analysis.
The applicable federal law, 47 USC 230 (Section 230), has been on the books for over 20 years, and it’s extremely clear: websites aren’t liable for third party content. Caraccioli acknowledged that an unknown third party created the fake Facebook account, so the court easily concluded that Section 230 eliminates Facebook’s liability for it. Caraccioli argued Section 230 didn’t apply because Facebook “reviewed [the fake account] and decided not to remove it,” so this case involved “editorial inaction rather than affirmative editorial action.” Plaintiffs have unsuccessfully tried these arguments many times before, and the arguments didn’t work this time either…
That was just one of Caraccioli's attempts to skirt Section 230. He also (belatedly) argued the posting of the video violated his publicity rights. Not only was this attempt made too far into the process, but Section 230 also protects Facebook, et al. from publicity rights-violating material posted by third parties.
He also tried the "republication" angle, but that, too, was shot down. No matter what cause of action he would have brought, Caraccioli would have had an extremely difficult time getting a court to hold Facebook responsible for a user's postings. (Well, at least no court in the United States…)
As Goldman points out, Caraccioli's chances of success would have greatly increased if he'd chosen to target the actual poster, rather than target the entity easier to locate and serve.
Although we’re sympathetic to how the fake account harmed Caraccioli, he chose the wrong defendant. If Caraccioli could find the perpetrator, he should have much greater success in court. I’m maintaining a roster of over 15 unpublicized non-consensual pornography cases where plaintiffs have won in court (I hope to write up this research later this year), and Caraccioli’s facts are similar to some of these other rulings. Caraccioli just needs to leave Facebook out of it.
Locating and serving a site's user can be incredibly difficult, but going after the service provider pretty much eliminates any chance of success. Going after the actual party behind the post increases the odds of success, even if the initial steps are much harder than tossing a filing fee and a PDF into the nearest federal courtroom.
Backpage.com has been pretty busy in court. The site, which basically took over the market for "adult" classified ads after Craigslist shut down its ads (after being misleadingly attacked) has been sued a bunch of times, almost always by people misunderstanding Section 230 of the CDA which, as we've discussed hundreds of times, says that sites are not liable for the actions of their users. Last year, however, Backpage won a big case in Massachusetts in May, but then lost one in Washington in September. (Separately, it won a different case going after Cook County Sheriff Thomas Dart for meddling and getting credit card companies to stop supporting Backpage.com -- the company just asked the lower court to dismiss what's left of that case). The September ruling was surprising, as it's one of a very, very, very small number of cases that basically says that Section 230 doesn't apply.
Now, the appeal on the Massachusetts case has brought another good Section 230 win, saying that Backpage.com is not liable. Now, it should be clearly stated that both the Washington and Massachusetts cases involve some really awful and horrifying situations, in which girls were forced into sex trafficking. The situations that those girls were put in is horrifying and those responsible should be punished as much as the law will allow. But here's the important part: Backpage.com wasn't who was responsible. In fact, as at least some in law enforcement have recognized, Backpage.com can be a useful tool for tracking down such criminal activity.
It's been unfortunately easy for some to smear those who support Section 230 in these cases as being indifferent or somehow cruel to the plight of those who were trafficked. That's ridiculous. The explanation in the filing alone made me feel ill. But just because what happened to them was horrific and unconscionable, it doesn't mean you lash out and blame a tool that was used, rather than those who were actually responsible. Thankfully, unlike the Washington court, the 1st Circuit Appeals court understood this.
The specific issue in this case has to do with the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), which says that anyone who "knowingly benefits, financially or by receiving anything of value from participation in a venture which that person knew or should have known has engaged in an act" of sex trafficking, can be held liable under the law. But, of course, Backpage notes that, as a platform, to claim that it is liable would be to reject CDA 230 that says it cannot be held liable "as a publisher" for information published by others. The crux of the argument against Backpage here is that it's not claiming that Backpage is a "publisher," but merely that it "knowingly benefits" from sex trafficking. They argued that based on the way Backpage is set up, in terms of what it allows or disallows for posting, how it allows people to post anonymously, how it strips metadata from photographs and more, makes it different from a standard "publishing" platform. This is a pretty common attack on Section 230, claiming that it does more than a publisher and thus isn't protected. Courts have almost universally rejected that, unless those additional actions themselves could be seen to break the law (such as the Roommates.com case where the company was seen to violate fair housing laws because it had discriminatory pull downs that it set up itself).
But the court rejects this argument, saying that everything Backpage.com does is a traditional publisher activity.
As an initial matter, some of the challenged practices
— most obviously, the choice of what words or phrases can be
displayed on the site — are traditional publisher functions under
any coherent definition of the term. See Zeran, 129 F.3d at 330
(describing decisions about "whether to publish, withdraw,
postpone or alter content" as "traditional editorial functions").
And after careful consideration, we are convinced that the
"publisher or speaker" language of section 230(c)(1) extends to
the formulation of precisely the sort of website policies and
practices that the appellants assail.
Precedent cinches the matter. In Lycos, we considered
the argument that the prophylaxis of section 230(c) did not
encompass "decisions regarding the 'construct and operation'" of
a defendant's websites. 478 F.3d at 422. There, the plaintiffs
alleged that Lycos permitted users to register under multiple
screen names and provided links to "objective financial
information" from a finance-related message board, thus enabling
"individuals to spread misinformation more credibly." Id. at 420.
We noted that, at bottom, the plaintiffs were "ultimately alleging
that the construct and operation of Lycos's web sites contributed
to the proliferation of misinformation" and held that as long as
"the cause of action is one that would treat the service provider
as the publisher of a particular posting, immunity applies not
only for the service provider's decisions with respect to that
posting, but also for its inherent decisions about how to treat
postings generally." Id. at 422. In short, "Lycos's decision not
to reduce misinformation by changing its web site policies was as
much an editorial decision with respect to that misinformation as
a decision not to delete a particular posting."
And thus, the court finds that Backpage.com clearly is a publisher and protected by Section 230.
The lawsuit also tries to get around Section 230 by really trying to twist the so-called "Good Samaritan" clause of Section 230. This is a part of Section 230 that is often misunderstood or ignored, but is super important. It's the part that says that you don't lose your Section 230 protections if you do moderate any content on your website. While some Section 230 haters falsely argue that the law encourages sites to "leave up absolutely everything," that's not true. Section 230(c)(2) actually is helpful in encouraging moderation by sites, since they don't lose their safe harbors if they do moderate.
However, in this case, the plaintiffs tried to attack that by noting that the clause talks about "moderation in good faith," and they tried to argue that Backpage.com wasn't moderating "in good faith." The court doesn't buy it, saying that the argument is "misplaced."
Next up, they argue that because Section 230 does not apply to federal crimes, it shouldn't apply in this case, since the TVPRA is a federal criminal statute. But that fails because this is a civil lawsuit, which the court quickly points out:
The
appellants posit that the TVPRA's civil suit provision is part of
the "enforcement" of a federal criminal statute under the plain
meaning of that term and, thus, outside the protections afforded
by section 230(c)(1). This argument, though creative, does not
withstand scrutiny.
The court notes that it's quite clear that the exception for criminal statutes clearly is meant for only criminal cases, not civil cases based on criminal statutes.
Here, the subsection's title, "[n]o effect on
criminal law," quite clearly indicates that the provision is
limited to criminal prosecutions.
It is equally telling that where Congress wanted to
include both civil and criminal remedies in CDA provisions, it did
so through broader language. For instance, section 230(e)(4)
states that the protections of section 230 should not "be construed
to limit the application of the Electronic Communications Privacy
Act of 1986," a statute that contains both criminal penalties and
civil remedies.... Preserving the
"application" of this Act contrasts with Congress's significantly
narrower word choice in safeguarding the "enforcement" of federal
criminal statutes. The normal presumption is that the employment
of different words within the same statutory scheme is deliberate,
so the terms ordinarily should be given differing meanings.
Not surprisingly, the plaintiffs also try to argue that Backpage.com did specific things to actually block attempts to combat sex trafficking, and it was those actions that are not protected by Section 230. But the court notes that these claims are not backed up by facts:
This causal chain is shot through with conjecture: it
pyramids speculative inference upon speculative inference. This
rampant guesswork extends to the effect of the alleged
misrepresentations on an indeterminate number of third parties,
the real impact of Backpage's behavior on the overall marketplace
for sex trafficking, and the odds that the appellants would not
have been victimized had Backpage been more forthright.
When all is said and done, it is apparent that the
attenuated causal chain proposed by the appellants is forged
entirely out of surmise.
In the "really stretching it" arena, they also used the one other exception to Section 230: intellectual property law. For that, they argued that the pictures that were posted (mostly by the individuals who were running the sex trafficking) were "unauthorized." Of course, even if that were the case, that wouldn't make Backpage liable. The court quickly recognizes that if anyone unlawfully "benefited" from the unauthorized use of the photographs, it was the traffickers, not Backpage:
Here, there is no basis for an inference that Backpage
appropriated the commercial value of the appellants' images.
Although Backpage does profit from the sale of advertisements, it
is not the entity that benefits from the misappropriation. A
publisher like Backpage is "merely the conduit through which the
advertising and publicity matter of customers" is conveyed..., and
the party who actually benefits from the misappropriation is the
advertiser. Matters might be different if Backpage had used the
pictures to advertise its own services... but the appellants
proffer no such claim.
Taking the IP claim even further, at least one photo used by the traffickers was actually taken by one of the girls herself. That girl then registered the copyright and used that to claim infringement. But, of course, the registration occurred after the case had been filed (and after the photo had been taken down), meaning that statutory damages are not available. The discussion goes into even more detail on why the copyright claim is a total non-starter that appears to have been added late as a last gasp effort to find something to use to go after Backpage.
None of this is to argue that Backpage.com is a wonderful site or a shining beacon. It may have its problems. But, as we've seen for years, people keep wanting to blame the tool for how people use it. Even a major NY Times columnist keeps writing totally misleading columns that try to place the blame on Backpage.com. This is desperately misguided. Just as it was misguided when everyone tried to blame Craigslist for the same thing. You'd think that, after Craigslist stopped accepting adult ads, and those ads quickly moved to Backpage.com, people might realize that blaming the website is monumentally stupid, because it's not the website causing this. Take down one website and another will pop up. Or maybe a few others. That's not the issue. You should blame the people who are actually breaking the law -- the people who are engaged in the sex trafficking business, who are forcing these women to participate. And, a great way to track down those people is to use tools like Backpage to track them down, rather than attacking the tool itself.
Back in January, we wrote about an absolutely ridiculous case, in which Tamara Fields sued Twitter, after her husband was tragically killed in an ISIS raid last year. Why Twitter? She apparently blames Twitter for the rise of ISIS. She provides no evidence to show that the people who killed her husband (a government contractor for DynCorp International) was killed by people who used Twitter. Or that anything about the attack was related to Twitter. It's entirely just "ISIS uses Twitter. ISIS killed by husband. Let's sue Twitter." As we noted at the time, Section 230 should easily get this lawsuit tossed out quickly, and the company has now filed its Motion to Dismiss. The TL;DR: "Section 230, Section 230, What a stupid lawsuit this is."
Plaintiff’s claims seek to hold Twitter liable for the content of messages posted to its
platform by third parties and are thus barred by Section 230 of the Telecommunications Act of
1996, 47 U.S.C. § 230 (“Section 230”). In enacting Section 230, Congress unequivocally
resolved the question whether computer service providers may be held liable for harms arising
from content created by third parties. Announcing the policy of the United States to preserve the
“free market that presently exists for the Internet . . . unfettered by Federal or State regulation,”
47 U.S.C. § 230(b)(2), Congress broadly immunized entities like Twitter against lawsuits that
seek to hold them liable for harmful or unlawful third-party content, including suits alleging that
such entities failed to block, remove, or alter such content
Of course, even without Section 230, the lawsuit should be dumped, because Twitter had nothing to do with anything in this case.
It fails to
state a claim for relief under the Terrorism Civil Remedy provision. That provision requires
Plaintiff to allege and prove (1) that she was injured “by reason of”—i.e., that her injury was
proximately caused by—(2) an “act of international terrorism” committed by Twitter. 18 U.S.C.
§ 2333(a). The Complaint’s allegations satisfy neither requirement. First, the link the
Complaint attempts to draw between Twitter’s alleged conduct and the attack is, as a matter of
law, far too tenuous to establish that Twitter proximately caused Mr. Fields’ death. Second, the
Complaint’s allegations amount to nothing more than the claim that Twitter made its
communications platform available to everyone in the world with an Internet connection. As a
matter of law, that conduct cannot have constituted “an act of international terrorism” as defined
by the statute because it plainly does not “appear to [have been] intended” “to intimidate or
coerce a civilian population,” “to influence the policy of a government by intimidation or
coercion,” or “to affect the conduct of a government by mass destruction, assassination, or
kidnapping,”...
Later, the filing notes:
The Complaint makes no attempt to connect Twitter directly to Abu Zaid or his attack. It
does not allege that ISIS recruited Abu Zaid over the Twitter platform. Nor does it allege that
Abu Zaid or ISIS used the Twitter platform to plan, carry out, or raise money for the attack. It
does not even allege that Abu Zaid had a Twitter account or ever accessed the Twitter platform.
And although the Complaint devotes considerable attention to how other terrorists allegedly used
the Twitter platform, it never explains how that alleged use had even the remotest connection to
Abu Zaid’s “lone wolf” attack. The Complaint does not, for example, allege that ISIS helped
Abu Zaid plan the attack or that ISIS provided Abu Zaid with weapons or funds. Beyond the
speculation that Abu Zaid and ISIS may have shared the common objectives of inflicting harm
on Americans and establishing a transnational Islamic caliphate, the closest the Complaint comes
to even hinting at a connection between the two is the allegation that ISIS’s “brutal execution of
Jordanian pilot Maaz al-Kassasbeh in February 2015” may have inspired Abu Zaid to become a
“lone wolf” terrorist nine months later.
Obviously, having your husband killed in a "lone wolf" attack is a horrible and horrifying situation for anyone to go through. But suing Twitter seems like a particularly misguided response. It would be positively shocking if the judge actually lets this case go any further.
So... you may recall that, back in December, we received and responded to a ridiculous and bogus legal threat sent by one Milorad "Michael" Trkulja from Australia. Mr. Trkulja had sent the almost incomprehensible letter to us and to Google, making a bunch of claims, many of which made absolutely no sense at all. The crux of the issue, however, was that, back in November of 2012, we had an article about a legal victory by Mr. Trkulja against Google. The issue was that when you searched on things like "sydney underworld criminal mafia" in Google's Image search, sometimes a picture of Trkulja would show up. His argument was that this was Google defaming him, because its algorithms included him in the results of such a search and he was not, in fact, a part of the "underworld criminal mafia."
Either way, back in 2012 we wrote about that case, and Trkulja was upset that a comment on that story jokingly referred to him as a "gangster." Because of that, Trkulja demanded that we pay him lots of money, that we delete the story and the comments and that Google delist all of Techdirt entirely. Immediately, we pointed out in our response: the comment is not defamatory, the statute of limitations had long since passed if it was defamatory, as an American company we're protected by Section 230 of the CDA, and even if he took us to court in Australia, we're still protected by the SPEECH Act. Finally, we suggested that perhaps he chill out and not care so much about what an anonymous person said in the comments of an internet blog over three years ago -- especially when many people consider it a compliment to be called "a gangster."
Either way, it seemed fairly clear that there was no actual "harm" to Mr. Trkulja, given that he didn't even seem to care about it for over three years.
We had hoped that this would be the end of it, but apparently it is not. A few weeks back, we received the following, absolutely bogus legal threat from an Australian lawyer by the name of Stuart Gibson, who appears to work for an actual law firm called Mills Oakley. The original threat from Mr. Trkulja could, perhaps, be forgiven, seeing as he almost certainly wrote it himself (again, it was incomprehensible in parts, and full of grammatical and typographical errors). Our response was an attempt to educate Mr. Trkulja against making bogus threats.
However, now that he's apparently wasting money on a real lawyer like Gibson, we will address the rest of our response to Gibson: Your letter is ridiculous, censorious and not even remotely applicable. Going to court over this will make you and your client look extremely foolish. But let's dig in, because Mr. Gibson seems to think that blustery bullshit will scare us off. He's woefully misinformed on this.
First off, if you send a legal threat and say "NOT FOR PUBLICATION" at the top, it's tough to take you seriously, because such a statement is meaningless. We have no contractual agreement not to publish such information, and if you send us a bogus legal threat, we are damn well going to publish it:
And now on to the crux of Gibson's argument: we said mean things about his client and somebody's feelings may have been hurt.
If you can't read that, it says:
The matter that you have published conveys false and defamatory meanings including (but not limited to) the following:
Our client is a gangster;
That our client by virtue of his legal claims is incompetent and unfit to be a litigant;
That our client by virtue of his legal claims is a ridiculous litigant;
That our client is a criminal and a participant in organised crime;
That our client is unfit to be a litigant
None of these meanings is defensible. Our client is not a criminal and has never been a gangster nor associated with such persons. Accordingly there is no factual basis for the imputations published.
Let's go through these one by one. First off, we never said that Mr. Trkulja is a gangster. In fact, in both of our previous stories about him, we noted that his concern was over being called a gangster when he was not one. To claim otherwise is Mr. Gibson lying in his threat to us. As a suggestion, lying in your legal threat letter is not a very good idea.
Second, at no point did we state that Mr. Trkulja was incompetent or unfit to be a litigant. We merely published his own words -- admittedly including his misspellings, grammatical errors and general confusion -- and our responses to them. If Mr. Gibson thinks this implies that his client is unfit to be a litigant, perhaps he should check his own biases.
Third, again, Mr. Gibson seems to be assuming the claim. We did say that the threat against us was ridiculous -- an opinion we stand by. But we did not say he was a "ridiculous litigant." Also, "ridiculous" is a statement of opinion and even in nutty Australia, "honest opinion" is not defamation. And it is our "honest opinion" that the threat is ridiculous.
Fourth, this is a repeat of the first claim. It was false the first time, and it's still false. Repeating a false claim may allow Mr. Gibson to add to his billable hours, but doesn't seem like particularly good lawyering.
Fifth, this is a repeat of the second claim. See point four above. And point two above.
So let's be clear: we did not say that Mr. Trkulja was a gangster. We said, in our honest opinion, that he won a lawsuit the results of which we disagree with, and that his legal threat to us was ridiculous. This is all perfectly reasonable and protected free speech. Second, we posted Mr. Trkulja's own words which, again in our honest opinions, do show the "ridiculousness" of his threat to us in that it was filled with grammar and spelling errors and was, at points, (again, in our honest opinion) incomprehensible gibberish.
Mr. Gibson, then suggests that arrogance is somehow defamatory:
If you can't see that, it says:
Moreover your commentary that still resides on your website is an arrogant, false and poorly researched piece for the following reasons:
The reference to "gangster" is not "totally innocuous". The reference is grossly defamatory and indefensible. One could not conceive a more defamatory reference than that. It may be a throwaway line in the United States but it is certainly not in this jurisdiction.
Judgments against US companies especially those resident in California are enforceable particularly monetary judgments.
You are not protected by the Speech Act.
This firm has enforced numerous judgments against corporations in your jurisdiction.
Your reference to "free speech" is absolute nonsense. Speech may be free but it is also actionable.
You did publish the comment. Under Australian defamation law, you have a duty as a moderator to moderate third party comments. If you do not and refuse to take action when given notice, you are liable.
First off, I may not be an expert on Australian defamation law, but I can tell you I find it difficult to believe that "arrogance" or "poorly researched" information is defamatory there. It certainly is not defamatory in the US, and, furthermore, Mr. Gibson, you are wrong that it was poorly researched. It was well researched and backed up with a great amount of detail -- details I will note your own threat letter to us appears to be lacking. And I'm sorry if we come off as arrogant to you, but we're allowed to speak our minds.
Next, Mr. Gibson, you "could not conceive a more defamatory reference" than calling someone a gangster? Really, now? Because I'm at least moderately familiar with some Australian insults and many of them seem way, way worse than "gangster" -- which, again I will remind, you we never called your client (and, in fact, correctly noted that he was upset at someone calling him a gangster). And, yes, it is innocuous. No one cares that someone anonymously in a blog comment jokingly called your client a gangster. It was harmless as is fairly clearly evidenced by the fact that your client didn't even notice it for over three years.
Next, I'll note that for all your talk of enforcing Australian monetary judgments in California, you don't name a single one. And, you're wrong, because the SPEECH Act absolutely does apply, and you'd be exceptionally foolish to test this, though of course that is your decision to make. The text of the SPEECH Act is pretty explicit, first about when defamation rulings are enforceable in the US and (clue time!) it doesn't count if the statements wouldn't be defamatory in the US:
a domestic court shall not recognize or enforce a foreign judgment for defamation unless the domestic court determines that the exercise of personal jurisdiction by the foreign court comported with the due process requirements that are imposed on domestic courts by the Constitution of the United States.
Second, the law is also explicit that a service provider, such as us (in reference to comments published by readers on our site), if protected by CDA 230 in the US, would be similarly protected from foreign judgment:
a domestic court shall not recognize or enforce a foreign judgment for defamation against the provider of an interactive computer service, as defined in section 230 of the Communications Act of 1934 (47 U.S.C. 230) unless the domestic court determines that the judgment would be consistent with section 230 if the information that is the subject of such judgment had been provided in the United States.
I recognize that you're an Australian lawyer, not a US one, but I would suggest doing at least a tiny bit of research into the caselaw on Section 230 in the US. You will quickly learn that we do qualify as a service provider and that, no, we are not liable for statements in the comments. And, hell, even if we were, and even if the comments were defamatory under US law (which they're not), the statute of limitations on those original comments is long past anyway.
And, yes, in case you still have not read the SPEECH Act, the legal burden will be on you here:
The party seeking recognition or enforcement of the foreign judgment shall bear the burden of establishing that the judgment is consistent with section 230.
Good luck with that.
In case you still decide to ignore the actual text of the law, you can also go digging through the legislative record on the SPEECH Act, in which it was made explicit that the law was designed to protect against such forms of "libel tourism."
The purpose of this provision is to ensure that libel tourists do not attempt to chill speech by suing a third-party interactive computer service, rather than the actual author of the offending statement.
You can claim the law doesn't apply, but you are wrong. The text is clear. You can claim that you have won judgments or monetary awards in the past. And perhaps you have, but if you try to move against us, you will be facing the SPEECH Act and you will lose.
So, given all of the above, we will not be undertaking any of your demands. We will not apologize as we have nothing to apologize for. We will not retract anything, as we did not make any false or defamatory publications. We will not remove anything from our website. We will not pay your client anything, whether "reasonable costs" nor "a sum of money in lieu of damages."
Instead, we will tell you, as we did originally, to go pound sand and to maybe think twice before making bogus legal threats that you cannot back up.
Over the past year or so, there has been some people questioning if merely tweeting could be considered "material support for terrorism." Taking things to another level altogether, Tamara Fields, whose husband (a government contractor for DynCorp International) was tragically killed in an ISIS strike late last year, has now sued Twitter for providing "material support" for ISIS.
Let's be clear on a few things: I can't even imagine the horrors of having your loved ones killed that way. It is horrible and tragic, and the pain must be unfathomable to those who have not gone through it. But, at the same time, that's not Twitter's fault no matter how you look at it. The full lawsuit, filed in California by lawyers who should know better, makes a number of ridiculous assertions, including the idea that the rise of ISIS would have never happened without Twitter.
Without Twitter, the explosive growth of ISIS over the last few years into the mostfeared
terrorist group in the world would not have been possible. According to the Brookings
Institution, ISIS “has exploited social media, most notoriously Twitter, to send its propaganda and
messaging out to the world and to draw in people vulnerable to radicalization.” Using Twitter,
“ISIS has been able to exert an outsized impact on how the world perceives it, by disseminating
images of graphic violence (including the beheading of Western journalists and aid workers) . . .
while using social media to attract new recruits and inspire lone actor attacks.” According to FBI
Director James Comey, ISIS has perfected its use of Twitter to inspire small-scale individual
attacks, “to crowdsource terrorism” and “to sell murder.”
Is ISIS fairly adept at using Twitter? Sure. Does that mean that it wouldn't have become the group it's become today? That's ridiculous. The rest of the complaint takes a number of statements, concerning Twitter's support for free speech rights totally out of context, including repeatedly relying on quotes from individuals who haven't worked for Twitter in years. It also quotes people whining that Twitter should do more as evidence that the company has a legal obligation to do more.
The lawsuit is going nowhere. First of all, considering that it's a civil lawsuit, Twitter is totally and completely protected by Section 230 of the CDA that says the company is not liable for how people use the platform. That's enough to end the case right there. The case will almost certainly be tossed pretty quickly based on 230. Even if that wasn't the case, the claims in the lawsuit that Twitter does basically nothing to stop terrorists are laughably untrue. In fact, ISIS has been issuing death threats against the company and its execs because they've been removing accounts.
On top of that, many have actually been complaining that Twitter goes too far in these efforts. Hell, just a couple weeks ago, the company accidentally shut down the account of a guy people mistakenly thought was ISIS's leader, despite actually being a strong supporter of democracy and freedom, who just happened to have the same last name.
Too many people seem to think that there's some magic wand that Twitter can wave that'll make ISIS "disappear" from the service. It doesn't work that way. The law certainly doesn't require that. And while Twitter does proactively look to take down accounts that are advocating for terrorism, that doesn't mean it's even possible, or reasonable, that it can find every one. Targeting Twitter for a lawsuit just smacks of a Steve Dallas lawsuit, where upset people sue a large company barely involved in things, because that's where the money is.
Finally, over and over again, intelligence officials keep claiming that the fact that ISIS folks are tweeting and Facebooking is actually one of the best ways to keep track of what they're doing and saying. Shutting them down may seem appealing, but actually could decrease the ability to track them and their activities.
Either way, this lawsuit is dead on arrival. It will get tossed out thanks to Section 230. The lawyers who filed it should have known better. Yes, the situation is tragic and horrible and unfortunate. But it's not Twitter's fault -- and suing the company over it just looks ridiculous.
As we've noted, we regularly get legal threats, some of which are more serious than others. Sometimes we ignore them entirely, and sometimes we feel the need to respond. Depending on the situation, sometimes we respond privately. Sometimes we respond publicly. The more ridiculous the threat, the more likely we are to respond publicly -- and I think the latest holds up as one of the most ridiculous legal threats we've seen. It comes from Milorad Trkulja, who is also known as Michael Trkulja, and who lives in Australia. Trkulja made some news a few years back when he (somewhat surprisingly) successfully sued both Yahoo and Google for hundreds of thousands of dollars, because when people did image searches on a variety of phrases related to things like "Australian criminal underworld mafia" sometimes a picture of Trkulja would show up. Apparently, Trkulja was actually shot in the back a decade ago by an unknown gunman. And somehow, for whatever reasons, certain websites included pictures of him along with enough keywords that the search algorithms at both Google and Yahoo would return his photo in such searches. We wrote about his victory over Google back in November of 2012, pointing out how ridiculous it was that an Australian court said you could sue search engines because image search happens to pop up your image along with actual gangsters.
Anyway, after we wrote about the case, as happens on Techdirt, people commented on the story, including one anonymous comment from someone who, in a totally offhand way, claimed that "Trkulja's a gangster, too." The actual content of the comment, as you can see was actually to clarify some of the misconceptions -- including who "Tony Mokbel" is (a well-known Australian gangster) and responding to the author of the post, Tim Geigner's (admittedly weak) sarcastic joke that Australians fight with machetes, rather than guns.
Now, it appears that Trkulja just found out about this comment (more on how in a moment) and has sent off a fairly massive 54-page document to both myself and to Google with a series of increasingly hilarious demands -- including that we respond by 4pm today (he does not designate in what time zone -- not that it matters). The letter is, well, you kinda have to read it. It is full of misspellings, along with typographical and grammatical errors of all kinds. For someone who claims to have consulted a lawyer before sending the letter, you'd think he'd consult someone who could proofread his letter as well. No such luck, apparently.
It starts out by claiming that it's "Not for publication" but that's totally meaningless. You send it to us, we can absolutely publish it. Free speech means something here in the US.
It then includes a recitation of some "facts" about certain Australian organized crime individuals, followed immediately by this:
I'm not an expert on Australian law, but I'm pretty sure that's totally false. I believe that he's either referring to his own earlier case, or (more likely!) the dreadful recent decision in a South Australia court, concerning one "Janice Duffy." Duffy, as we've discussed, sued Google after she became quite upset that a Ripoff Report post mocking her was a high result on her name (what is often left out of this discussion was that Duffy went to Ripoff Report first and posted fake posts to attack a psychic website where she felt she had been connected to a psychic who provided her with false information, and the supposedly "defamatory" content on the site was someone referring to Duffy as a "psychic stalker"). The ruling in that case did not say that Google is automatically liable for any defamatory content online, but rather, in this specific instance, Google could be found as the "publisher" of some defamatory content, based on the way that Google chose to display that content. I disagree strongly with the decision as is, but even if we accept it at face value, it does not say what Trkulja is claiming.
Oh yes, speaking of Duffy, it felt... odd... to receive a legal threat from Australia so soon after discussing the Duffy decision -- especially given that Duffy had not only just yelled at us online, but had also been going off on some bizarre rants and outright threats against some individuals who expressed an opinion suggesting that the ruling in favor of Duffy was troubling.
So, it didn't come as a huge surprise that Trkulja then admits he only found out about our post and the comments... thanks to Duffy, who is apparently a "family friend" of his.
If you can't read that, it notes that the "matter in paragraph 14" (which is the comment I mentioned above) "come to my attention when my family friend Dr Duffy from South Australia send me link that you have been defaming me as from 2012."
From there, he notes:
I complains is an article authored by you and posted to the "Techdirt" website situate at https://www.techdirt.com ("the website")....
Well, I'm really not quite sure what to do with that information, because almost everything in it is wrong, but we'll get there. From there, he mentions that he spoke to an Australian defamation lawyer, and suddenly shifts oddly from the first person to the third person -- possibly copying what someone told him, though it's not at all clear from the text of the letter. The key point: he claims that comment is defamatory and that Techdirt is liable for it. This is wrong on a variety of levels -- but we'll get there as well.
Then, we get to the "demands." It starts with a demand for Google. They are apparently supposed to delist Techdirt entirely because of a single comment that Trkulja falsely believes is defamatory. Also, it could be read as to be asking Google to block me personally from Google's website. Or something. Also, he wants Google to block some other websites. No reason or explanation is given.
Then there are demands for me that include identifying the anonymous "subscriber," delete the comment, the post and anything ever mentioning Trkulja. Oh, and I should fork over a bunch of money:
These demands are then repeated again on the next page in slightly different language. And numbered instead of lettered. No idea why. Then there's a demand that we respond by December 1st, 2012. Yes, 2012. I'll assume that's a typo.
Then there are a ton of screenshots that I assume are "exhibits" of some sort. They include my Twitter page for no clear reason. And also the Techdirt profile of the author of the original article, Tim Geigner, and, for reasons unknown, Tim's Amazon author page. He also refers to Tim as "Darknight aka Timothy Geigner" while I think most of our regulars recognize that Tim is better known as "Dark Helmet" in our comments....
Okay, so that's the situation. Now, the response: we're not going to do any of the demanded things. For a whole variety of reasons. Let's go through just a few, because this post is getting too long already and if I had to respond to all of the ways this letter is wrong, none of you would still be reading.
First up, not that it really matters, but the statute of limitations is one year in Australia, as it mostly is in the US as well. Under some circumstances, it can apparently be extended to three years, but (oops) that comment was published on November 13, 2012. The statute of limitations is up. Sorry.
The comment isn't defamatory. The reference claiming you're a "gangster" is totally innocuous. It's a trivial throw away comment on a blog post that no one would notice. Trivial comments are not defamation in Australia (or the US for that matter).
The other lines that you seem to complain about are opinions not statements of fact. The reference to the "gun" was a response to Geigner's joke in the post about machetes, not to anything involving you. Opinions are not defamation. Things unrelated to you are not defamation of you.
Also, we're a US company with no presence in Australia, so your threats are pretty pointless.
Even if you could convince an Australian court with some sort of wacky legal argument, we're totally protected from such judgment thanks to the SPEECH Act.
Free speech, dude.
We have no "subscriber" named Anonymous Coward. That's the designation given to anyone who comments without logging in.
We didn't publish the comment. An anonymous user did. We're not liable for it. If you have any legitimate complaint at all (and you don't), it's with an anonymous user who posted a trivial comment three years ago, rather than us or Google.
Even if none of the above is true: what the fuck? NO ONE is finding a comment buried deep below a blog post about your legal victory and suddenly saying "oh, well that proves that Trkulja was a gangster."
Wait, what's so terrible about being called a "gangster" anyway? To many people it's a compliment or something to brag about.
That's enough of a response. There are tons of other possible responses, but in short: we're not doing a damn thing in response to this ridiculous threat. You have no case whatsoever and complaining about this is ridiculous. It may be time to find a hobby or something, Mr. Trkulja, because poorly written and ridiculous legal threats to foreign entities aren't doing you any good.
For the last few years, we've noted a worrying trend of a few law professors, who have decided that the best way to make people nice on the internet is to do away with Section 230 of the CDA. As we've noted repeatedly, Section 230 of the CDA is without a doubt the most important law on the internet. The internet would be a massively different (and worse) place without it. Almost every site or service you use would be very different, and the internet would be a much more bland and sterile place. Section 230 is fairly simple. There are two key elements to it:
People cannot blame service providers for content posted by users.
Service providers who decide to moderate/delete content cannot be held liable for the content they choose not to moderate (or the content they choose to moderate).
The reasoning behind the law should be pretty straightforward. First, you should apply any liability to the person actually doing the speech, rather than the person providing the tool for the speech. We don't blame the phone company when someone makes a threat over the phone. We don't blame the postal service when someone sends mail we don't like. We blame the individuals who actually did the thing.
But, because there are still some people who do terrible things online, a group of people have decided that perhaps the problem is not enough censorship and moderation -- and that yanking away the protection of Section 230 will magically make everyone nice on the internet. This is wrong and ridiculously short sighted. A month ago, we wrote about just such an attack from a minor internet/TV celebrity who clearly just didn't know any better. But now there's a law review article penned by law professor Ann Bartow, and it's a nearly fact-free and clueless attack on Section 230, based on a number of ridiculous to dangerous assumptions.
As if to warn how bad the article will be, it literally starts off with an attack on free speech -- suggesting that we have too much of it, and mocking "First Amendment absolutists" and the US's "unique" view on free speech. It doesn't even begin to acknowledge the results that you get when you take away free speech. From there, she pivots to Section 230, citing Danielle Citron, who has provided inspiration to many other law professors to attack Section 230. Amazingly, Bartow suggests Citron doesn't go far enough:
What she touches on far too briefly are the revenue producing and money saving advantages that Section 230 provides for Internet businesses both big and small. She laments the disgusting websites that profit from hate speech and nonconsensual porn. She expresses less concern about the mercenary corporations that earn billions by hosting, indexing, promoting and advertising these abhorrent websites; huge, “respectable” companies like Yahoo, Google, Facebook, Twitter, Instagram and Microsoft. They launder the proceeds of hate speech, and happily cash the checks.
Arguing that it's all about money is ridiculous. And wrong. We'll get back to that in a second, but let's go on to the next paragraph, where I can say with 100% certainty, that Bartow has no clue what she's talking about:
Anyone hosting a small blog knows that a good flame war or pile on will increase your links and page views, and therefore your advertising income. On a much bigger scale the same incentives apply to the largest ISPs. They create and host platforms designed to attract as much online traffic as possible. They benefit monetarily from popular content that is often hostile and offensive to groups with less power in society, such as sexual minorities, racial minorities, religious minorities, and, as Citron describes in such harrowing detail, to women generally. Under Section 230 the financial incentives for ISPs all fall in favor of ignoring internet harassment. Controversial news reports, gossip blogs and sexy intriguing dating profiles, even when false, generate logons, eyeballs, and browser clicks, all the things that lead to revenue streams. Section 230 enables large ISPs to disclaim any legal or moral responsibility for the harms that online speech can inflict all the way to the bank.
I host a small blog. And Bartow is full of shit here. A "good flame war" does not increase links or page views. It generally involves a very small group of people who just yell at each other and drive most everyone else away. Why do you think so many news sites have been shutting down their comment sections? Furthermore, this shows a lack of understanding of how internet advertising works. Again, a flame war doesn't tend to attract more viewers to an article, it drives many away. It just attracts a small number of participants and those participants don't click on or look at ads. It does not increase ad revenue. This is a confused myth by people who have clearly never managed an ad-supported website.
Furthermore, if your site is nothing but harassment and flame wars, good advertisers stay the hell away. No one wants to be seen advertising on a site that is associated with harassment. And, in addition to that, public pressure has a way of pushing many sites to try to moderate out the worst behavior anyway. Bartow's article seems totally devoid of facts. Based on her description, you wouldn't even know that sites like Reddit and Twitter massively ramped up moderation efforts recently. To some, it's not enough (and to others it's way too much), but Bartow suggests that sites have no reason to do so. Clearly that's not true, because every major website does moderation -- and they have many incentives to do so, from not angering advertisers to general public perception and social pressure.
Bartow's law review article seems to be written in a parallel universe, in which she has no idea how internet sites or internet advertising actually operate.
But, armed with this near total misunderstanding of the internet, Bartow proceeds to suggest an absolutely horrific idea: make CDA 230 more like the DMCA notice-and-takedown process:
Reform must be bolder to have any measurable effect. A more conditional ISP immunity could be framed somewhat along the lines of the Digital Millennium Copyright Act (DMCA). Under the so called “notice and takedown” provisions of the DMCA, when an ISP takes down online information that has been used in a way that a copyright holder alleges was not authorized, it is essentially immune from copyright based liability for distributing infringing materials. If it chooses not to respond to the copyright holder’s demand, however, the ISP may later have to defend its decision not to takedown the disputed material on the merits. Risk aversion usually motivates takedowns. Even now, when victims hold the copyright in photos used to torment them, and ask ISPs to remove them for copyright reasons, ISPs generally remove them with great alacrity to avoid potential liability for copyright infringement. A recalibration of Section 230 immunity could establish a similar framework that creates potential liability when ISPs refuse to assist people whose victimization through online bullying, stalking and harassment they are facilitating and profiting from. Because speech torts are so much harder to prove than intellectual property infringement, takedowns in this realm are less likely to be routine.
This has been suggested before by others, but again, it suggests someone who lives in the world of theory and has no experience with how the internet operates in practice. The DMCA notice-and-takedown process is regularly used as a tool for censorship of content people don't like. Expanding it beyond copyright would just multiply that massively.
Again, as someone who runs a small blog, the number of requests we get from people demanding content be taken down is fairly incredible. It's Tuesday of this week and we've already received requests to take down one story (entirely) and a dozen or so comments on other stories. If we had to follow through on those we'd shut down all comments, and it would take away this entire community. It's not about "making money." It's about not being burdened with constant legal threats and the risk of having to go court because someone is unhappy.
Bartow doesn't think this is a big deal, because she says internet companies can afford it:
The stentorian and self-serving ISP party line is that without Section 230, behemoth online presences like Google, Yahoo, Bing, Facebook, YouTube and Twitter would not exist. Citron appears to accept this argument. But I do not believe it for one second, and you shouldn’t either. If they had to actively respond when their cyber products were actively harming people, just like other companies that make things are usually forced by law to do, their businesses might be less profitable. But they would still be highly profitable. And as long as there is money to be made on the Internet, ISPs will be pursing those dollars.
Yes, perhaps Google, Yahoo, Microsoft (Bing?!?), Facebook and Twitter could afford to deal with it, but they're giant massive companies. Small independent content creators like myself could not. We barely make any money as is. Being liable for others' content would almost certainly force us to shut down.
And that's the real concern that Bartow doesn't seem to acknowledge. The internet is not just those giant companies. It's the fact that anyone can start their own site and have a voice. The people she thinks she's defending -- the marginalized and the harassed -- would be much worse off in the world she thinks she wants. It would turn the internet from an open communications platform that has allowed marginalized groups to speak out, to a broadcast style world, where only the elite had the ability to speak their minds. Perhaps she doesn't mind because she's an elite law professor -- but she should talk to some of the people she thinks she's saving, who have relied on these platforms to make their voices heard.
Bartow claims that she knows sites would still be profitable without Section 230 because these US companies operate outside the US where there is no Section 230. But again, that's a constant risk and more a result of the nature of the internet, rather than anything else. I'm fairly concerned that there are some countries I cannot travel to because of a lack of Section 230 outside the US. The last time I was in Germany I literally had someone accuse me of war crimes because of a comment on Techdirt, and I started counting the hours left until I could get out of the country. Bartow is so sure of herself that she insists she's right despite all the evidence to the contrary.
Section 230 saves ISPs money. That is its real value to them.
No, it protects free speech and enables sites to operate in the first place -- especially smaller internet sites. It's not about "saving money" to me. It's about being able to actually create a forum where people can speak freely. There are tons of other pressures to moderate out the worst of the worst content, and Bartow (again) is simply factually wrong about the "value" of "flame wars" and on how internet advertising works. You'd think that she'd maybe talk to someone who actually has experience in this field before penning such an ignorant law review article, but apparently the Boston University law review doesn't require anything akin to fact checking to publish articles.
From there, Bartow breezily dismisses the fact that execs at Google were found guilty on criminal charges for not taking down a video fast enough, because it was overturned on appeal:
Many multinational ISPs were alarmed when three Google executives were criminally convicted in absentia in Italy for a privacy violation because the company hosted a video in which an autistic child was being bullied. Ultimately, though, the convictions were reversed on appeal, and there is no evidence that a single Internet company stopped doing business in Italy, even though the possibility of future content related arrests remains.
If Bartow really thinks that this has had no impact, then she, again, does not know what she's talking about. Many internet companies are quite fearful of doing business in such countries. We would never open an office there out of fear for the liability. We can operate there from afar because we know we're protected by Section 230 and the SPEECH Act. Again, big companies can afford to fight the liability. Small ones and individual operators cannot.
Finally, Bartow closes with the fact that internet companies are trying to expand in China as a weird sort of "proof" that it's fine for companies to operate under authoritarian regimes that crack down on free speech:
If Section 230 style immunity was critical for any reason other than maximizing profits, no ISP would do business in China, which has a highly censored Internet infrastructure, and actively jails people for criminal speech offenses such as “spreading rumors.” Yet Google is actively trying to expand its presence there. So are Microsoft, Facebook, Linked In, and Twitter just to name a few. All the large Internet companies are operating in China to the maximum extent that the Chinese government will allow, because they can make a lot money there, in spite of the dangers.
When you're pointing to China as your "example" of how it's great to crack down on free speech, you've already lost your argument.
This article is a travesty of ignorance and confusion, culminating in an attack on free speech and the most important law on the internet.
There are many proper ways to file a lawsuit. Then there's this one. (h/t Eric Goldman)
This is a case about one of the most powerful corporations in the world, a corporation that maliciously recreated obscene or pornographic sexual content on a personal profile account named "Franco CaraccioliJerkingman" (hereinafter as JERKINGMAN ACCOUNT or "Account"), inside its online digital community (hereinafter as "Website") because in Exhibit 1 (hereinafter as "Admission") Defendant Facebook ADMITS that after Defendant Facebook "REVIEWED" JERKINGMANT ACCOUNT which contained blatant pornographic obscenity, and recklessly "DETERMINED" that it was legitimate lawful content and NOT in violation of its community standards, thus, Defendant Facebook recreated, sponsored, republished, and/or acted as a speaker of the content by deciding to continue displaying it as opposed to deleting it.
Got that? Someone (someone not named in the suit as a defendant) managed to obtain video/photos of Caraccioli, um, jerking, and uploaded it to a Facebook account under the name of Franco CaraccioliJerkingman. This sounds more like revenge porn than defamation (one of the many causes of action raised in the complaint) and it sounds like Caraccioli might have a legitimate complaint against the original poster -- possibly even a criminal complaint -- but has chosen to go after Facebook instead.
Nowhere in the suit is the person who actually uploaded the content mentioned. The lawsuit "names" Does 1-10, but they are apparently unknown employees of Facebook.
Defendant is a corporation registered in the California Secretary of State as FACEBOOK, INC., and DOES 1 through 10… are located in their with its primary place of business at 1601 S. California Ave. Palo Alto, CA 94304.
In case that seems a bit unclear (and large chunks of the 38-page filing verge on unintelligible), there's more evidence in the latter pages of the complaint that indicate Caraccioli is only targeting Facebook and its employees.
At all times mentioned in this complaint, Mr. Caraccioli is informed and believes, and based thereon alleges. that DEFENDANT FACEBOOK, Inc., negligently and carelessly trained and retained its employees including, but not limited to, Does 1 through 10.
[...]
DEFENDANT FACEBOOK negligently failed to investigate the background of DEFENDANT FACEBOOK employees including, but not limited to, Does 1 through 10 in order to prevent republication of sexual or otherwise unlawful content in the DEFENDANT FACEBOOK's Website.
So, there's that. The plaintiff holds Facebook solely responsible for content posted by others. He seems to feel that Facebook's refusal to remove the content should undercut its Section 230 protections. He also claims Facebook is a "publisher," a legal strategy that may work elsewhere (like Canada) but not in the US.
On top of all of this, Caraccioli has filed his lawsuit in the wrong jurisdiction (federal rather than local), something that's pointed out by the judge's order to show cause. The order points out that the plaintiff has raised ten causes of action, not one of which implicates federal law. The complaint's obsession with Section 230 protections doesn't automatically turn this into a federal case, despite his invocation of a federal statute.
Perhaps in recognition of this deficiency, Plaintiff alleges in the FAC’s jurisdictional statement that “this case involves substantial issues of federal law involving the Communications Decency Act 47 U.S.C. § 230.” See FAC, at ¶ 23. But that allegation, and the discussion of the statute in other areas of the FAC, is still not enough for Plaintiff to satisfy his obligation to establish federal jurisdiction. This is because § 230, which generally works to immunize providers of interactive computer services against liability arising from content created by third parties, is not a claim for relief asserted by Plaintiff. Instead, it is a potential affirmative defense to Plaintiff’s claims, no matter its artful inclusion in the FAC. Affirmative defenses are not proper bases for federal jurisdiction.
That paragraph guts a great deal of Caraccioli's arguments, most of which shouldn't be made by your average pro se petitioner, much less a third-year law student. The complaint recycles arguments when not devolving into the needless convolutions often displayed when complainants mistake complexity and long-windedness for unassailable assertions.
Caraccioli maintains he was made aware of the Jerkingman account when the account sent him a friend request. This invitation was apparently sent to many of Caraccioli's friends and family members as well -- many of whom viewed the page and verbally promised Caraccioli they would report it to Facebook. Facebook reviewed the account's content and took no action, saying that it didn't violate any of its policies.
Caraccioli claims this simply can't be true, because it contained explicit video and photographs. As such, his complaint views Facebook's lack of action as an admission of guilt. Either it didn't actually review the content or it willfully allowed forbidden content to go untouched. (Pages added to the first draft of Caraccioli's amended complaint show Facebook recommending he "unfriend" or "unfollow" the Jerkingman account if he was unhappy with its posts.)
From there Caraccioli goes everywhere, but mostly after the Section 230 protections he feels Facebook nullified by not immediately deleting the Jerkingman account.
Now, I'm sure the subject matter of the uploaded videos continues to weigh heavily on Caraccioli's mind, but his repeated assertions about this presumed inapplicability of Section 230 contains some rather… suggestive phrasing. (All spelling errors from the original.)
Taking affirmative steps to review sexually explicit pornographic videos and images and determining that the content is in accordance with or following DEFENDANT FACEBOOK'S "Terms of Service," is at best a conscious, gross negligent, intentional, willful or wonton, or RECKLESS DISREGARD towards DEFENDANT FACEBOOK'S own "Terms of Service" and in violation of the legislative intent thrusting the CDA because children could and did in fact view the sexual obscene content in a place that is not protected or reserved for sexual content.
One should be careful to put as much distance between "thrusting" and "children" as possible when composing paragraphs about the unauthorized posting of masturbatory footage. Other mistakes -- like confusing deliberate or unprovoked action with a takeout staple -- are more easily forgiven.
To sum up multiple pages of identical allegations, Caraccioli asserts that Facebook should have removed the content as soon as it was notified because it was a "per se violation" of its Terms and Services. While other content (say, female nipples) may be open to debate, there was apparently no questioning what was happening in these videos.
Mr. Caraccioli kindly reminds this court that DEFENDANT FACEBOOK engaged in RECKLESS and MALICIOUS undertakings or steps in "reviewing" actual pornographic content and "determined" it was not obscene, because unless one is blind, pornographic content should be self-evident, especially if the words JERKINGMAN precede it's content.
Indeed.
This is followed by a defamation "cause of action." If the truth is the ultimate defense in the face of defamation allegations, where does that leave actual footage of someone performing a sexual act on themselves -- something openly admitted in the complaint by the plaintiff? Well, according to Caraccioli, some facts are defamatory, especially when they're somehow "false" facts.
The entire JERKINGMAN ACCOUNT was false as it pertains to Mr. Caraccioli in name, imagery, and display and diminished his reputation based on the mock and ridicule he experienced.
Now, Caraccioli may have suffered a diminished reputation, but it wasn't because of false statements. He suffered these actionable injuries because someone made something presumably private public. These are not the same thing. But there will be no letting the wind out of Caraccioli's overfilled sails.
The JERKINGMAN account was libelous on its face because it clearly exposed Mr. Caraccioli to hatred, contempt, ridicule and obloquy. Further, the JERKINGMAN ACCOUNT's content was pertaining to Mr. Caraccioli's privacy and involved extremely sensitive material under a reasonable person standard because any person holds their genitalia as a private part due to is sensitive material.
Again, Caraccioli's phrasing is, unfortunately, a bit too on the nose.
The whole complaint is worth reading, if only as an extremely comprehensive example of how not to compose a civil complaint. The sad fact is that this third-year law student felt confident enough in his own legal prowess to act as his own attorney… and then proceeded to file a bloated disasterpiece loaded with misspellings, grammatical errors, severely-flawed legal theories and all in the wrong jurisdiction.
