Appeals Court Says Topix Can't Be Held Responsible For Overdose Death Of Forum Member

from the tragic-circumstances-don't-create-new-liabilities dept

When a tragedy occurs, it's human instinct to find someone to blame -- even if said tragedy was an accident… or self-inflicted. When Andrew Witkoff overdosed on Oxycodone he obtained from someone he met on a website, his parents understandably looked to hold someone responsible for his death. But they chose to go after the website. And that hasn't resulted in any closure or remuneration, as Eric Goldman reports.

Seeking to buy Oxycodone, Witkoff did some Google searches and found a Topix forum titled “Oxycontin, Roxicodone, Oxycodone” (Oxycodone forum).” Topix created this forum title, but all of the content in the forum came from Topix’s users. One forum thread discussed where to buy Oxycodone, and Witkoff found a post where Daniel Park offered to sell Oxycodone. Witkoff and Park communicated by email and arranged a physical space meeting to close the purchase. Witkoff overdosed on Oxy and died two days later.

Topix is no stranger to legal maneuvers by parties who feel it should be held responsible for the content created by its users. Historically, this has taken the form of harassment from grandstanding government officials. In this case, it's the boy's parents. Both have chosen the wrong target for their actions. The protections afforded by Section 230 of the CDA explicitly bar websites from being held responsible for the actions of users.

The district court arrived at that conclusion last year. The Witkoffs appealed, only to find the higher court similarly inclined to find in favor of Topix, despite their use of a somewhat novel legal argument.

Plaintiffs contend defendant here is liable because it created the offending content—the Oxycodone forum. Thus, plaintiffs assert they are bringing a cause of action against defendant as an information content provider. Plaintiffs contend the allegation that defendant’s creation of the Oxycodone forum is sufficient to state a claim for public nuisance.

"Public nuisance" also includes the distribution of controlled substances, as Goldman points out. The problem is that -- even though Topix created the forum where Witkoff met someone who would sell him Oxycodone -- all content within the forum was generated by users. Public nuisance or not, Topix did not create the content, arrange the meeting between Witkoff and the other forum user or sell drugs to Andrew Witkoff.

Plaintiffs seek to hold defendant liable for “the illegal sale of controlled substances” under a nuisance theory. (Civ. Code, § 3479.) In the first amended complaint, plaintiffs allege that defendant aided and abetted illegal drug trafficking by failing to monitor or prohibit such communications. However, the illegal discussions concerning controlled substances that allegedly occurred on defendant’s Oxycodone forum derives from third-party threads created by the Web site’s users. There is no allegation that defendant controlled or created the content in the threads. The gravamen of plaintiffs’ allegations is to hold defendant liable as publisher of content from third parties. Immunity under section 230(c)(1) applies in such situations.

The court also points out that, although the end result was the illegal sale (and illegal purchase) of a controlled substance, simply discussing controlled substances is not a criminal act.

Oxycodone is a Schedule II controlled substance, which means it can be obtained legally for medical use. Defendant’s creation of an Oxycodone forum would encourage discussion of Oxycodone by its users. Discussion of Oxycodone is not per se illegal. Defendant is entitled to the section 230(c)(1) immunity as to plaintiffs’ claims.

As for the seeming oddness of Topix creating a forum for the discussion of Oxycodone, Goldman obtained a statement from a Topix rep. Basically, the site auto-generates any number of "topics/x," including the 842 forums it has algorithmically created to discuss a number of prescription drugs. If you're in the business of "generating" third-party content, any topic that starts a conversation is a win, no matter how sketchy it might appear from the outside. And, as the Second Circuit Appeals Court notes, simply discussing controlled substances is not illegal, even if any number of aggrieved parties would desperately like this to be true.

Filed Under: andrew witkoff, appeals court, cda 230, free speech, liability, oxycodone, secondary liability
Companies: topix