Defamation and the Internet
A communication is defamatory if it tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. The Internet's far reach and apparent provision of anonymity to the user have provided new "fertile" ground for actions arising out of defamation. However those wishing to curb libelous statements face an upward battle due to the combination of government legislation, procedural rules and the way in which communications over the Internet are conducted.
Blumenthal v. America Online,992 F.Supp. 44 (U.S.D.C. Dist. Columbia 1998)
Following the lead of Zeran this decision reaffirms that the CDA provides ISPs with absolute immunity for third party postings, even in the case where, as here, the ISP (AOL) retained a certain amount of editorial control over the content of the postings.
Itex Corp. v. John Does 1-100
In September, 1998, the "barter exchange" site, Itex filed an action against some 100 Yahoo BBS authors for allegedly posting false and defamatory statements about Itex's management, including referring to Itex's management as "blind, stupid, and incompetent." In response to a court order, Yahoo provided Itex with the authors' email addresses it had on file. At the time, Yahoo's policies did not include verification of accurate email addresses for its visitors, including its chat room users. Relying on that information to obtain court orders against various ISPs, Itex eventually identified 5 of the "John Does." In part as a result of this lawsuit, Yahoo changed its policy and it now attempts to authenticate the email addresses given by visitors.
Raytheon, Inc. v. John Does, 1-2, Commonwealth of Massachusetts, Middlesex Superior Court, Civil Action Number 99-0816.
On February 1, 1999, Raytheon filed suit against 21 employees it alleges posted or discussed confidential corporate information on a Yahoo! message board, in violation of their employment contracts and Raytheon's published employment policy, and by claiming in addition that this conduct constituted misappropriation of Raytheon's trade secrets. To identify the "John Does," Raytheon sought and received a court order allowing its counsel to take out-of-state discovery from Yahoo, AOL, Earthlink and various other ISPs, seeking documents and information identifying the 21. Yahoo, after being served with a subpoena identified the posters. In May, 1999, Raytheon dismissed the action, after several of the posters resigned.
Shoney's, Inc. v. John Does 1-3, State of Tennessee, Davidson County Court of Chancery
In this case, Nashville-based restaurant chain, Shoney's, Inc., sued three individuals who posted messages on the Yahoo Finance message board suggesting that the company was on the verge of bankruptcy and would be closing a number of its restaurants. The messages were posted anonymously, although some were allegedly "signed" by Shoney's CEO. Along with its complaint, Shoney's filed papers seeking to obtain the names of the posting individuals from Yahoo. Since this case, unlike the Raytheon case, apparently does not include a claim based on breach of employment contract, if the information posted is true, the first amendment right to free speech may indeed be at issue.
Wade Cook Financial Corp v. John Does 1-10, United States District Court for the District of Washington State.
In March, 1999, Wade Cook Financial Corporation, the controversial Seattle-based financial seminar company, sued 10 unknown Yahoo message board users for posts that allegedly defame the firm and its CEO, Wade Cook. The plaintiff has indicated that like Shoney's and Raytheon, it intends to obtain a court order compelling Yahoo to identify the individuals responsible for the posts.
Zeran v. America On-Line, Inc., 129 F.3d 327 (4th Cir. 1997)
In this much discussed case, the court held that the CDA provided immunity to the defendant for claims arising from defamatory messages placed on its service by a third party and preempted similarly based state law claims.
For further information about this case see our in-depth analysis.
Doe v. America Online, Inc., 718 So.2d 385 (Fla. 1998)
Following the lead of Zeran this decision reaffirms that the CDA provides ISPs with absolute immunity for third party postings. No liability was found for the postings advertising child pornography (particularly of the plaintiff's 11 year old son) on AOL's website, despite the plaintiff's attempt to hold them liable as distributors under state child pornography statutes.
Greatdeals.net v. America Online, Inc., 1999 WL 284797 (E.D.Va.)
In a suit where AOL is the plaintiff seeking to prevent Greatdeals.net from sending advertisements to AOL service users, AOL sought to dismiss counterclaims against it by referring to its absolute CDA immunity. The Court dismissed these counterclaims, and found the defendant's characterization of AOL as a "common carrier," subject to discrimination liability, was ill conceived. The case describes at length the extensive measures and variety of methods used by AOL to prevent these communications, since their postings were determined by AOL to harm the company's goodwill and other interests.
Columbia Ins. Co v. Seescandy.com, 1999 WL 266244 (N.D.Cal)
This patent infringement case highlights the difficulties in stopping another's harmful illegal conduct over the Internet. The owner of the "See's Candy" trademark was denied an ex parte preliminary injunction to prevent continued use of the domain names "www.seescandy.com" and "www.seescandys.com" since the motion failed to identity of the other party, referring only to the websites themselves and the pseudonyms they were registered under. The plaintiff faces the conundrum of allowing the infringement to continue while it must conduct extensive investigation to ascertain the true identity of the domain name owner.