Order Granting RipOff Report summary judgment based on CDA 230

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					           Case 1:10-cv-00398-CAP Document 58                          Filed 02/14/11 Page 1 of 7




                                  UNITED STATES DISTRICT COURT
                                  NORTHERN DISTRICT OF GEORGIA
                                        ATLANTA DIVISION

 MELISSA A. HERMAN, DAVID A.
 RUSSO, and HERMAN & RUSSO,
 P.C.,
                    Plaintiffs,                                  CIVIL ACTION
          v.                                                     NO. 1:10-CV-398-CAP
 XCENTRIC VENTURES, LLC and
 EDWARD MAGEDSON,
                    Defendants.

                                                    O R D E R

         This matter is before the court on the defendants’ motion for

summary judgment [Doc. No. 30].

I.       Factual Background

         Melissa A. Herman and David A. Russo are partners with Herman

& Russo, P.C., a consumer bankruptcy law firm providing legal

services to clients seeking to file for bankruptcy relief [Doc. No.

1, page 4].              The defendant Xcentric Ventures operates a website

known          as      the        “Rip-Off            Report,”             which      is     located    at

www.ripoffreport.com, and the defendant Edward Magedson is the

manager of Xcentric Ventures [Doc. No. 30-3, page 2].                                          This case

arises from a “report” posted on the defendants’ website on

February 11, 2009, by an anonymous author identified as “John or

Jane Doe” [Doc. No. 1, pages 10-11].                                   The report is written from

the     perspective             of     an     unhappy          former        client    who    claims   the

plaintiffs accepted $30,000 to handle the author’s case but then




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failed to return phone calls and otherwise neglected the case

[Id.].         The plaintiffs allege that the defendants published this

defamatory report about the plaintiffs on their website and added

original content to the report by creating a title for the report,

keyword metatags for the report which are used by Internet search

engines to determine the subject of the webpage, and original

content on the website itself [Doc. No. 1, pages 11-13].

         On February 11, 2010, the plaintiffs filed this suit [Doc. No.

1].      The plaintiffs bring claims for defamation/libel, defamation

per se/libel per se, false light, tortious interference with

contract and other business expectancies, and misappropriation of

name or likeness.                  The plaintiffs seek a permanent injunction and

recovery of monetary damages.                               The defendants move for summary

judgment on all of the plaintiffs’ claims, alleging that the

undisputed evidence shows that they are entitled to immunity

pursuant to the Communications Decency Act, 47 U.S.C. § 230(c)(1)

[Doc. No. 30].

II.      Legal Standard

         The      party       seeking         summary          judgment           bears   the   burden   of

demonstrating that no dispute as to any material fact exists.

Adickes v. S.H. Kress & Co., 398 U.S. 144, 156 (1970); Johnson v.

Clifton, 74 F.3d 1087, 1090 (11th Cir. 1996).                                        The moving party's

burden is discharged merely by “‘showing’ – that is, pointing out

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to the district court – that there is an absence of evidence to

support [an essential element of] the nonmoving party’s case.”

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In determining

whether the moving party has met this burden, the district court

must view the evidence and all factual inferences in the light most

favorable to the party opposing the motion.                                       Johnson, 74 F.3d at

1090.        Once the moving party has adequately supported its motion,

the non-movant then has the burden of showing that summary judgment

is improper by coming forward with specific facts showing a genuine

dispute. Matsushita Electric Industrial Co. v. Zenith Radio Corp.,

475 U.S. 574, 586 (1986).

         In deciding a motion for summary judgment, it is not the

court’s function to decide issues of material fact but to decide

only whether there is such an issue to be tried.                                          Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 251 (1986).                                        The applicable

substantive law will identify those facts that are material.                                        Id.

at 247.          Facts that in good faith are disputed, but which do not

resolve or affect the outcome of the case, will not preclude the

entry of summary judgment as those facts are not material.                                          Id.

Genuine disputes are those by which the evidence is such that a

reasonable jury could return a verdict for the non-movant. Id.                                       In

order for factual issues to be “genuine” they must have a real

basis in the record.                   Matsushita, 475 U.S. at 586.                   When the record

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as a whole could not lead a rational trier of fact to find for the

nonmoving party, there is no “genuine issue for trial.”                                              Id.

(citations omitted).

III. Legal Analysis

         The Communications Decency Act (“CDA”) states that “[n]o

provider or user of an interactive computer service shall be

treated as the publisher or speaker of any information provided by

another information content provider.”                                   47 U.S.C. § 230(c)(1).       It

also states that “[n]o cause of action may be brought and no

liability may be imposed under any State or local law that is

inconsistent” with the CDA’s immunity provision.                                           47 U.S.C. §

230(e)(3).            The CDA defines an “information content provider” as

“any person or entity that is responsible, in whole or in part, for

the creation or development of information provided through the

Internet or any other interactive computer service.”                                       47 U.S.C. §

230(f)(3).            As a result, “the CDA protects website operators from

liability as publishers, but not from liability as authors.”

Global Royalties, Ltd. v. Xcentric Ventures, LLC, No. 07-956-PHX-

FJM,      2007       WL     2949002,          at     *3     (D.     Ariz.         2007).   Courts   have

interpreted the CDA broadly in cases involving the publication of

user-generated content.                      See, e.g., Doe v. Myspace, Inc., 528 F.3d

413, 418 (5th Cir. 2008).                       Since the CDA was enacted in 1996, every

state and federal court that has considered the merits of a claim

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against the Ripoff Report has, without exception, agreed that

Xcentric and Magedson are entitled to immunity under the CDA for

statements posted by third-party users.                                    See, e.g., GW Equity, LLC

v. Xcentric Ventures, LLC, No. 3:07-CV-976-O, 2009 WL 62173 (N.D.

Tex.      2009);         Intellect           Art     Multimedia,             Inc.    v.    Milewski,   No.

117024/08,            2009       WL     2915273          (N.Y.        App.        Div.    2008);   Whitney

Information Network, Inc. v. Xcentric Ventures, LLC, No. 2:04-cv-

47-FtM-34SPC, 2008 WL 450095 (M.D. Fla.); Global Royalties v.

Xcentric Ventures, LLC, 544 F. Supp. 2d 929 (D. Ariz. 2008).

         The court finds that the defendants are entitled to summary

judgment because they are immune from suit under the CDA for the

following reasons:

         A.       The undisputed facts show that the defendants did not
                  create either the report or the title at issue; this
                  information was provided solely by a third party. As
                  such, the author may be liable to the plaintiffs for
                  his/her statements, but the CDA fully protects the
                  defendants from liability as to these statements.

         On February 11, 2009, a third party author identified as “John

or Jane Doe” logged onto the Ripoff Report and posted a report

about the plaintiffs [Doc. No. 1, pages 10-11].                                              The webpage

containing this report includes some content from the author and

some generic content created by the defendants [Doc. No. 30-4, page

6].       When the user submitted his/her posting to the site, the

author’s content was combined with the existing generic material to


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create the final standardized page common to every report on the

website [Doc. No. 30-4, page 10].                              The “original content” to which

the plaintiffs refer in the first amended complaint is nothing more

than generic text contained in the website’s code which was created

prior to the time that Doe wrote the report at issue here [Id.].

This code is part of the preexisting layout and format of the

website and is common to all of the hundreds of thousands of user-

generated reports on the site [Doc. No. 30-4, page 7].                                       Likewise,

every page on the entire website includes the same generic metatags

“rip-off, ripoff, and rip off” which are used to identify the

Ripoff Report website and index the website, not to disparage the

plaintiffs [Doc. No. 30-4, page 8].                                   As such, the defendants did

not “add their own original content” to material from the third-

party author.                Because the defendants only created the generic

portions of the Ripoff Report website and did not create or alter

any part of the report about the plaintiffs, the CDA applies to bar

the plaintiffs’ claims regarding the report and title at issue

here, and the defendants are entitled to summary judgment as to

these claims.

         B.       The remaining content created by the defendants is not
                  “of and concerning” the plaintiffs and is therefore not
                  actionable by the plaintiffs.

         The defendants are not entitled to immunity under the CDA as

creators of the words “Ripoff Report,” the website address, and the

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general slogans that appear on the website because the defendants

admit that they created that material. However, the defendants are

entitled to summary judgment because the term “Ripoff Report” is

not defamatory as to the plaintiffs. In order to establish a claim

for defamation, “the plaintiff has the burden of showing, inter

alia, that ‘the publication was about the plaintiff, that is,

whether it was of and concerning her as a matter of identity.’”

Smith v. Stewart, 660 S.E.2d 822, 828 (Ga. Ct. App. 2008) (quoting

Pring v. Penthouse International, Ltd., 695 F.2d 438, 439 (10th

Cir. 1982)).              Under the circumstances of this case, no reasonable

reader would believe that the application of the term “Ripoff

Report” implies the existence of any facts beyond those contained

in the specific reports appearing on the defendants’ website.                                       The

plaintiffs cannot defeat the robust immunity of the CDA by trying

to creatively plead around it.                                    As such, the defendants are

entitled to summary judgment as to the plaintiffs’ remaining

claims.

IV.      Conclusion

         For the reasons stated above, the defendants’ motion for

summary judgment [Doc. No. 30] is GRANTED.                                        The remaining pending

motions in this case [Doc. Nos. 45, 46, and 54] are DISMISSED as

MOOT.        The clerk is DIRECTED to close this action.

         SO ORDERED, this 14th day of February, 2011.



                                                       /s/ Charles A. Pannell, Jr.
                                                       CHARLES A. PANNELL JR.
                                                       United States District Judge


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Description: Another victory for a website sued by someone who didn't like what was posted about them by a user on the website. Ripoff Reports wins on this motion for summary judgment based on CDA Section 230. The lesson? Don't sue User Generated Content websites, like Docstoc if you don't like what is in a document posted by a Docstoc member to the Docstoc website. You will lose, and will need to pay attorneys fees and costs, and might get santioned.