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.
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 This Document available on Docstoc.com at http://www.docstoc.com/docs/71717381/ Case 1:10-cv-00398-CAP Document 58 Filed 02/14/11 Page 2 of 7 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 2 This Document available on Docstoc.com at http://www.docstoc.com/docs/71717381/ Case 1:10-cv-00398-CAP Document 58 Filed 02/14/11 Page 3 of 7 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 3 This Document available on Docstoc.com at http://www.docstoc.com/docs/71717381/ Case 1:10-cv-00398-CAP Document 58 Filed 02/14/11 Page 4 of 7 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 4 This Document available on Docstoc.com at http://www.docstoc.com/docs/71717381/ Case 1:10-cv-00398-CAP Document 58 Filed 02/14/11 Page 5 of 7 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 5 This Document available on Docstoc.com at http://www.docstoc.com/docs/71717381/ Case 1:10-cv-00398-CAP Document 58 Filed 02/14/11 Page 6 of 7 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 6 This Document available on Docstoc.com at http://www.docstoc.com/docs/71717381/ Case 1:10-cv-00398-CAP Document 58 Filed 02/14/11 Page 7 of 7 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 7 This Document available on Docstoc.com at http://www.docstoc.com/docs/71717381/
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