Court Rules Website Doesn't Have To Remove Defamatory Comments

DustyShadow writes "In the case of Blockowicz v. Williams, The US Seventh Circuit Court of Appeals refused to force Ripoff Report to remove allegedly defamatory comments posted by a user. The Ripoff Report has a well-publicized no-takedown policy, even if the author wants to remove his/her post, so the Ripoff Report refused. The Blockowiczs then claimed that the Ripoff Report violated FRCP 65(d) because the Ripoff Report was 'in active concert or participation' with the initial posters by refusing the injunction's removal order. The district court (and the Court of Appeals) disagreed with the Blockowiczs. Absent the 'active concert or participation,' the website was outside the court's control. Ripoff Report has released a statement concerning this case: 'In keeping with our core mission of protecting speech to the fullest extent of the law, we decided that it was not just our right but also our duty to ask questions and dig deeper before we could comply with such an order. Other sites claim they support free speech, but when the going gets rough, they will usually protect their bottom line rather than the Constitutional rights and freedoms this country was founded upon. Unlike other sites, even when the speech involved is harsh or negative and even if our position sometimes generates negative press for us, we think that the First Amendment requires us to put our principles before our pocketbook and fight against censorship.'"

Comments

Re:Precedent

[Lunix Nutcase]

Since it was a circuit court of appeals decision, does this set precedent in other districts?

No. The case would have to be appealed to the Supreme Court and the judgment upheld to apply outside of that specific circuit.

Re:but it was false anyway?

[Anonymous Coward]

It is obviously a principle issue since they talk about the first Amendment and their principle is that they do not remove posts(no qualifications), they stuck to their principles and didn't remove it. The court held that they are true to their word, and certainly did not act in concert or participation with any other party(including court orders, which serves to strengthen their case on appeal in my mind).

Re:but it was false anyway?

[mark72005]

I know a person who who was hurt by this. She is a wedding photographer and was unable to meet the increasingly demanding requests of a Bridezilla, who then posted an extremely negative review on ripoff report which contained numerous falsehoods. Even after Bridezilla recanted and wanted to take it down, the website won't remove the comments.

I personally do not see what free speech or the first amendment have to do with not letting anything be taken down, even if the author wants it taken down.

Re:but it was false anyway?

[vux984]

They fought to protect a statement found false in federal court? Why keep it up then if it isn't true in the first place? I can understand the whole "We didn't have our day in court" deal, but it's a lie to start with. You won, but you're still publishing a lie, at least of some sort.

They came first for the Communists and I didnt speak up because I wasn't a Communist.
They they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist.
Then they came for the Jews, and I didn't speak up because I wasn't a Jew.
Then they came for me and by that time no one was left to speak up.

Its right to fight censorship and oppression even when it targets the fringe. Even if it means defending "liars", the KKK, flag burning, and pornography. If you let them come after those, and set precedents, its going to be a much harder fight when they come after you.

Re:but it was false anyway?

[cosm]

They fought to protect a statement found false in federal court? Why keep it up then if it isn't true in the first place? I can understand the whole "We didn't have our day in court" deal, but it's a lie to start with. You won, but you're still publishing a lie, at least of some sort.

Are you suggesting that people should yield to those who claim something is found false? That is wishy-washy ground you stand on. Say a site dedicated to AGW publishes a study showing a positive correlation to technological growth and increased global warming.

Another group comes out and claims the studies methodologies are incorrect, inherently making the conclusions drawn false. Enter beatnik judge/jury who rules in favor of a take-down because of the ruled 'false-ness'. Should we be the arbitrators of 'truthiness' of all published data, especially if it is from a private entity?

If I start a website called oneplusoneequalsthree.com, and it is proved false through the axioms of arithmetic, do you suggest that if I was brought to court I should just give up since I have been proven wrong? This is a strength, and I may be off base with the topic, but I believe in a free society in which there is no censorship by the government, the corporations, or the courts.

Lately it has seemed that free speech has only been free as long as it doesn't piss anybody off. This ruling is a step back in the positive direction.

A popular misunderstanding

[jmorris42]

The 1st Amendment is so misunderstood. Yes you have a right to speak. Yes the GOVERNMENT is forbidden from censoring speech in most cases. But the 1st Amendment is entirely concerned with what the Federal (and some say it extends to the states now by the 14th Amendment) can't do to you. A private entity is perfectly within their rights to censor itself, what it transmits, retransmits, etc. The right to speak is not a requirement to speak. Remember that the 5th Amendment is clear that we have an equal right to remain silent.

So this website isn't 'protecting the 1st Amendment' or 'required by the 1st Amendment' to leave a post up, especially if they know it is false. CAN they leave it up? Sure. SHOULD they? Perhaps, but at a minimum a modicum of responsibility should require they edit the post in question to include (even a small link) to the truth. That isn't censorship, it is seeking the Truth.

Re:A popular misunderstanding

[pem]

I think you yourself are misunderstanding the article and position of the website.

Their position is that the first amendment prohibits others from forcing them to take the defamatory material down. Nowhere did they claim that any law required that they themselves had to leave it up. And, BTW, they apparently did make some minor edits to the article for the exact reason you cite.

Does Ripoff Report encourage defamation?

[akirapill]

It's an honest question since I know nothing about this website. I thought this court motion from the defendants was very interesting, especially this part:

"Xcentric encourages consumers to post complaints about companies, while at the same time offering its “services” to help these companies improve their image -- for a fee. Xcentric’s practices are controversial. In one recent lawsuit, the plaintiff alleged that Xcentric “actively solicit[s] defamatory content from third parties and directly encourage[s] the use of hyperbole and exaggeration in the title and body of the complaint to maximize the impact and marketability of false reports.”"

The motion then goes on to say that this issue is addressed in an faq on Ripoff Report's website, but I was unable to find it. While I certainly don't agree with the brittish model of "sue for libel first, ask questions later", I think we're all in agreement that protecting defamation is definitely not in the spirit of free speech. Is this really part of Ripoff Report's business plan? Anyone familiar with Ripoff Report care to enlighten?

Misunderstanding this case

[KingSkippus]

I think you are misunderstanding this case, or didn't read the summary.

The government issued an injunction to remove comments from the web site that the site refused to obey, which puts it squarely in First Amendment territory. Their claim to be protecting the First Amendment is perfectly valid, as that amounts to government censorship of speech. From TFA:

Plaintiffs got an injunction that ordered defendants to remove defamatory content from the web that defendants had posted. When the defendants did not comply with the injunction, plaintiffs asked the court to enforce the injunction against Ripoffreport.com, the website on which some of the defamatory content appeared.

I don't know where you got the notion that this is just a private entity acting without any government intervention or involvement.

Re:Misunderstanding this case

[jmorris42]

Reread the summary. They claim the 1st Amendment 'requires' them to fight this case. No it doesn't. The 1st Amendment would remain perfectly intact had they exercised some responsibility and allowed the original poster to remove or at least add a disclaimer. Everything doesn't have to be a multi-year Federal case.

And unless you are a total anarchist, we have laws against libel and defamation, etc. and we agree that Congress (and State legislatures) are within their lawful authority to make those laws. When a court issues a ruling (well after the appeals are done) all are bound by that. And again, no 1st Amendment issues remain after the lawsuits are done.

The 1st Amendment has never been understood to be an absolute right to say anything with no possibility of consequences. There is a big difference between one Citizen using the Courts to seek redress of a wrong and the State telling you what you can and cannot say. But there are (and/or should be) exceptions even there.

Re:Misunderstanding this case

[DRJlaw]

Since this is currently the highest modded "First Amendment" post, I'll critique it -- not you specifically.

[1] The government issued an injunction to remove comments from the web site that [2] the site refused to obey, [3] which puts it squarely in First Amendment territory.

[1] Yes. The trial court issued an injunction in a default judgment against the defendant (the poster, not the web site).

[2] Indirectly. The web site (correctly) argued that it was not required to follow the injunction, because it was neither the defendant nor a party "in active concert or participation" with the defendant. There is a rule of the Federal Courts, FRCP 65(d), that constrains the courts' ability to issue judgments affecting those who are not parties to the case. The district court followed it. The plaintiff took this up on appeal.

[3] No. 47 USC 230(c)(1) says that the web site cannot be treated as the speaker, and apparently cannot be compelled to remove content (other than through mechanisms like the DMCA takedown notice existing in other statutes). It would/will be interesting to see if the web site could be compelled to take down content if it was defamatory and the defendant was seeking to have it taken down. However, that is not the case. Nobody has proved that the content is defamatory in a way that binds the web site to that conclusion, and the defendant is apparently MIA.

This is not a first amendment issue, it is first an issue of compliance with judicial rules, and second a statutory issue involving ISP/ICS immunity. The courts will not consider something a constitutional issue if it can be resolved solely though existing rules and statutes. Whatever policy or rhetorical relationship there is with the first amendment, this case has been decided purely based upon legislated laws.

Re:but it was false anyway?

[Lunix Nutcase]

Its right to fight censorship and oppression even when it targets the fringe.

And by "fringe" you mean defamers? A type of speech that has never been ruled to be protected by the 1st amendment? Not to mention that common law tradition stretches back hundreds of years prior with precedents declaring that defamation can carry civil and/or criminal penalties?

Re:but it was false anyway?

[TheCRAIGGERS]

Some sites allow users to edit or remove their posts. Some, like Slashdot, do not. I'm not sure what would happen if I posted something so stupid that I felt the need to email a Slashdot mod to remove my comment, but people need to realize that just like screaming something foolhardy at work or in public, posting something on the internet never really goes away. Even if the mod did take down my comment, Google and a handful of other indexing sites have recorded it, etc.

If the statements posted by Bridezilla were factually false, the photographer probably has a case for libel. Perhaps some might think suing the bride after she recanted would be wrong- to those, I redirect to the first paragraph of my post.

Re:but it was false anyway?

[fuzzyfuzzyfungus]

If their policy is to be, essentially, a public write-once-read-many record to consumer interactions with businesses(which it seems to be) protecting their right to continue that policy seems both perfectly logical and, frankly, to be in the public interest.

It is not at all uncommon for businesses to apply various sorts of suasion, either positive(take down your comment and we'll throw in a free XYZ.." or coercive(take down your comment or we'll sue/report you as a bad buyer/scotch your warranty/whatever). Anybody who has spent time on ebay should be familiar with the phenomenon. Thus, making reports irrevertable likely keeps that to a minimum.

More broadly, there is a much more basic, and vital consideration at stake: Historically, there have existed various common venues that, in general, were never considered responsible for the behavior that occurred on them(If a piece of land, say, is owned by the state or somebody who has never seen it in his life and it has existed as a public right-of-way for 200 years, who are you going to punish, other than the guilty parties themselves, for the fact that something bad happened on it? The idea is barely plausible, and certainly not practical.) On the internet, clearly a vital communication medium of the present and future, there are no such "natural commons". If somebody doesn't maintain the server and pay the bandwidth bills, any internet venue will vanish into the ether within months, at most. All "spaces" on the internet have an owner(at most, an owner who exploits jurisdictional blind spots to try to stay out of sight; but there are no "commons").

If web operators are not given a degree of impunity for material that they happen to host; but have no other relation to, the results will be unpleasant: On a purely practical level, censorship of anything more than some tiny little hobby forum is extremely expensive. Say goodbye to any largely-automated online services. This is why even the DMCA, almost wholly an odious giveaway to the most reactionary of IP lobbyists, recognizes "safe harbor".

In an analogous vein, so long as ripoffreports does not purport to speak for the truth of the statements, merely to provide a venue for making them, suppressing them, would be analogous to forcing landowners to control the speech of anybody they let use their land, even if they do so on a "free public access" basis...

Re:Precedent

[nomadic]

Since it was a circuit court of appeals decision, does this set precedent in other districts? Hopefully it won't be overturned by our good DoJ friends up in the Supreme Court during an appeal.

It can be used as persuasive authority in other courts; the fact that the 7th circuit made this holding strengthens similar arguments elsewhere. And not sure what you mean by DoJ.

Re:Precedent

[Weezul]

Precedent isn't exactly so black and white. If there is no contravening SCOTUS decision, then other lawyers will cite this decision and judges will evaluate it's relevance. Those other judges are always free to disagree, but they'll get slapped down if they're under any circuit court who's affirmed a similar decision.

There is also legal scholarship wherein this decision gets further analyzed, likely strengthening it. All that discussion can be brought to bear on future cases.

SCOTUS need not necessarily ever consider issues that lower courts have resolved satisfactorily & consistently. If however the circuit courts are split on an issue, then SCOTUS will invariably take up their favorite appeals, thus forcing all the lower courts into agreement.

Re:but it was false anyway?

[vux984]

So charge the defamers with defamation... leave the 3rd party website host alone.

Re:but it was false anyway?

[Riceballsan]

Never been to ripoff report, but does the site allow a retort, a citation of the proven lies in a comment, Personally in my experience the best remedy to a lie is to counterballance it with the truth, not to attempt to shut the lie up. Now admitted I am probably a minority but to me logically. Person A: The world is flat Person B: The world is not flat, here is evidence, here is a picture of the world from other angles, here is a peer reviewed science report explaining such You keep person A's lie there, keeping person A with their rights, but anyone looking can see, they don't have a leg to stand on, from a quick glance at ripoff reports site, they allow just that, a Rebuttal box.

Re:Precedent

[postbigbang]

Not quite true. SCOTUS has had several cases where ISPs and websites have been sued to have content taken down, where the ISP wasn't "in active concert" with the purveyors of the content. It allowed the hosting providers/webmasters/portals to be held harmless-- so long as the ISP/webmasters didn't edit or delete user-added content/comments, thus NOT providing a role that shapes the content. IF you don't touch the content, then you're not actively being involved. That's why the Seventh Circuit's language is what it is in this particular ligitation. IANAL, but understand the law and SCOTUS speech precendents well.

Of course, other US Agencies have taken down some websites based on another legal theory, but that hasn't been litigated yet. And in my opinion, they did this without probable cause and without due process.

Re:Precedent

[Weezul]

Ahh thanks! So this case merely extends the existing SCOTUS decisions for ISPs to message boards. To me, that sounds like exactly the sort of legal precedent that SCOTUS might never need to even consider, as many judges will simply accept the existing SCOTUS decisions plus these arguments. Otherwise, they'd need to justify why the SCOTUS decisions for ISPs don't apply to message boards, which doesn't sound easy.

Re:but it was false anyway?

[clone52431]

And when the defamers are convicted and ordered to take down the defamatory posts, which 3rd party webhost refuses to do?

Re:but it was false anyway?

[MightyYar]

Does the New York Times go back and redact the microfilm version of their paper? Or do they print a correction?

Why jump to erase history? Just because it is easier to do than in the past?

Re:but it was false anyway?

[ubernostrum]

Except not really.

Slander and libel are civil torts; basically, when you say or publish something false about someone, and your false statements cause harm to that person, they can sue you. And you can be ordered to pay them for the harm you caused, and ordered by a court to stop saying or publishing the false things that harmed that person.

And this isn't government restricting speech; it's basically no different than, say, a court ordering you to pay someone because you threw a brick through their window, causing damage to their property, and ordering you to stop throwing bricks through the window and maybe even to stay away from that person's property.

This case boils down to, basically:

1. Person A posts some false things on a website, which cause harm to Person B.
2. Person B sues Person A.
3. Person B wins the lawsuit, and gets a court order to have the false things taken down.
4. The website says "wait a minute, we weren't the ones who got sued, and the court just ordered us to do this without letting us show up and present an argument".
5. Appeals court says "yeah, you're right" and that's the end of the court order.

This doesn't mean websites are immune from defamation claims. It means that if you want, as part of your lawsuit, to get a website to take down defamatory material, you'd better be suing the website. Which does complicate things a bit if somebody goes on a spree posting defamatory material about you on a bunch of sites, but if you've sued that person and won, and have the documentation, then -- one hopes -- most sites wouldn't make you go to the trouble of suing them too. RipoffReport, then, isn't standing up for free speech or any sort of high moral principle; they're just being douchebags and saying "too bad this other person screwed you over royally -- now we're gonna do it too, hope you've got a good lawyer and money to pay him!"

Re:but it was false anyway?

[vux984]

Ripoffreports KNOWINGLY is using ILLEGAL speech to make money.

And now so is slashdot. :)

First through the publicity, advertising revenue and membership fees they earn

Like slashdot.

and secondly (in various cases) through charging companies who have been illegally maligned a FEE to post a correction/counterclaim, etc.

I regularly see celebrities maligned in tabloids in the supermarket, and find it hard to get worked up about a website that appears to have an equivalent level (or lack thereof) of integrity. I ignore the tabs, and I've never heard of riffreport and now that I have will likely ignore it too... just as I ignore yelp.

AFAIK, benefiting from illegal actions is not legal.

Did it occur to you that you might know wrong? What is "America's Most Wanted" business model? Or C.O.P.S.? What activity do you think the Charles Manson Fan Club and Memorabilia Superstore?

There is no free speech protection covering ILLEGAL speech. And there is no free speech protection covering another benefiting from speech they know is ILLEGAL.

Is it actually illegal speech? Or is merely alleged to be illegal? It sounds like the plaintiff wanted an injunction to remove it from the web, before it was actually established that it was illegal, and ripoffreport fought that injunction.

Apparently the 7th Circuit Court of appeals agrees that the injunction doesn't extend to ripoffreport.

Re:but it was false anyway?

[MightyYar]

Ah yes... the correction ripoffreports WONT post?

I think you need to visit the original reports.

Attached to each of them is an extremely detailed account of the case, complete with links to relevant court documents and an explanation of their actions. Far, far more information is provided than any NY Times redaction that I've ever seen.

See the problem now?

What I'm seeing is a system that is working. Ripoffreports has a blatant lie on their site, are reluctant to edit it, get dragged into court and as a result of all of this the page gets updated with the full story. That's a win for the disparaged party.

By the way, the original posts are so hilariously bad that it's amazing anyone even cared to sue. They are almost incoherent.

Re:Precedent

[postbigbang]

No, that's not quite the case. If the content is copyrighted material not owned by the uploader, then the ISP/site may or may not have knowledge of the copyright violation. In this case, DCMA notices in the US are what are frequently issued to the site, so as to take down the copyrighted or otherwise claimed material.

If you check the links, you'll see that defamation, and speech is the crux of the matter. Someone got slimed online, and holds the site responsible as well as the slimer. The courts have said that the site isn't responsible unless it edits the material in some way. If it doesn't touch it, then it's not a party to damages as a result of the content of the speech. Movies, MP3s, and digital movies aren't thought to be 'speech' in the circumstance described by the litigation in the post we're talking about. And so, it's not censorship; if it were censorship, then the site involves themselves in the motives of the poster, who is accused of defamation. If they don't touch it, they do nothing but provide the sheet of paper which is written upon by the defamer. Decisions say that when there is no censorship, the site isn't active in the results of what's posted.... in this case, defamation.

Sites like YouTube and others try to enforce terms where they can. They're often held harmless regarding the content that their users upload. It's then up to copyright holders and law enforcement officials to assess and act upon illegal or contravening content posting. You can complain to YouTube if someone has posted your stolen video. But if you don't own the video, it's difficult for you to claim nexus to ask YouTube to take down the video unless the video fails YouTubes terms test.

This means that YouTube primarily offers space, and users upload whatever to that space. YouTube's terms include community guidelines at http://www.youtube.com/t/community_guidelines which spell out what they'll enforce. Notice that they're clear, non-discriminatory and will generally take a complaint to be enforced.

The Seventh Circuit, however, says that the site in question merely delivers all messages, and as a messenger, didn't add to whatever injury occurred.