Communications Decency Act update: A New Jersey Superior Court judge recently evoked controversy among First Amendment and media law experts by ordering GoDaddy, Domains by Proxy, ASP.net and Verisign to “shut down and disable” three websites which published allegedly defamatory posts. See Apex Technology Group, Inc. v. Doe, N.J. Superior Ct., Law Division, Middlesex County, No. MID-L-7878-09, Order (Dec. 23, 2009).
The preliminary injunction order was issued based on the plaintiffs’ claim that it had been defamed by postings that appeared on the sites www.endh1b.com, www.itgrunt.com, and www.guestworkerfraud.com. The order also directed the three websites to take down the posts, as well.
No one on the defense side was represented at the preliminary injunction hearing. The court order also suggests that no one at the domain name registries/registrar/web hosting companies received notice of or were represented at the hearing. As a result, the order appears to be rife with substantive and procedural defects. (Not an unusual result when an order is issued without the benefit of defense counsel briefing).
But what about the substantive issue at stake in this order: What rights does a person who is the object of a defamatory Internet post have to get the post removed? Can the aggrieved seek an injunction against the author of the post? If she can’t locate the author, who may be anonymous, does she have the right to get an injunction against the host of the website to get it removed?
In fact, the law is somewhat unsettled in this area, and the relief available may depend on the jurisdiction in which the plaintiff sues.
• The First Amendment to the U.S. Constitution bars injunctive relief, but only until a jury trial on whether the statement in question is defamatory has been conducted.
The First Amendment to the U.S. Constitution protects freedom of speech, but this protection is not unlimited. A series of U.S. Supreme Court decisions have held that a media outlet may be enjoined from further publication of a libelous statement. See Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376, 390 (1973). However, such an injunction may only be issued after a full jury determination that the statement is in fact defamatory. See Kramer v. Thompson, 947 F.2d 666, 676 n. 25 (3d. Cir. 1991) (summarizing cases).
This means that a court generally may not issue such an order via a preliminary injunction, which is a pre-judgment remedy issued without a full evidentiary hearing. See, e.g., Bynog v. SL Green Realty Corp., S.D.N.Y., No. 05-civ-0305, Memorandum and Order, (Dec. 22. 2005). (Which means that the New Jersey court erred in issuing a preliminary injunction requiring takedown of defamatory statements). However, once there has been a full evidentiary hearing, this at least means that the First Amendment would not pose a bar to the issuance of such an injunction.
• Free speech guarantees in several State constitutions bar all injunctive relief for defamatory speech.
The constitutions of certain states contain language that provides broader protections to free speech than the U.S. Constitution. For example, Article I, section 7 of the Pennsylvania Constitution provides:
“The free communication of thoughts and opinions is one of the invaluable rights of man and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty.”
This provision has been held to mean that while a person may be held civilly liable for defamation, he may not be enjoined from speaking or repeating the defamation. Kramer v. Thompson, 947 F.2d 666, 677 (3d. Cir. 1991). So even if a jury had held that a web post is defamatory, neither the post’s author, nor a web site that published it, could be ordered to take the post down. (The New Jersey Constitution contains free speech language similar to Pennsylvania’s: ” Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right.” The New Jersey court order may have violated this provision, as well).
On the other hand, courts in some other states have permitted injunctions against further publication of defamatory statements, once the plaintiff has obtained a jury verdict. See id. at 676-77. In these states, there would be no state or federal constitutional bar to injunctive relief against the author or publisher, once the plaintiff obtained a jury verdict finding the web post defamatory.
• The Communications Decency Act likely bars actions for injunctive relief against ISPs for third party posts
The Communications Decency Act (47 U.S.C. § 230) provides that “No provider or user on an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” See Section 230(c)(1). Section 230(c)(3) further states that “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”
Some early court decisions held that these provisions mean that an ISP cannot be held liable for tort damages for third party posts, but a court may issue an injunction requiring an ISP to take down a defamatory post. See Mainstream Loudon City Library v. Board of Trustees of the Loudoun City Library, 2 F.Supp.2d 783, 790 (E.D. Va. 1998).
However, this position was not followed by subsequent courts, who viewed the CDA as providing ISPs with immunity from any type of civil action for third party defamatory posts. See, e.g., Ben Ezra, Weinstein and Co. v. AOL, 206 F.3d 980 (10th Cir. 2000); Noah v. AOL Time Warner, 261 F.Supp.2d 532, 539-540 (E.D. Va. 2003).
Recent cases in the 7th and 9th Circuits have questioned whether it is proper to think of the CDA as an immunity statute. It remains to be seen whether this will affect legal thinking on whether the CDA bars injunctive relief against ISPs for third party posts. (At present, this looks like another substantive error by the New Jersey court).
What all this means is that the relief available to a plaintiff depends on the jurisdiction in which he/she attempts to get an injunction. In all jurisdictions, the First Amendment prohibits a court from issuing an injunction against further publication until a full evidentiary hearing on whether the post was defamatory. In some jurisdictions, current state law prevents a court from issuing an injunction prohibiting further publication against any party – including the ISP or the author of a post. In other jurisdictions, current views on the CDA prevent a court from issuing such an injunction against an ISP, but not the author of the post.
If a plaintiff wishes to obtain an enforceable takedown order against an ISP, it should prepare for an uphill battle. However, with careful pre-litigation planning, it can at least reduce the number of battles that it will have to fight.