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Web Host Doesn't Lose CDA Immunity By Editing Postings; Apple Can't Subpoena Bloggers' Sources
October 10, 2006
WEB HOST DOESN'T LOSE CDA IMMUNITY BY EDITING POSTINGS
A federal trial court in Pennsylvania has determined that an event organizer who was the subject of postings criticizing a party he'd organized, could not overcome the immunity provided by the federal Communications Decency Act, despite his contention that the Web site operator's review and editing of the postings made the operator a "content provider."
The event organizer, Anthony DiMeo III, was upset by anonymous postings that appeared on a Web site called Tuckermax.com. The postings criticized DiMeo for organizing a $100 per ticket New Year's party where the food and alcohol ran out before midnight. As is the American Way, DiMeo brought a defamation suit against Tucker Max, the operator of the Tuckermax.com Web site.
DiMeo had a slight problem, however -- Section 230 of the federal Communications Decency Act. That section provides 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." Relying on this provsion, Tucker Max filed a motion to dismiss to the complaint.
Under Section 230, immunity applies, if: (1) the defendant is a provider or user of an "interactive computer service"; (2) the asserted claims treat the defendant as a publisher or speaker of the information; and (3) the disputed communication does not originate from the defendant himself but comes from someone else--another "information content provider."
Faced with this hurdle, DiMeo argued that Max didn't qualify for Section 230 immunity because Max's selecting and editing the message board posts transformed him into an "information content provider." Dimeo argued that because an "information content provider" includes anyone who "is responsible, in whole or in part, for the ... development of information provided through the Internet ...." Max's editing constituted the "development of information" and thus disqualified him from immunity. Had Dimeo been this creative in party planning, this whole mess may never have come up. But the court was not willing to accept DiMeo's creative reasoning.
According to the court, "If 'development of information' carried the liberal definition that DiMeo suggests, then § 230 would deter the very behavior that Congress sought to encourage." In other words, the immunity exists to protect Web site hosts who choose to edit content. If Dimeo's argument carried the day, those operators would be deterred from editing.
Ultimately, DiMeo's skills as a litigant were about as effective as his skills as a party planner. The court dismissed the case with prejudice.
In what may legitimately be characterized as a cutting edge decision, a California Appellate Court has ruled that bloggers who publish online articles concerning Apple Computer's planned release of new technology qualify for first amendment protection and cannot be compelled to reveal their sources.
The issue arose in a lawsuit brought by Apple in response to a series of articles published on various Apple rumor blogs concerning new Apple technology called "Asteroid." The new product would greatly expand the ability of Mac users to turn their computers into sound recording studios.
The articles contained artist renditions and detailed technical information about Asteroid. Apple sued the blog sites, contending that the authors had obtained confidential presentation slides which constituted trade secrets. In the course of the suit, Apple sought an order requiring the bloggers to disclose their sources. Apple also subpoenaed the sites' e-mail service providers to discover who traded e-mails regarding the device.
Apple had argued successfully to the trial court that the California reporter's shield law, which permits reporters to withhold the identity of confidential sources, protected only those engaging in "legitimate journalistic activities." Whatever that is.
The appellate court rejected Apple's argument and the lower court's ruling. The court was troubled by the prospect of drawing a distinction between "legitimate" and "nonlegitimate" journalism. The court noted, "[a]ny attempt by courts to draw such a distinction would imperil a fundamental purpose of the First Amendment, which is to identify the best, most important, and most valuable ideas not by any sociological or economic formula, rule of law, or process of government, but through the rough and tumble competition of the memetic marketplace."
Having found that bloggers qualified for the privilege, the court next needed to decide whether the privilege applied in this setting. The court found that it did. In its holding on this point, the court focused on two factors: Apple's failure to exhaust other sources for obtaining the information, and the need to protect the confidentiality of the information.
The court criticized Apple for not doing a more thorough investigation to determine who within the company may have leaked the secret information. Typically, courts will not compel a reporter to reveal sources unless the party seeking disclosure has exhausted other sources.
On the second point, while the court acknowledged the importance of protecting trade secrets, it held that the protection must give way to the First Amendment where the contested disclosure is both newsworthy and not for competitive advantage.
In the court's view, the blogs did not disclose a secret recipe for a breakfast cereal. Rather, by analogy, they published stories about Apple's plan to release a new cereal. "Such a secret plan may possess the legal attributes of a trade secret .... But it is of a different order than a secret recipe for a product."
The court also felt the information about Asteroid was unquestionably newsworthy. It noted, "[t]he decentralization of expressive capacity represented by such developments is unquestionably one of the most significant cultural developments since the invention of the printing press."
The court was equally unsympathetic to Apple's attempt to subpoena the bloggers' e-mail service providers. In the court's view, the subpoenas violated the federal Stored Communications Act. That act prohibits entities providing electronic communication services from knowingly divulging the contents of any stored electronic communication.
The court found that none of the exceptions to the Act's prohibition applied. Apple asked the court to apply the exception that allows disclosure incident to the protection of rights or property of the service provider. Under this theory, Apple argued that it was in the best interests of the service providers to disclose the information, to avoid being sanctioned for failure to comply with the subpoena.
The court wouldn't bite (Apple, get it?). The court felt that "[t]he effect of such an interpretation would be to permit disclosure whenever someone threatened the service provider with litigation. Arguably even a subpoena would be unnecessary; the mere threat would be enough."
Many observers have wondered whether courts would apply the protections traditionally enjoyed by mainstream media to bloggers. This decision doesn't definitively answer the question, but it certainly comes down on the side of the new media.
This Newsletter is a periodic publication of Graydon Head & Ritchey LLP and should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult your own advisor concerning your situation and any specific legal question you may have.