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Gaming Officials' Personal Assets May Be Published Online; Denial Of Authorship Of Web Site Posting Alone May Not Provide Immunity Under CDA
January 2, 2007
GAMING OFFICIALS’ PERSONAL ASSETS MAY BE PUBLISHED ONLINEAccording to a federal district court in New Jersey, the online publication of gaming officials’ personal assets by the State of New Jersey does not violate their privacy rights.
Under the Casino Control Act, commission employees must disclose their financial assets. Although the disclosures are open to the public, they have traditionally been filed away on some dusty shelf in a records office. The commission employees never had any qualms with the law until New Jersey's legislature tweaked it to require that the financial disclosure statements be published on the State's website.
Several employees sued the State, alleging that the planned disclosure would violate their constitutional privacy interests. According to the plaintiffs, the publication of the financial information on the Internet created a greater privacy risk due to the increased accessibility of the information.
The federal judge granted the State’s motion to dismiss the complaint and concluded that where public disclosure is already required by law, the State's decision to make its paper records available online does not implicate any greater privacy interests.
The court stated that for the plaintiffs to prevail on their claim they would have to show "that the differences between the previous system and the new one are one of constitutional magnitude." The gaming officials’ complaint did not allege that the online system disclosed any more information than the former, paper-based system did. Nor was there an allegation that the safeguards to protect the listed individuals' privacy rights are any less stringent, the court pointed out. The court determined that the publication of already public information does not make an otherwise permissible disclosure unconstitutional.
DENIAL OF AUTHORSHIP OF WEB SITE POSTING ALONE MAY NOT PROVIDE IMMUNITY UNDER CDA
The Eleventh Circuit U.S. Court of Appeals recently held that a defendants' claims that they did not "author" the Web site postings that were the subject of a defamation claim were insufficient to allow a district court to summarily determine that the defendants were entitled to immunity under the Communications Decency Act (“CDA”).
The defendants operated web sites which publish consumer complaints about companies that have "ripped them off." Whitney Information Network Inc. (“Whitney”) was a subject of consumer complaints posted on defendants’ websites.
Whitney brought suit against the defendants alleging that they failed to verify the accuracy of the consumer complaints and that the defendants used the websites to extort money from the companies by offering to cease publication for a fee. Whitney’s amended complaint also alleged that the defendants rewrote the consumer complaints at issue by adding inflammatory words such as “dishonest,” “rip off,” and “scam.”
The CDA provides that "[n]o publisher or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." However, liability may be imposed on "information content providers," which are defined 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."
Here, the defendants filed a motion to dismiss on the basis that they were not the authors of the disputed consumer complaints. The federal district court concluded that the defendants were immune under the CDA and granted the motion to dismiss.
The Eleventh Circuit reversed the district court decision. "Even if this conclusory denial can be said to challenge Whitney's allegation that Defendants fabricated some of the consumer complaints posted on their website, it does not controvert Whitney's allegations that Defendants tailored complaints submitted by other individuals, adding words such as 'ripoff,' 'dishonest,' or 'scam,' " the court wrote.
In light of the fact that the CDA defines an "information content provider" as anyone who is responsible "in whole or in part" for Internet content, the court stated that the defendants' categorical denials of authorship did not adequately rebut the complaint's allegations that the defendants defamed Whitney by constructing or developing defamatory content on their Web site. "Thus, whether Defendants were entitled to CDA immunity remained in question, as did the issue of whether their conduct was tortious."
The lesson? CDA immunity is available for web hosts who merely post; it may not be available to hosts who embellish.
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.