Published by LawTechie - December 8, 2010 - LawTechie

Motivational speaker James Smith filed a complaint in the U.S. District Court in Utah against, WordPress, and N.Y.-based news site Artvoice for allegedly posting libelous comments about Smith by users.

As we had previously discussed on this board, and as is painstakingly illustrated on the legal information page, Section 230 of the Communications Decency Act immunizes passives re-publishers of defamatory information posted by others via their service. Smith’s complaint attempts to work-around 230 immunity by arguing that the sites “developed and disseminated” the posts and “encouraged and facilitated defamation.”

As we have seen in all such cases to date and, in fact, there have been three such cases recently dismissed against alone, it is virtually impossible to work around the Section 230 immunity. The law on this issue is, arguably, so strong that it would not be surprising to find sanctions held against attorneys who allow their clients to pursue such spurious claims.

As an aside: It is comparatively simple to discover, via several subpoenas, the identities of individuals who post defamatory comments on such boards and then pursue such individuals in court. Although such individuals rarely have the deep pockets that companies have — and this is probably why plaintiffs keeping flinging themselves against the impregnable wall of Section 230 — a fair and plausible remedy can, nevertheless, be achieved against such individuals:

Once their identities are discovered and they find themselves in the position of having to pay an attorney to defend them, such defendants are highly amenable to accepting a settlement whereby they promise never to speak/post about plaintiff again and will likely also agree to reimburse plaintiff for attorney’s fees spent to reach such a settlement. While not a huge payday for plaintiff, this option is certainly a win for companies and individuals who genuinely care about protecting their reputations.

LawTechie is a blog focusing on trends in tech and digital media. Areas covered include intellectual property, cyberlaw, venture capital, transactions and litigation as they relate to the emerging sectors. The blog is edited by the firm's partner Tim Bukher with contributions from the firm's experts in their respective areas of law.


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