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Censorship The Courts Your Rights Online

Court Rules Website Doesn't Have To Remove Defamatory Comments 145

Posted by samzenpus
from the set-in-stone dept.
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.'"
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Court Rules Website Doesn't Have To Remove Defamatory Comments

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  • 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.

    That would be a sad, but not unexpected, precedent.
    • Re:Precedent (Score:4, Informative)

      by Lunix Nutcase (1092239) on Wednesday December 29, 2010 @04:39PM (#34702992)

      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:Precedent (Score:4, Informative)

      by nomadic (141991) <nomadicworldNO@SPAMgmail.com> on Wednesday December 29, 2010 @05:07PM (#34703310) Homepage
      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.
      • 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.

        The DoJ under any administration seems to want to do what the administration wants it to do regardless of law.

        • by nomadic (141991)
          Well the DoJ can't overturn decisions. The most they could do would be to have the Solicitor General's office file an amicus curiae brief.
    • Re:Precedent (Score:4, Interesting)

      by Weezul (52464) on Wednesday December 29, 2010 @05:19PM (#34703408)

      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:Precedent (Score:5, Informative)

        by postbigbang (761081) on Wednesday December 29, 2010 @05:40PM (#34703664)

        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.

        • by Weezul (52464)

          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.

          • Pretty much.

            You're merely a transport until you do something that's not transport-like. If you do something that's not transport-like, then you're somehow become a part of the problem captioned in the litigation. Otherwise, you're just a neutral fact of the matter.

        • by Kjella (173770)

          I'm still not connecting the dots here, in this case it seems they were hit with an injunction issued by the court not just a cease-and-desist letter. It can't be the intended meaning of this ruling that if a user uploads something to a provider, that provider can host the content forever in disregard of all laws. If an user uploaded say kiddie porn, could the provider then just turn around and say "as a policy we don't touch the content, so we refuse"? It's one thing to avoid self-censorship so the hoster

          • 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 t

  • by jmorris42 (1458) * <jmorris@NOSPam.beau.org> on Wednesday December 29, 2010 @04:47PM (#34703078)

    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.

    • by pem (1013437) on Wednesday December 29, 2010 @04:53PM (#34703146)
      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.

    • by KingSkippus (799657) on Wednesday December 29, 2010 @04:56PM (#34703174) Homepage Journal

      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.

      • 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

        If the comment truly is defamatory, it carries no 1st Amendment protection and thus their entire claim is false.

        • Depends, it would also have to be false. Defamatory statements are perfectly acceptable in the US when they are true. The UK and several other countries are less concerned with the truth of the matter and more concerned with protecting the character of the subject of the statements.
          • Truth is a defence is cases of defamation in England (I assume Scottish law is the same). The problem lies in proving that what you said was true. The reform the UK needs is protection for non-malicious defamatory speech where you reasonably believed the statement to be true or in the public interest.

            US law is undoubtedly better, which is why the UK is a favourite destination for libel tourists. The most blatant recent case was Khalid bin Mahmouz suing Rachel Ehrenfeld

          • A true claim doesn't can not be defamation. Defamation is a false claiming that purports to be true but is giving some entity a bad image.

          • by Bigjeff5 (1143585)

            It's possible that a true statement can be used to cause unjust injury to one's reputation (the basic definition of defamation), but it's a really hard thing to do in my opinion. So hard, in fact, that in US law the first criteria for libel or slander is that the statement be false. If it is true it can't legally be called defamation. The dictionary definition even implies that a defamatory statement will be false.

        • by Bigjeff5 (1143585)

          But Ripoff Report didn't say "Such and such company eats babies."

          What they said was "Soandso said such and such company eats babies."

          The injunction was against the original poster for his defamatory speech, but the original poster has no control over Ripoff Report, and Ripoff Report has no obligation to honor an injunction placed on someone else.

          That is the essence of the court case, and why it came out the way it did.

          Now if the original poster owned Ripoff Report, it would be an entirely different story.

      • by pjt33 (739471)

        I read the summary and found it a confusing mess. Going by TFS the sequence of events is this:

        1. Appeals court refuses to force defendant to remove allegedly defamatory comments posted by a user.
        2. Appellant then claims that defendant violated the law by refusing the injunction's removal order.

        WTF? Where did "the injunction" enter the story? Yet another case of a /. editor failing to do his job.

        • by Jiro (131519)

          The actual article is a confusing mess too.

          "Defendant" refers to two different entities here. There's the defendant who posted the material to Ripoff Report (who was sued in the original case), and there's Ripoff Report as the defendant in this case. What happened is that the (first) defendant lost his case and was told to remove the content, and when he didn't, Ripoff Report was sued to try to make them remove it instead.

      • by jmorris42 (1458) *

        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.

        • by hedwards (940851)

          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.

          I disagree, it is essential to the use of the 1st amendment protections that a site not be required to remove materials posted by a 3rd party which turn out to be defamatory and false.

          Were they to bow to the pressure then it would potentially lead to a situation where a website or newspaper could be held liable for something which somebody else posted. Enforcing their first amendment rights is really the only way to ensure that that doesn't happen.

          • by jmorris42 (1458) *

            > Were they to bow to the pressure then it would potentially lead to a
            > situation where a website or newspaper could be held liable...

            Strawman if I ever saw one. Look at copyrights, a site isn't liable for user contributed content until the rights holder files a DMCA takedown notice. Only if the site then refuses is it possible to hold it liable. Exception being when a judge rules your site is nothing but a warez operation like in the recent Limewire fracus.

            In this case we aren't talking about some

      • by DRJlaw (946416) on Wednesday December 29, 2010 @06:18PM (#34704054)

        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) [cornell.edu], 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) [cornell.edu] 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.

    • by sjames (1099)

      Unless the courts are now private entities, the website resisting a court order to take down speech protected by the 1st amendment, it most certainly IS protecting it. Much like AT&T et. al. were complicit in the violation of the 4th amendment when they assisted the NSA in a domestic spying operation.

      The website isn't really REQUIRED by the 1st amendment to leave the post up, but it did feel called upon by the spirit of the 1st amendment to do so.

      It would be perfectly fine within the spirit of free spee

    • by Bigjeff5 (1143585)

      Thanks for not reading the summary (let alone the article).

      There was a court injunction involved. I don't see how that can be interpreted in any way other than a branch of the government (the court) being used to restrict free speech.

      For what it's worth, the injunction wasn't even against the website, it was against the poster, so the suit was on shaky ground to start with (which is why Ripoff Report refused to take the post down in spite of the injunction - the felt it didn't apply to them, and the court

  • It's an honest question since I know nothing about this website. I thought this court motion [scribd.com] 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 an

    • by mugnyte (203225)

      Agreed. Although the judge ruled that the history of the matter may be kept, there are several items that trouble me:

      ROR holds an original (false) claim by a poster, defaming citizen. It also holds the follow-up, most of which is useless banter, and then a legalese summary of the matter.

      ROR seems to be taking the position of "historical records holder" instead of "discussion facilitator". But by providing a forum for each post, the line seems blurred. Essentially, they seem to represent a mock "

  • You mean someone in this country (who didn't represent corporate interests) got justice. Inconcievable.
  • by nomadic (141991)
    Other sites claim they support free speech, but when the going gets rough, they will usually protect their bottom line

    Aww, stop bashing slashdot, OP.
  • Not only does ROR refuse to comply with the original order because it was not a party to it, but the original order was entered as default judgement. Legally it's a finding, but in reality the judge didn't get a chance to hear evidence and make a decision - the original defendents never appeared.

    A cautionary tale. You really should answer lawsuits. You have nothing to lose if the alternative is to ignore it and let the court issue default judgement. And you might at least catch a sympathetic judge who w

  • ripoffreport? the same site that shills for one of the biggest ripoffs around (almost no)cash4gold?
  • In Halifax we have The Coast which did the complete opposite. Not only did they not roll right over but they didn't even send a lawyer to defend their having to release the information on anonymous posters. They said something like, "The judge will make a good decision." Hello, in Canada, we too have an adversarial court system where without a defense the plaintiff will win the day.
    So Bravo Ripoff Report and burn in hell Coast Magazine.
  • The Streisand effect claims another victim. If they hadn't tried to suppress it, I'd have no idea that someone somewhere thought of Megan Blockowicz as a "scumbag".

  • After reading the court's decision, which emphasized the absence of any activity by ROR after the injunction, they were probably unwise to edit the original posting by pre-pending updates about the progress of the case. Now, the plaintiff could argue, they took actual action (editing and re-posting) after the injunction.

    They would have been wiser to move the original (intact) to another URL and redirect the original to the new statement with links to the original at its new URL, possibly even adding some J

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