by Paul Alan Levy
In several posts on this blog, Greg Beck and I have written about the crucial role played by section 230 of the Communications Decency Act in fostering free speech online — and consumer commentary and criticism in particular — by protecting Internet Service Providers against liability for content posted by their users. A new lawsuit by Vision Media Television Group seeks to evade that protection.
Over the years, various publications have reported claims about deceptive sales techniques used by a Florida company named Vision Media Television. Vision Media denies these reports and indeed claims that they are defamatory, but didn't sue the New York Times, Consumers Union or other publications that have carried the reports. Instead, it has apparently been trying to sanitize its reputation by trying to intimidate bloggers who, it hopes, can't afford to defend themselves.
For example, in 2008, Vision Media sued Lesley Richard, the owner of a "green" fashion company, claiming that each of several businesses that had turned down Vision Media's business had done so because of her blog criticism. That blogger settled the case to avoid the expense of litigation.
Apparently emboldened by that experience, Vision Media contacted our client Julia Forte, the operator of 800Notes.com, a site where recipients of marketing calls can discuss their experiences, where the stories about Vision Media were repeated. Vision Media's lawyer acknowledged that, as a web host, Forte was protected by section 230, but claimed to be an expert in getting around section 230 and threatened her with the "vagaries" and expense of litigation unless she both removed all messages and coughed up the names of the anonymous posters who were criticizing it. When she refused, Vision Media filed suit, including a potpourri of vague allegations about Forte's supposed responsibility for the defamatory material. Vision Media also claims that the use of its name in the course of the critical posts constitutes trademark dilution. As in the Richard case, the complaint features the names of several businesses that allegedly decided not to hire Vision Media just because of what they read on 800Notes.
The idea here was apparently intended to prevent her from securing dismissal of the case without undergoing discovery. Vision Media has consistently told Forte that all she needs to do to avoid the suit is to remove the critical messages and identify their authors. Vision Media has even offered to pay for these services, but Forte is not interested in following the Ripoff Report model.
In a motion to dismiss filed today, we argue that, because section 230 provides an immunity from suit, and not just a defense to liability, Vision Media is subject to the same heightened pleading standards as a plaintiff would face in a qualified immunity case seeking damages against public officials.
In his Roommates.com opinion, Judge Kozinski warned about clever efforts to evade section 230. Professor Goldman has said that lawyers who think they can “outsmart” 230 are probably wrong. We don’t expect Vision Media to succeed in its endrun on section 230 immunity.