by Paul Alan Levy
Late last year, I discussed a Florida trial court ruling holding that although section 230 forbade a lawsuit directly against XCentric Ventures, the operator of Ripoff Report, for allowing a user to post statements about the plaintiff, XCentric could be enjoined from continuing to host the statements once the author had been enjoined and XCentric refused to honor the author's request that XCentric comply with the injunction.
In a decision issued last week, however, a new trial judge assigned to the case has rescinded that order and dismissed the lawsuit against XCentric entirely. Perhaps ominously for the plaintiff, the ruling reserves jurisdiction to consider whether to award attorney fees.
The decision makes XCentric's appeal from the original order moot. In preparing an amicus brief in support of the appeal, however, we had a chance to review the proceedings that led up to the order. The transcript of the hearing at which the original TRO against the author was adopted is particularly revealing. The order was not based on any findings of likelihood of success that the author would be found liable on the defamation claims; everybody understood that the only objective was to facilitate an order against XCentric. The author never conceded that she was even negligent in making her statement that Giordano was a convicted felon, not to speak of acting with actual malice as would be required for a judgment of defamation assuming that Giordano is a public figure. Indeed, there was some suggestion that Giordano had told the author that he had previously been in trouble with the law. So, perhaps he was a felon, just not a convicted felon? The author apparently stood by everything else she had said about Giordano; yet the judge ordered XCentric to take the entire statement down because, the judge said, he didn't want to be involved in editing the statement.
This background simply serves to support the caution with which web hosts sometimes react when they are asked to take down content based on the fact that the plaintiff has already obtained a court order against the original speaker.