Florida Appeals Court Recognizes That Section 230 Immunity Extends to Injunctive Relief — Even When the Content Provider Collaborates in Seeking an Injunction

by Paul Alan Levy

Accepting an argument advanced by Public Citizen as amicus curiae as well as by Xcentric Ventures, the operator of Ripoff Report, a Florida appeals court has held that section 230's immunity for the providers of interactive computer services extends to requests for injunctive relief and not just to claims for damages.  In Giordano v. Romeo, about which I previously blogged here and here, the court said that immunity from "any actions" includes actions seeking injunctive relief.

In our amicus brief, we argued that the fact that the original provider of an allegedly tortious statement joined in seeking the injunctive relief to remove it had no proper bearing on the outcome, not just as a matter of the language of the statute but also as a matter of public policy.  Faced with the prospect of an action for damages, it is all too possible that the original speaker will go along with injunctive relief against someone else to avoid facing the expense of litigation (or a damages judgment), regardless of whether she is actually liable for defamation.  Thus, a rule allowing injunctions poses some of the same problems of the heckler's veto that makes section 230 immunity so important as a protection for the hosting of uncomfortable truths. 

The record in the case provides ample support for this concern, because the original speaker agreed to describe her original post as false solely for the purpose of supporting an injunction against Xcentric, without even accepting her own liability for defamation -- not only was it agreed that her concession could not be used against her in the litigation, but she denied that her statement was either negligent or made with actual malice.  But if she can't be found liable, how could Xcentric be liable?   Moreover, the falsity that Romeo conceded (that Giordano was a "convicted" felon) was but a minor detail in an otherwise damning post.  Our amicus brief noted, for example, Giordano's own admissions about past felonious behavior on this own part, and explained that redaction of a single false detail was just one of a range of sensible responses that made sense as a matter of public policy.  We further argued that the trial judge's original order commanding the removal of the entire post was bad law and well as bad for the marketplace of ideas.

As notable as the short but sweet reasoning about section 230 in the opinion is the searing paragraph in which the Court denounces Xcentric for its “appalling” business practices (Eric Goldman's blog post about the case quotes the relevant paragraph in full).  As regular readers of this blog know, I too have expressed concern about Xcentric’s “Corporate Advocacy Program” (see the above-linked posts, as well as this more recent post about PissedConsumer.com).  In agreeing with Xcentric on the legal issue, our amicus brief cited concerns about this program as well (see page 14).  But although the Florida court also mentioned this aspect of Xcentric's business practice in a footnote that quotes our amicus brief (page 4, footnote 1), the gist of the criticism is not directed to Xcentric’s Corporate Advocacy Program, but rather to an aspect of Xcentric’s business model that is more pervasive on consumer review sites — that “[n]o checks are in place to ensure that only reliable information is publicized” and that Xcentric does not deploy lawyers “to determine whether its users are availing themselves of its services for the purpose of tortious or illegal conduct.”  The court seems to have paid no mind to the problem that paying lawyers to analyze the truth or falsity of posts once they are challenged (not to speak of assessing the motives of the poster) would quickly run any consumer review site out of business. 

The Florida court was also wrong in one factual respect.  Relying on Xcentric’s own braggadocio about never removing a post, the court faulted Xcentric for refusing to “entertain any scenario in which Xcentric would remove an offending post.”  Pages 4-5.  In fact, as our amicus brief pointed out (on pages 13-14), Xcentric has a separate "arbitration" program, apart from its Corporate Advocacy Program, whereby it will consent to review of the veracity of specific statements by arbitrators selected by Xcentric, who are empowered to decide thet specific statements should be redacted from a given post.  The post as a whole is not removed (thus allowing Xcentric to maintain its stance in that regard).  The court of appeals did not address this detail.  Giordano's lawyer has indicated in the past that he sees this case as a vehicle to ask the Florida Supreme Court to revisit section 230 immunity, so perhaps these details will be addressed there.

Thanks to section 230 maven Eric Goldman for joining Public Citizen on this amicus brief and to Florida professor Lyrissa Lidsky for being local counsel in the case.

Comments

[md]

There should be some mechanism for removing defamatory content from sites like ripoffreport.com without having to participate in an extortion scheme, such as (in my opinion) the Corporate Advocacy Program offered by Xcentric.

[Seth Finkelstein]

It strikes me that there are plenty of scenarios where someone might subsequently agree that they got a story wrong, but did enough checking at the time so didn't act with malice or reckless disregard for truth. Yes, yes, this can be a false declaration based on intimidation. But journalists getting burned or deceived by supposedly "reliable sources" is hardly unknown. Never allowing any recourse under any circumstances, as a matter of law, because alleged recantations might be based on intimidation, seems like a pathological outcome.