I know many of you cringe when you are presented with negative feedback from an online reviewing source about your treatment center or recovery residence. “Write them a letter to take it down because it’s slanderous,” many clients have told me. Easier said than done.
Well, one company took it to court in the case of Medytox Solutions, Inc., et al v. Investorshub.com, Inc., (Fla. 4th DCA 2014, 39 Fla. L. Weekly D2500b) which opinion was just released last week, on appeal from the Broward County (Fort Lauderdale) circuit (trial) court.
The gist of the outcome – you can’t sue the internet service provider/hosting website if it is acting only as the “publisher” of the information; you have to go after the person who actually posted the offending material. This is because website operators enjoy immunity from such relief under section 230 of the Communications Decency Act, 47 U.S.C. § 230.
In this instance, the defendant, InvestorsHub.com, operates a website that serves as a forum for investors to discuss financial markets and information about public companies. In 2012, Christopher Hawley, using the screen name “Seamus outer,” posted several allegedly defamatory statements about the plaintiffs, Medytox Solutions, Inc., Seamus Lagan, and William Forhan, on the InvestorsHub website.
In a separate action, Medytox Solutions and Mr. Lagan filed a third-party complaint against Hawley for defamation and tortious interference. The plaintiffs’ counsel contacted the defendant and its counsel, seeking to have the postings removed from the website. The defendant removed two of Hawley’s posts, but declined to remove the remaining two posts.
In February 2013, the plaintiffs brought an action for declaratory relief against the defendant for its failure to remove the allegedly defamatory postings from its website The plaintiffs later filed an amended complaint, adding a separate count for injunctive relief.
InvestorsHub.com brought to the court’s attention that the Communications Decency Act broadly provides immunity relating to “any action” against a provider of an interactive computer service if the action is premised upon the content of another. Both the trial court, and the appellate court, agreed.
Section 230 of the Communications Decency Act states that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1). Section 230 further states that “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” 47 U.S.C. § 230(e)(3).
Certain causes of action, however, are not barred by section 230, including actions based on federal criminal statutes, intellectual property law, and “any State law that is consistent with this section.” 47 U.S.C. § 230(e)(1)-(3).
The plain language of section 230 “creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.” Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997). In enacting section 230, “Congress wanted to encourage the unfettered and unregulated development of free speech on the Internet, and to promote the development of e-commerce.” Batzel v. Smith, 333 F.3d 1018, 1027 (9th Cir. 2003). Section 230 was therefore designed, in part, “to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum.” Zeran, 129 F.3d at 330.
In Doe v. America Online, Inc., 783 So. 2d 1010, 1013-17 (Fla. 2001), the Florida Supreme Court held that section 230 preempts Florida law as to causes of action based in negligence against an Internet Service Provider as a distributor of information. Accordingly, the court explained: “We specifically concur that section 230 expressly bars ‘any actions’ and we are compelled to give the language of this preemptive law its plain meaning.” Id. at 1018.