1. Case Name: Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc. 591 F.3d 250 C.A.4 (Va.) 2009.
2. Case Cite: 591 F.3d 250 C.A.4 (Va.) 2009.
3. Facts of the case: Defendant consumeraffairs.com operates a w website that allows consumers to comment on the quality of businesses, goods, and services. Plaintiff Nemet is a car dealership and 20 negative posts about its automobiles and services on defendant’s website.
4. Procedural Posture: Nemet filed suit against consumeraffairs.com in U.S. District Court for the Eastern District of Virginia for defamation and tortious interference with business expectancy. Defendants filed a 12(b)(6) motion to dismiss based on immunity under §230 of the Communications Decency Act (“CDAâ€).
The district court granted the motion and Nemet amended its complaint which again was dismissed under a 12(b)(6) motion to dismiss based on the immunity provided to the defendant under §230 of the CDA. The plaintiff appealed the decision to the U.S. Court of Appeals for the 4th Circuit.
5. Holding: Affirmed dismissal of plaintiff action based on the immunity provided to the defendant under §230 of the CDA
6. Likely future importance or unanswered questions: Court clearly following the broad immunity granted to interactive computer service granted. Court distinguished this case with Roomates.com based on the fact that the questions asked by consumeraffairs.com were not soliciting illegal information.
7. Analysis:
47 U.S.C. 230 provides for immunity for a provider or user of an interactive computer service from responsibility as the publisher or speaker of any information provided by another information contentment provider. The immunity turns on whether the interactive computer service provider’s action make it and information content provider, which is any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the internet or any other interactive computer service.
Nemet does not dispute that consumeraffairs.com is a interactive computer service provider under the CDA, but it contends that consumeraffairs.com is also a information content provider because the structure and design of the website or the participation in the preparation of consumer complaints to assist with class action suits effectively makes consumeraffairs.com a information content provider.
The court distinguishes the Roommates.com case because in Roommates.com users inputted illegal content as a necessary condition of use, Nemet has merely alleged that Consumeraffairs.com structured its website to develop information related to class-action law-suits, which is a legal activity. The court concluded Nemet failed to plead facts sufficient to show Consumeraffairs.com was an information content provider and not covered by CDA immunity.
The plaintiff also contended that 8 or the 20 posts were fabricated by consumeraffairs.com and accordingly makes the website and information content provider stripping it of its immunity under that CDA. The court quickly dismisses the notion of fabrication because the plaintiff based this solely on the fact that Nemet could not prove what users had made the consumer complaint. Nemet argument was based solely on speculation and motion to dismiss needs pleadings that rise above a speculative level.
Courts continue to adopt a clear interpretation to preserve immunity for interactive service providers so long as the provider is not the information content provider nor solicits illegal information.
2. Case Cite: 591 F.3d 250 C.A.4 (Va.) 2009.
3. Facts of the case: Defendant consumeraffairs.com operates a w website that allows consumers to comment on the quality of businesses, goods, and services. Plaintiff Nemet is a car dealership and 20 negative posts about its automobiles and services on defendant’s website.
4. Procedural Posture: Nemet filed suit against consumeraffairs.com in U.S. District Court for the Eastern District of Virginia for defamation and tortious interference with business expectancy. Defendants filed a 12(b)(6) motion to dismiss based on immunity under §230 of the Communications Decency Act (“CDAâ€).
The district court granted the motion and Nemet amended its complaint which again was dismissed under a 12(b)(6) motion to dismiss based on the immunity provided to the defendant under §230 of the CDA. The plaintiff appealed the decision to the U.S. Court of Appeals for the 4th Circuit.
5. Holding: Affirmed dismissal of plaintiff action based on the immunity provided to the defendant under §230 of the CDA
6. Likely future importance or unanswered questions: Court clearly following the broad immunity granted to interactive computer service granted. Court distinguished this case with Roomates.com based on the fact that the questions asked by consumeraffairs.com were not soliciting illegal information.
7. Analysis:
47 U.S.C. 230 provides for immunity for a provider or user of an interactive computer service from responsibility as the publisher or speaker of any information provided by another information contentment provider. The immunity turns on whether the interactive computer service provider’s action make it and information content provider, which is any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the internet or any other interactive computer service.
Nemet does not dispute that consumeraffairs.com is a interactive computer service provider under the CDA, but it contends that consumeraffairs.com is also a information content provider because the structure and design of the website or the participation in the preparation of consumer complaints to assist with class action suits effectively makes consumeraffairs.com a information content provider.
The court distinguishes the Roommates.com case because in Roommates.com users inputted illegal content as a necessary condition of use, Nemet has merely alleged that Consumeraffairs.com structured its website to develop information related to class-action law-suits, which is a legal activity. The court concluded Nemet failed to plead facts sufficient to show Consumeraffairs.com was an information content provider and not covered by CDA immunity.
The plaintiff also contended that 8 or the 20 posts were fabricated by consumeraffairs.com and accordingly makes the website and information content provider stripping it of its immunity under that CDA. The court quickly dismisses the notion of fabrication because the plaintiff based this solely on the fact that Nemet could not prove what users had made the consumer complaint. Nemet argument was based solely on speculation and motion to dismiss needs pleadings that rise above a speculative level.
Courts continue to adopt a clear interpretation to preserve immunity for interactive service providers so long as the provider is not the information content provider nor solicits illegal information.