Fair Housing Council of San Fernando Valley v. Roommates.Com

1. Fair Housing Council of San Fernando Valley v. Roommates.Com • Court = Ninth Circuit • Plaintiff = Fair Housing Council of SF • Defendant = Roommates.com • They are fightin’ about whether Roomates.com violated federal fair housing law by allowing users to screen roommates. • Court is asked to decide whether Roommates.com is immune under Section 230 of CDA.

2. Fair Housing Council of San Fernando Valley v. Roommates.Com • Defendant operated website to match prospective renters with people looking for a roommate. In order to view the site, users must submit information for their profiles, including gender, sexual orientation, and whether they live with children. Plaintiffs sued, arguing that defendant’s business violated the federal Fair Housing Act and California’s housing discrimination laws.

3. Fair Housing Council of San Fernando Valley v. Roommates.Com

4. Fair Housing Council of San Fernando Valley v. Roommates.Com • Court held: • Roommates.com was not immune from liability. Defendant became a content provider when it posted a questionnaire and required users to answer as a condition of doing business. Questions that are unlawful to ask in face-to-face interaction do not “magically” become lawful when posed online. However, “Additional Comments” section, which allowed users to write a short essay about what they were looking for in a roommate, received § 230 immunity because it was passively displayed by defendant and unedited.

5. Fair Housing Council of San Fernando Valley v. Roommates.Com • What are the implications of this case for new media? • Is the distinction between active and passive solicitation of content clear?

6. the more the site in involved in content creation, the less protection they get from Section 230. For example: • Roommates.com Denied 230 Immunity by Ninth Circuit En Banc” • Goldman argues that Roomates DOES NOT mean that site involvement=liability. • The case was unique in that the ruling rested on California state HOUSING DESCRIMINATION LAW and not on 230 as such • Even though Goldman disagrees, he notes that both the SEC and FTC do read Roomates as suggesting that content encouragement might compromise 230 protection.

7. Stayart v. Yahoo!What’s a name worth? • Seventh Circuit Court of Appeals • Beverly Stayart sues Yahoo! and Friendfinder.com • Web searches linked her name to sites and ads she found “shameful”. (Endorsing pornography and online pharmaceuticals.) She sues for trademark infringement and state law claims. • Does Stayart have “standing” to sue in federal court for trademark infringement. • Yahoo! wins on appeal. Stayart lacks standing to sue for trademark infringement because she lacks a “commercial interest” in her name. Also, the District Court did not err in allowing her to amend her complaint.

8. Maxon v. Ottawa Publishing Company At what price anonymity? • Illinois Appellate Court (3rd Dist.) • Donald and Janet Maxon sue Ottawa Publishing, publisher of The Times. • The Maxons want to unmask the identity of certain anonymous posters on Ottawa’s web site. • What is the appropriate legal test to apply to a petition to identify anonymous speakers. • The Maxons win the appeal because the appellate court finds that the trial court applied an incorrect test and also finds that the Maxons stated a claim for defamation. So The Times must identify the anonymous posters.

9. Top Trends In Defamation, Privacy and Right of Publicity • Efforts to Avoid CDA Section 230 Immunity • Defamation Suits Against Rating Websites • Developments in Defamation and Social Media • Developments in Right of Publicity and Social Media

10. Losing Section 230 Immunity • Website Solicited User Content • Plaintiff Alleges that Website Wrote Content • Plaintiff alleges non-immune claim (e.g. trademark) • Republishing or Retweeting User Content

11. Section 230 – Website Solicited ContentJones v. Dirty World Entertainment, 2:09-cv-00219 (N.D. Ky. Jan. 10, 2012).S.C. v. Dirty World LLC, 11-CV-00392 (W.D. Mo., Mar. 12. 2012) Summary from the Digital Law Media Project: http://www.dmlp.org/threats/jones-v-dirty-world-llc#description

12. The plaintiff argued that because Richie read each user-submitted post before approving it for publication on TheDirty, and because TheDirty encouraged "the development of defamatory material," § 230's protections did not apply. TheDirty respond in detail to the idea that TheDirty "created" the posts at issue. TheDirty argued that § 230 caselaw was well-established, and that performing editorial/moderation functions did not suffice to make TheDirty the "creator" of the posts. On January 10, 2012, the district court judge denied TheDirty's motion for summary judgment. The judge based his § 230 ruling on two cases: Fair Housing Council of San Fernando Valley v. Roommates.com, and Federal Trade Commission v. Accusearch. Taken together, according to the judge, these cases stood for the proposition that if a website "specifically encourage[s] development of what is offensive about the content" of the disputed post, § 230 provides no protection. The judge ruled that TheDirty's name and management style, combined with Richie's added comments to the post, meant that TheDirty encouraged the offensive content.

13. 01/25/13: The first trial of the matter ended in a hung jury after two days of deliberation; the district court judge declared a mistrial. 07/11/13: After retrial, a jury awarded Jones $338,000 in damages. 08/12/13: The trial court denied the defendants' motion for judgment as a matter of law, again rejecting the application of Section 230 to the facts of the case. Based upon the legislative intent of Section 230 to encourage voluntary censorship of offensive content, the court held that the protection of the statute does not extend to intermediaries who actively encourage the posting of offensive material: "[T]he Act's text indicates that it was intended only to provide protection for site owners who allow postings by third parties without screening them and those who remove offensive content."

14. Section 230 – Plaintiff Alleges Website Wrote Content Vo Group v. Opinion Corp., 8758/11 (N.Y. Sup. Ct. May 2, 2012)

15. Vo Group v. Opinion Corp PissedConsumer is a consumer review site . . . [that] only wants negative consumer reviews of businesses . . . and its basic business model is to rank the negative consumer reviews highly in Google search results and then charge the businesses money to take the edge off that indexing. Vo Group claims it got snared in PissedConsumer’s scheme and allegedly chose not to pony up the requested cash ($5k) to PissedConsumer. Instead it sued PissedConsumer for a potpourri of claims. PissedConsumer moved to dismiss the lawsuit. The court denied the dismissal Goldman: http://blog.ericgoldman.org/archives/2012/06/pissedconsumer.htm

16. Vo Group v. Opinion Corp Defendants can’t get a motion to dismiss, as discovery and/or a trial are needed to determine whether they deserve 230 immunity because if they are found to be the authors of defamatory stuff, they aren’t immune.

17. Vo Group v. Opinion Corp • Also claimed trademark violations (the court dismissed those) • Also claimed extortion, racketeering, and bribery (for the $ demands): RICO violations. The court did NOT dismiss those.

18. Libel Suits Against Rating WebsitesGrand Hotel Resort v. TripAdvisor (E.D. Tenn. Aug. 22, 2012)

19. UNITED STATES COURT OF APPEALSFOR THE SIXTH CIRCUITKENNETH M.SEATON, dba Grand ResortHotel and Convention Center,Plaintiff-Appellant,v.TRIPADVISOR LLC,Defendant-AppelleeAppeal from the United States District Courtfor the Eastern District of Tennessee at Knoxville.No. 3:11-cv-00549—Thomas W. Phillips, District Judge.Argued: July 30, 2013Decided and Filed: August 28, 2013

20. Defendant Trip Advisor LLC ranked Grand Resort numberone on its “2011 Dirtiest Hotels” list. Seaton filed suit in Tennessee state court, alleging claims for defamation and false-light invasion of privacy based on TripAdvisor’s placement of Grand Resort on the “2011 Dirtiest Hotels” list. After removing the case to federal court, TripAdvisor filed a motion to dismiss, asserting that Grand Resort’s placement on the list is protected under the First Amendment. Seaton moved to amend his complaint, seeking to add two additional claims: “trade libel/injurious falsehood” and tortious interference with prospective business relationships. The district court granted TripAdvisor’s motion to dismiss and denied Seaton’s motion to amend as being futile. For the reasons set forth in this opinion, we AFFIRM the district court’s grant of TripAdvisor’s motion to dismiss and its denial of Seaton’s motion to amend his complaint

21. Libel Suits Against Rating Websites(Wong v. Jing – Cal. Superior Ct. May 13, 2011)

22. Even though the site might have 230 protection, they are forced to pay some costs: Calif. dentist to pay $80K in attorney fees in Yelp case May 17, 2011 -- A California dentist who filed a defamation case over negative reviews on Yelp.com must pay $80,000 in attorney fees to a young patient's parents, whom she sued, according to a court ruling issued May 12. http://www.drbicuspid.com/index.aspx?sec=log&URL=http%3a%2f%2fwww.drbicuspid.com%2findex.aspx%3fsec%3dsup%26sub%3dpmt%26pag%3ddis%26ItemID%3d307681%26wf%3d37

23. Libel Suits Against Rating WebsitesDavis v. Avvo (W.D. Wash. March 28, 2012) • Florida lawyer sues lawyer rating site for misrepresenting his practice and misappropriating his image. • Dismissed under Florida’s new anti-SLAPP statute because plaintiff failed to produce evidence to support claims for false advertising and misuse of likeness

24. Developments in Defamation and Social Media

25. Spooner v. Associated Press (D. Minn., Dec. 9, 2011)NBA ref sues AP after reporter tweets that ref said “he’d get it back” to the coach after a bad call • The Associated Press and an NBA referee have reached a settlement in a lawsuit against the news agency and one of its sports writers over a Twitter message suggesting the referee intentionally made a bad call to make up for another one that went against the Minnesota Timberwolves. Referee William Spooner agreed to drop the suit, filed last March in Minneapolis, pending removal of the Jan. 24 tweet from Jon Krawczynski’s Twitter account and a payment of $20,000 for Spooner’s litigation costs

26. Developments in Defamation and Social Media • CDA immunity for re-tweeting? • Applicability of shield laws to journalists who use social media? • Discovery and social media? • Is personal jurisdiction triggered by use of social media?