Immunity Law Doesn't Shield Forum Site From Moderator Posts

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By Alexis Kramer

July 11 — An internet forum operator couldn't assert federal online publisher immunity against claims that one of its volunteer moderators allegedly defamed an anti-malware product on the site, the U.S. District Court for the Southern District of New York ruled July 8 ( Enigma Software Group USA LLC v. Bleeping Computer LLC , S.D.N.Y., No. 1:16-cv-00057, 7/8/16 ).

The plaintiff adequately pled that the moderator acted as an agent of the forum site and therefore didn't qualify as a third-party content provider, Judge Paul A. Engelmayer said.

Section 230 of the Communications Decency Act protects online publishers against liability for content produced by third parties, as long as they are performing traditional publisher functions and aren't content providers themselves.

The decision demonstrates the limits of that protection in cases where an agency relationship, even if not express, exists between the publisher and content creator.

Acting as Agent

Plaintiff Enigma Software Group USA LLC alleged that Quietman7—a moderator of Bleeping Computer LLC's online computer security forum—posted defamatory comments about Enigma's anti-malware program. The posts advised users to remove Enigma's program and replace it with products that Bleeping received commission for promoting, Enigma alleged.

Enigma brought claims against Bleeping for libel under New York law and false advertising under the Lanham Act, 15 U.S.C. § 1125(a). Bleeping moved to dismiss the claims on the grounds that it couldn't be held liable for comments posted on its site by volunteer moderators (21 ECLR 522, 4/13/16).

The court rejected Bleeping's argument that Quietman7 wasn't a paid employee and therefore not acting as an agent when he posted the allegedly defamatory content. Bleeping publicly designated Quietman7 as a high-level staff member who had the authority to enforce forum rules and answer user questions, the court said.

By holding him out as a staff member who enjoyed “special powers” and who could be trusted to provide correct answers, Bleeping represented that Quietman7 was authorized to post on the company's behalf, the court said in allowing the libel and Lanham Act claims to proceed.

To contact the reporter on this story: Alexis Kramer in Washington at akramer@bna.com

To contact the editor responsible for this story: Keith Perine at kperine@bna.com

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