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Granting a bodybuilding website and a nutritional supplement company's summary judgment motions, the court ruled that posts made by the moderator, who was otherwise not an employee of the company that operated the website, did not represent the views of the website. As a result, the court determined that the plaintiff's Lanham Act claim against the website that was based on the moderator's posts failed for a lack of apparent authority.
The court also dismissed claims against another forum user's employer after determining that the employer had neither the duty, nor the means, to remove the allegedly tortious posts from the website.
Derek Cornelius founded Syntrax Innovations Inc., which manufactured a line of sports nutrition and dietary supplements. In 2004, Syntrax sold all of its assets, including the “Syntrax” brand name to SI03 Inc. and ceased operations. SI03 continues to sell its products under the Syntrax brand name.
Gaspari Nutrition Inc. manufactures and markets its own line of bodybuilding supplements.
Both companies sell their products on the Bodybuilding.com website. The website also features an online forum, where members may post comments and discuss available products. Moderators on the site are not paid a salary, nor are they employees, but they do receive a discount on all products they purchase from the site.
In 2006, Daniel Pierce, using the handle “deserusan” posted disparaging comments on a bodybuilding.com forum about Syntrax, SI03, and Cornelius.
In 2007, Gaspari hired Pierce as a part-time customer service representative. Pierce updated his signature on bodybuilding.com to reflect his new status as a Gaspari employee and all his past posts now featured “Gaspari Rep,” making it appear that he was a Gaspari representative when the posts were made, even though he was not.
Another forum member, under the pseudonym Ingenium posted statements questioning the quality of one of SI03's products. At the time of the post, Ingenium was not a moderator, but subsequently became one, making his signature appear in bold for all past posts.
In 2008, Cornelius and SI03 sued more than fifteen parties, including Gaspari and Bodybuilding.com, alleging violations of the Lanham Act, 15 U.S.C. § 1125(a) and various state law tort claims. After moving from state court to federal court, the number of claims against Bodybuilding.com was narrowed to just the Lanham Act claims. All the claims against Gaspari remained.
Bodybuilding.com and Gaspari moved for summary judgment.
The plaintiffs’ unfair competition claim against bodybuilding.com was based on a theory that the moderator had the express or implied authority to speak on behalf of the website.
Judge B. Lynn Winmill disagreed.
Winmill said, “Moderators are agents for the limited purpose of moderating discussions, but this does not make them all-purpose agents.” In order to determine whether the moderator was given actual authority, or was cloaked with express authority to speak on behalf of the website, the court said that it was essential to look at the relationship between the moderator and the website.
The court said that there was no evidence demonstrating that bodybuilding.com had given the moderator express authority to speak on its behalf about dietary supplements that were sold on the website. To the contrary, the only express authority that was granted was, simply, the authority to moderate a forum discussion.
Apparent authority is determined by assessing whether a third person was led to believe that the agent was acting for the principal. Again, the court found that the evidence presented did not support an inference that the moderator had the apparent authority to speak on behalf of the website. The court found that:
At most, Bodybuilding.com presented to the public that moderators had the ability to oversee and edit forum discussions. This does not translate into a representation that forum moderators represent Bodybuilding.com when stating personal opinions on a forum.
In the alternative, the court said that the plaintiffs’ claim against bodybuilding.com failed because there was no proof of damages. The court pointed out that there was no evidence that anyone ever saw the post in question.
The court's decision sidestepped any analysis of the protections granted to interactive computer services under the Communications Decency Act, 47 U.S.C. §230. In a previous ruling, the court was persuaded that allegations that the user's comments were made at the website's request were plausible enough to cast doubt on the website's CDA immunity at an earlier state in the litigation.
Because the claims against Gaspari rested on statements that were made by a forum user prior to the commencement of his employment with the company, the court said that the plaintiffs needed to show that Gaspari adopted those statements. Specifically, the court said that the plaintiffs needed to demonstrate that Gaspari “intentionally and unreasonably failed to remove the allegedly defamatory posts after notice and opportunity to do so.” The court found the plaintiffs’ evidence wanting on all accounts.
It pointed out that Gaspari had no control over the forums, and that even if it had known of the posts when it hired the forum user, the user himself was powerless to delete the comments more than 48 hours after they were posted. In summation, the court said it would be “unreasonable” to hold Gaspari liable “for posts buried in an online forum, which were made by a forum user who was not an employee at the time, and which were posted on a website that Gaspari did not own or control.”
Gaspari was represented by Kevin M. Abel of Bryan Cave, St. Louis. Bodybuilding.com was represented by Christopher D. Olszyk Jr. of Pepper Hamilton, Philadelphia. SI03 and Cornelius were represented by Terri Rae Pickens of Boise, Idaho.
By Tamlin H. Bason and Nathan Pollard
Opinion at http://pub.bna.com/ptcj/1000027June1.pdf
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