No Liability for Moderator Posts, Malware Forum Argues

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By Joseph Wright

April 11 — A company operating an online computer security and malware forum isn't liable for forum posts by volunteer moderators, the company argued in an April 8 court filing.

The company, Bleeping Computer LLC, told the U.S. District Court for the Southern District of New York that its non-employee moderators aren't agents or spokesmen of the company. Conclusory allegations to the contrary can't overcome federal immunity for online publishers, Bleeping said in a motion to dismiss the second amended complaint of Engima Software Group USA LLC.

Enigma brought claims against Bleeping for defamation, trade libel and violations of Section 43 of the Lanham Act, 15 U.S.C. § 1125(a), for unfair competition. Bleeping moved to dismiss the claims, and Enigma amended its complaint to add allegations that poster “Quietman7” was Bleeping's agent by virtue of attaining its highest level of moderator status and being a staff member.

Bleeping said its website includes a statement that all revenue is generated from ad sales and all staff are volunteers.

Quietman7 allegedly posted statements in Bleeping's malware forum about Enigma's SpyHunter software. Quietman7, one of three top-level moderators for the forum, responded to user questions and reviewed the software. The posts included references to SpyHunter being a “rogue product” and was sold using “deceptive pricing.”

Section 230 of the Communications Decency Act, 47 U.S.C. § 230(c), grants immunity to providers of interactive computer services against liability arising from content created by others. But it excludes from immunity providers that are partially responsible for the creation or development of the content.

Not Responsible for Moderator Posts

Courts have routinely found that online platforms aren't responsible for content created by forum moderators, Bleeping argued, including in Higher Balance, LLC v. Quantum Future Group, Inc., 2008 BL 280742 (D. Or. 2008) .

In addition to asserting CDA immunity, Bleeping said the statements weren't defamatory and were taken out of context. For instance, Quietman7's actual quote about rogue pricing was that the product “was previously listed as a rogue product on the Rogue/Suspect Anti-Spyware Products List,” Bleeping said.

Bleeping also argued that Enigma is a public figure in the software security community. As such, it can only be defamed by statements made with actual malice, which it failed to allege.

Greenberg Traurig LLP and Randazza Legal Group PLLC represented Bleeping. K&L Gates LLP represented Enigma.

To contact the reporter on this story: Joseph Wright in Washington at jwright@bna.com

To contact the editor responsible for this story: Alexis Kramer at akramer@bna.com