The Internet Law Resource Center™ is the complete information solution for practitioners in cyberlaw. Follow the latest developments on ICANN’s gTLD program, keyword advertising, online privacy,...
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.
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 email@example.com
To contact the editor responsible for this story: Alexis Kramer at firstname.lastname@example.org
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)