In Elliott v. Donegan, a federal district court in New York held that Section 230 of the Communications Decency Act does not warrant the dismissal of a defamation claim where the plaintiff’s complaint did not “foreclose[] the possibility that Defendant created or developed the allegedly unlawful content.” The content at issue was a “publicly accessible, shared Google spreadsheet” titled “Shitty Media Men” that the defendant Moira Donegan had started containing a list of men in the media business who had allegedly committed some form of sexual violence.

Donegan, a media professional, circulated the list via email and other electronic means to women in her industry in an effort to share information about “people to avoid.” The list included the headings “NAME, AFFILIATION, ALLEGED MISCONDUCT, and NOTES.” It also included a disclaimer at the top of the spreadsheet stating, “This document is only a collection of misconduct allegations and rumors. Take everything with a grain of salt.”

After Donegan first published the list, “Shitty Media Men” assumed a life of its own. The spreadsheet went viral and a flurry of allegations were swiftly submitted. Soon, 70 men were named and major media outlets were preparing to publish related stories. As a result, the defendant took the spreadsheet offline about 12 hours after she posted it.

Among the men named on “Shitty Media Men” was the plaintiff Stephen Elliottt, whom the court describes as “an author and content creator.” Someone added Elliottt’s name to the list, writing under the “ALLEGED MISCONDUCT” heading “rape accusations, sexual harassment.” In addition, Elliott’s entry was outlined in red, indicating that he was “accused of physical sexual violence by multiple women.” Subsequently, other changes were made to Elliottt’s entry on the list: additional allegations against him were added and his entry was moved up from row 13 to row 12.

Elliott asserted that the allegations about him on the list were false and he sued Donegan and a number of Jane Does for defamation.

Donegan moved to dismiss the case pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure based on Section 230 of the Communications Decency Act, a federal statute that, as regular readers of Socially Aware will already know, provides broad immunity to online intermediaries from liability for content provided by others. The court first examined whether Donegan was “a provider or user of an interactive computer service,” which is a threshold requirement for the Section 230 safe harbor. Likening the spreadsheet to a message board that allows individuals to post comments and citing Fed. Trade Comm’n v. LeadClick Media, LLC, the court held that Donegan did qualify as an interactive computer service provider.

As the court noted, however, an interactive computer service provider such as Donegan is only eligible for Section 230 immunity with respect to “information provided by another information content provider.” In other words, if an interactive service provider such as Donegan also serves as an ‘information content provider’ of the content which gives rise to the underlying claim,” then Section 230 immunity does not attach. This is the same principle originally established in the seminal Section 230 case Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, where the Ninth Circuit held that an online intermediary cannot claim Section 230 immunity for unlawful content if the intermediary itself created or contributed to the content.

With this principle in mind, the Donegan court proceeded to examine Elliott’s complaint to determine whether, on the face of the complaint itself, it was clear that Donegan had not herself created or developed the allegedly defamatory spreadsheet entries concerning the plaintiff. First, the court noted that Elliott had alleged “that Defendant fabricated the allegations against him and inputted them in the List.” With respect to any defamatory entries that Donegan herself may have posted to the list, the court notes that “[t]he parties—and the Court—agree that CDA immunity does not apply if that is proven true.”

The court then goes on to examine the plaintiff’s allegations that Donegan “published the allegedly defamatory accusations in the List as relayed to her by another person.” Donegan argued that, with respect to publishing third-party accusations, “she is shielded by §230 because she did not materially contribute to their allegedly defamatory meaning, and did not change the meaning and purpose of the content.” The court, however, noted that “this argument assumes a key fact not known to the Court at this juncture—whether Plaintiff materially contributed to the allegedly defamatory meaning—which is the very fact on which CDA immunity turns.” In other words, at the pleading stage, the court simply did not have the necessary facts to determine whether Donegan did or did not enjoy §230 immunity with respect to the accusations provided by others.

The court also raised an interesting issue based on the Ninth Circuit’s analysis in Batzel v. Smith. Specifically, the court noted, citing Batzel, that “if Defendant inputted information into the List that was not provided to Defendant for use on the Internet, she would not qualify for CDA immunity.” For example, under the Batzel principle, Donegan would not be eligible for the Section 230 safe harbor if she received a “snail mail” letter from a third party containing accusations against the plaintiff and then posted those accusations on the online list. Given the preliminary stage of the case, the court was not able to determine whether any third parties who provided information to Donegan did or did not intend that information to be posted online.

Donegan fared somewhat better with respect to Elliott’s argument that Donegan was not entitled to Section 230 immunity because she had specifically encouraged posting of unlawful content. Elliott asserted that Donegan encouraged defamatory content through the disclaimer at the top of the spreadsheet, which described the list as “a collection of allegations and rumors” that should be taken “with a grain of salt.” According to Elliott, “[t]his statement alone could reasonably have been interpreted by the List’s recipients as encouraging them to post their own ‘rumors’.” The court was not convinced, however, and noted “[t]o the extent that Plaintiff relies on the List’s design and headers to argue that Defendant specifically encouraged unlawful content, that reliance would be misplaced.”

The court analogized the spreadsheet’s format to the website design in Roommates.com. In that case, the defendant Roommates.com operated a website that matched individuals seeking roommates. A portion of the website presented users with questions regarding their sex, sexual orientation and familial status, and their roommate preferences based on these same criteria. Users were required to provide answers to these questions using predetermined responses presented through dropdown menus. Because the dropdown menus specifically required users to provide responses regarding their roommate preferences “based on criteria that appear to be prohibited by the [Fair Housing Act],” the Ninth Circuit held that Roommates.com could not claim Section 230 immunity with respect to the allegedly discriminatory activity.

The Roommates.com court made a different determination, however, with respect to users’ input in the website’s blank text box, which asked users to “tak[e] a moment to personalize your profile by writing a paragraph or two describing yourself and what you are looking for in a roommate.” Some users did enter discriminatory comments in the text box, but the Ninth Circuit held that Roommates.com was entitled to Section 230 immunity for such comments because Roommates.com did not  “provide any specific guidance” regarding users’ entries in the comment box, and it did not “urge subscribers to input discriminatory preferences.” The Elliottt court held that the format of Donegan’s spreadsheet was more similar to the Roommates.com comment box than to the Roommates.com dropdown menus:  “[a]s with Roommates’ comment box, the possibility that someone may have entered defamatory content onto the List does not mean that Defendant specifically encouraged unlawful content.”

The court also held, however, that the “full contours of Defendant’s conduct during the approximately 12 hour period during which her Google spreadsheet was online are unknown at this juncture. Accordingly, Plaintiff is entitled to discovery on whether Defendant specifically encouraged the posting of unlawful content on the List.”

Finally, the court rejected Elliott’s argument that Donegan’s augmentation of third-party contributions to the list undermined the Section 230 safe harbor. Donegan had highlighted certain spreadsheet entries, including Elliott’s, in red to signify accusations of “physical sexual violence by multiple women” and added to such entries the annotation “multiple women allege misconduct.” Elliott argued that, based on such augmentation of the entries, Donegan had “materially contributed to the allegedly defamatory statement” about him.

The court rejected this argument, however, and cited LeadClick for the proposition that “the key question in determining whether a defendant is liable for developing content is not whether she ‘augment[ed] the content generally,’ but instead whether she ‘materially contribut[ed] to its alleged unlawfulness’.” Aggregation and classification of third-party content such as Donegan’s augmentation of the spreadsheet entries, the court held, constitutes “quintessential neutral assistance,” citing Herrick v. Grindr, a case we previously covered on Socially Aware. Such neutral assistance does not transform an interactive computer service provider into a “developer of the underlying misinformation” for Section 230 purposes.

Given the unresolved facts at the pleading stage regarding whether Donegan is or is not entitled to Section 230 immunity, the court denied her motion to dismiss. But, the court noted, “CDA immunity may prove to be a gating issue in this case and the Court wishes to avoid an unnecessary expenditure of judicial resources.” Accordingly, the court directed the parties to proceed with “narrowly tailored discovery to address factual issues related to Defendant’s CDA immunity defense,” and invited the parties to move for summary judgment once such discovery is completed. We will be watching this case for further developments.