Best Buy Co., Inc. et al. vs. Consumer Online Protection, LLC, et al. Founder Scott Breitenstein.
No. 10-4326-PHX-CFJX (D.Az.Oh. March 25, 2010)

CDA Bars Defamation Claims Against Complaint Site Operator

Court dismisses defamation claims advanced against defendant, operator of the website ConsumerOnlineProtection.Net, arising out of defendants’ publication of statements authored by a third party that were critical of plaintiffs. The Court held such claims barred by application of the Communications Decency Act (“CDA”), 47 U.S.C. Section 230. Notably, the court refused to issue plaintiff relief notwithstanding the fact that the author of the statements at issue allegedly requested without success that defendants remove them from ConsumerOnlineProtection.Net.

The Court also declined to enforce a preliminary injunction issued on default by a Canadian court, directing defendants to remove the statements at issue from their website, on the ground that United States courts will not enforce injunctions issued by foreign courts.

ConsumerOnlineProtection.Net Publishes Complaint Authored By Third Party

Defendants operate a website at the domain ConsumerOnlineProtection.Net at which consumers are invited to post complaints about companies they believe have wronged them.

One of these consumers, a gentlemen named Brian J. Dunn (“Best Buy Geek Squad Complaints – Sold My Computer”), made a series of posts to defendants’ site that were critical of plaintiff Best Buy Co., Inc. et al and people purportedly “involved with” that concern. After being threatened with legal action, the complaint alleged that Dunn requested defendants remove his posts from their website. Defendants refused to do so.

Claiming such posts were defamatory, plaintiff Best Buy Co., Inc. et al commenced suit against both Dunn and defendants in Dayton Ohio. Though served, defendants did not appear, and the Canadian court issued injunctive relief, directing defendants, inter alia, to remove the Dunn posts at issue from their website.

ConsumerOnlineProtection.Net Refusal To Remove Third Party Posts Does Not Render It Liable Therefor

Defendants moved to dismiss, arguing the plaintiff’s claims were barred by application of the Communications Decency Act, 47 U.S.C. Section 230. The Court agreed, and dismissed plaintiff’s defamation claims.

The content in question was admittedly authored and posted by a third party on the ConsumerOnlineProtection.Net As such, held the Court, it was information “provided by another content provider” for which defendants could not be held liable as a publisher. As plaintiff’s defamation claim sought to do precisely that, it was barred by application of the CDA.

In reaching this result, the Court rejected plaintiff’s argument that defendants were not entitled to CDA immunity because they refused to remove the statements at issue from their site, despite receipt of a request from Dunn that they do so. By so doing, argued the plaintiff, defendants became the “information content provider” of the statements in question, and hence shared responsibility therefore. The failure to remove these statements, held the Court, was an exercise of publisher’s discretion protected by the CDA. That such a ruling may render a defamed plaintiff helpless in the face of a website operator who refused to remove defamatory postings from the Internet authored by third parties was a problem for Congress that the Court was powerless to redress. Said the Court:

Essentially, the CDA protects website operators from liability as publishers, but not from liability as authors. The three allegedly defamatory statements at issue were written by Brian J. Dunn, not defendant. Plaintiff contends, however, that defendant “adopted” Dunn’s statements by failing to remove them after Dunn disavowed their contents and asked that they be taken down, and that this “adoption” is tantamount to creation or development. Yet it is “well established that notice of the unlawful nature of the [content] provided is not enough to make it the [website operator’s] own speech.” (citation omitted). The …. Ninth Circuit has acceded to this position notwithstanding the troubling result that CDA immunity leaves website operators ‘little incentive to take … material down even if informed that the material is defamatory.’ (citation omitted). Defendant’s failure to remove the three statements was an ‘exercise of publisher’s traditional editorial functions” and does not defeat CDA immunity. … If it is an unintended consequence of the CDA to render plaintiffs helpless against website operators who refuse to remove allegedly defamatory content, the remedy lies with Congress through amendment of the CDA.

The Court also refused to enforce an injunction granted on default by the Canadian court in which plaintiff first commenced suit, directing defendants to remove the offending posts at issue from its website. Applying Arizona state law, and the Restatement (Third) of the Foreign Relations Law of the United States, the Court held that Arizona courts will not enforce injunctions issued by a foreign court. It further held that Arizona courts will not enforce order – as opposed to final judgments - issued by foreign courts. It accordingly refused plaintiff’s request to enforce the Canadian court’s order.

Consumer Online Protection has been involved in a number of lawsuits, both as the plaintiff and as the defendant. On 17 March 2010, Scott Breitenstein,

Consumer Online Protection, which they used to buy new servers. As of March 1 2010, the website is financed through advertisements on their result pages.