Friday, April 29, 2011

Defamation, the Communications Decency Act and the “Blog”

This post deals with a recent ruling in a civil suit that has so far produced 18 district court opinions that are available on Westlaw (and probably also on Lexis). The case is Jan E. Kruska v. Perverted Justice Foundation, and the opinion we’re going to examine issued on April 5 of this year. Kruska v. Perverted Justice Foundation, Inc., 2011 WL 1260224 (U.S. District Court for the District of Arizona 2011) (hereinafter, Kruska v. PJFI”).

This opinion doesn’t even attempt to summarize how the case arose or where it currently stands, so I’m going to use the background provided by the Citizen Media Law Project, which I assume is accurate:

Jan Kruska sued several anti-pedophile organizations, including Perverted Justice Foundation, Inc. (`PJFI’), and individuals associated with those organizations, as well as domain registrar and . . ., after the organizations accused Kruska of being a predator, a pedophile, and pro-pedophile on various websites. . . . Kruska sued for defamation [and other civil causes of action] in Arizona federal court.

In August 2007, self-described journalist Kruska began to receive what she described as `venomous’ emails after she criticized the overbreadth of anti-pedophile laws. Soon after, the Absolute Zero United blog and PJFI’s Wikisposure and Corporate Sex Offender websites posted accusations that Kruska was a convicted child molester and a pedophile, according to the complaint. . . . Some of the websites also allegedly posted personal information about Kruska, including her address, and photographs of Kruska that she says are copyrighted. . . .

Kruska filed her complaint in January 2008. It sought damages and a preliminary injunction, barring the defendants from `disseminating claims that [she] is a “Predator”, “Child Molester”, “Child Abuser”, “Pedophile”, and “Pro-Pedophile” by postings on the internet, mass mailings, e-mails to friends, relatives, employers, business associates, among others; or otherwise by any other means making such suggestions.’

Kruska v. Perverted Justice Foundation. If you want more details about this litigation, check out the Citizen Media Law Project entry on the case.

In the opinion we’re concerned with, the federal judge who has this case is ruling on one of the defendants’ motion for summary judgment. As Wikipedia explains, in U.S. law,

summary judgment can be awarded by the court prior to trial, effectively holding that no trial will be necessary. Issuance of summary judgment can be based only upon the court's finding that: (1) there are no issues of `material’ fact requiring a trial for their resolution, and (2) in applying the law to the undisputed facts, one party is clearly entitled to judgment.

The summary judgment motion we’re concerned with was filed by defendant Christopher Brocious who, in 2006, “registered and provided design services for a blog called (the `Blog’), whose contributors billed themselves as `[a] community of individuals pledged to fight paedophiles on the web.’” Kruska v. PJFI, supra.

[Kruska] contends that [Brocious] also acted as contributor, owner, copyright holder, and moderator of the Blog. [Brocious] asserts that he never acted as owner, copyright holder, or moderator of the Blog, but acknowledges that he has contributed to the Blog.

Kruska v. PJFI, supra. In her complaint, Kruska alleged that Brocious “was responsible for comments made online, including on the Blog, that constituted” defamation, among other things. Kruska v. PJFI, supra. (The court describes the defamation claim as Kruska’s “last remaining cause of action” against Brocious, the others apparently having been disposed of in rulings on earlier motions.) Kruska’s defamation claim “pertained” to whether Brocious was

responsible for the allegedly defamatory statement that [she] `starved a child.’ [Brocious] contends

both that he made no such statement and that he is immune to [Kruska’s] claims under the Communications Decency Act, § 230. [Kruska] contests [his] assertions, but acknowledges that she does not know who stated that `Plaintiff starved a child’ -- which she alleges appeared in the comments section of the Blog -- and does not produce any evidence that such a statement was ever made.

[Kruska] alleges that `[o]nly via discovery can we ascertain the true identity of the individual who made the false allegation that `Plaintiff starved a child’ as whoever made this statement did so under a screen name’ in the comments section of the Blog. [She] further asserts that, regardless of who made the alleged statement, [Brocious] as the alleged owner and moderator of the Blog `would have had to have viewed the comment and ma[d]e the conscious decision to allow the comment to be published.’

Kruska v. PJFI, supra.

The district court judge began his ruling on Brocious’ motion for summary judgment and Kruska’s arguments in opposition by noting the standard quoted above, i.e., summary judgment is only appropriate if there are no genuine issues of material fact and one party is clearly entitled to judgment based on the undisputed facts. Kruska v. PJFI, supra. He also noted that under Arizona law (which applied, since Kruska’s defamation claim was a state law claim), “`[s]omeone who publishes a . . . defamatory communication about a private person is subject to liability if that person "`”(a) knows the statement is false and it defames the other, (b) acts in reckless disregard of these matters, or (c) acts negligently in failing to ascertain them.”’” Kruska v. PJFI, supra (quoting Dube v. Likins, 216 Ariz. 406, 167 P.3d 93 (Arizona Court of Appeals 2007)). (If you’re wondering how Kruska could bring an Arizona state law defamation claim in federal court, check out this entry on diversity jurisdiction.)

The judge found Kruska’s defamation claim could not “survive” because she failed make any showing sufficient to establish an essential element of her claim, i.e., that “anyone ever asserted that [she] `starved a child.’” Kruska v. PJFI, supra. He noted that even if the alleged statement was made,

[Kruska’s] claim fails. First, [she] has provided no evidence that [Brocious] stated that [she] starved a child, and acknowledges she is unsure who might have made that comment. Second, [Kruska] argues [Brocious] is liable for defamation because as the alleged owner and moderator of the Blog, [he] would have had to approve the comment by taking affirmative steps to publish it. However, [Kruska] again offers no evidence that publishing the alleged statement on the Blog would require any affirmative steps by a moderator, other than a conclusory statement that the statement `had to be viewed an[d] approved before being published.’

Third, although [Kruska] demonstrates [Brocious] was a contributor to and perhaps the driving force behind the Blog, [she] offers no evidence that [he] ever saw or approved the alleged comment that [she] `starved a child.’ [Brocious] cannot “`(a) know[ ] the statement is false and it defames the other, (b) act[ ] in reckless disregard of these matters, or (c) act[ ] negligently in failing to ascertain them”’ when no evidence indicates that [he] knew about the statement in the first place. . . . For all of these reasons, and because a main objective of summary judgment is `to isolate and dispose of factually unsupported claims such as [Kruska’s] the Court will grant summary judgment on [her] defamation claim. [citing Celotex Corp. v. Catrett, 477 U.S. 317 (1986)].

Kruska v. PJFI, supra.

Brocious’ motion for summary judgment also argued that Kruska’s claim against him was barred by 47 U.S. Code § 230, which is part of the Communications Decency Act (CDA). Kruska v. PJFI, supra. Section 230(c)(1) of Title 47 of the U.S. Code states that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” As the Kruska judge noted, “Congress, by enacting the CDA, `granted most Internet services immunity from liability for publishing . . . defamatory material so long as the information was provided by another party.’” Kruska v. PJFI, supra (quoting Carafano v., 339 F.3d 1119 (U.S. Court of Appeals for the 9th Circuit 2003)).

The judge noted that “[k]ey in determining whether § 230 immunity applies is the extent of the interactive computer service provider's participation in the content at issue.” Kruska v. PJFI, supra. He explained that the 9th Circuit Court of Appeals held “that an online newsletter was an `interactive computer service’ but that its administrator was not an `information content provide’” of a third-party's allegedly defamatory e-mail message even though the administrator selected, lightly edited, and published its contents.” Kruska v. PJFI, supra (citing Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003)).

Brocious argued that he was immune from suit under § 230 because “`[Kruska] plainly cannot show [he] was involved in any of the activities that might otherwise give rise to liability for defamation.’” Kruska v. PJFI, supra. Kruska argued that Brocious was not immune “`because § 230 not immunize the actual creator of the content, whether he is a blogger, commenter, or anything else.’” Kruska v. PJFI, supra. The judge agreed with Brocious:

The Court finds [Brocious] is immune from suit under § 230 because at most, [Kruska] sets forth the possibility that [he], as the alleged publisher of the Blog, `viewed an[d] approved [the comment] before [it was] published. Such alleged passive participation would be akin to the alleged conduct in Batzel, where the Ninth Circuit held that § 230 immunity applied to a website administrator who selected, edited, and published the contents of an allegedly defamatory comment. . . .

Even if [Kruska’s] assertion that [Brocious] took active steps to publish the alleged comment on the Blog was true, such steps are not the type of material contribution to the alleged misconduct that the Ninth Circuit found in Fair Housing Council v., LLC, 521 F.3d 1157 (2009). Therefore, the Court finds that, as an additional ground for summary judgment on [Kruska’s] defamation claim, [Brocious] is immune from suit under § 230.

Kruska v. PJFI, supra.

The judge therefore granted summary judgment for Brocious, which ends Kruska’s defamation suit against him. Kruska v. PJFI, supra.

And no, I have no idea what, if any, claims are still pending against other defendants in the original suit. You’d have to check the Citizen Media Law Project entry to get an idea of where the case stands. It has updates and copies of many of the orders entered in the case.

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