Hilarious defamation, harassment, and intentional infliction of emotional distress suit dismissed on the basis of 47 U.S.C. § 230 and the in applicability of 47 U.S.C. § 223(a)(1)(3) to the present Cases of Interest >  Cyberlaw >  230

Dimeo v. Max

Dimeo v. Max

Dimeo v. Max, 433 F.Supp.2d 523 (E.D.Pa. 2006)

Decided May 26, 2006

This defamation, harassment, and intentional infliction of emotional distress suit was brought in The United States District Court for the Eastern District of Pennsylvania which granted defendant’s motion to dismiss on the basis of 47 U.S.C. § 230 applicability to the comments in question.

The defendant, Tucker Max, describes himself as an aspiring celebrity “drunk” and “asshole” who uses his Web site, www.tuckermax.com, to “share his adventures with the world.” Max is the owner and operator of an internet bulletin board. The Plaintiff, Anthony DiMeo, III, claims to be an heir and co-owner of a large New Jersey blueberry farm. He threw a New Year's Eve party that turned out to be a catastrophe. The plaintiff and his party then became an interesting topic of discussion on Max's Web site. DiMeo sued Max for six postings that he found offensive. The plaintiff also attempted for Max's alleged violation of 47 U.S.C. § 223(a)(1)(3), which is a criminal statute that prohibits anonymously using a telecommunications device to harass someone.

The court found that the posts on Max’s message boards, which are typically laden with vulgarity, fall into three categories: First, a number comment about DiMeo's event. The second group of posts ridicules DiMeo. The third category of posts expresses outright animosity toward DiMeo. An example of this would a message from one poster stating, “This guy is such a tool ... I am amazed he has not been beaten in the street.” The plaintiff does not contend that Max wrote any of the postings himself, but only that “through his Web site publishes defamatory statements aimed at Plaintiff....”

The court sees that Congress enacted § 230 to protect interactive computer service providers from exactly the type of liability the plaintiff wishes it to apply to the defendant. It applies a three element test to determine § 230 immunity: First, the defendant must be a provider or user of an “interactive computer service.” Second, the asserted claims must treat the defendant as a publisher or speaker of information. Third, the challenged communication must be “information provided by another information content provider.” In the light of these elements the court finds that Max’s activity is exactly the thing Congress was intending to protect. It summarily dismissed that portion of the plaintiff’s suit.

The plaintiff’s second claim is based on a criminal statute, § 223(a)(1)(3), which he doesn’t even attempt to show that it provides a private right of action. The court concluded that § 223(a)(1)(3) only applies to a person who uses a telecommunications device “without disclosing one's identity”, but Max's website is called “www.tuckermax.com” and he posts messages in his own name. Also, § 223(a)(1)(c) applies when someone “makes a telephone call or utilizes a telecommunications device.” The court found that Max made no telephone call. Further, Congress emphasized that the term “telecommunications device ... does not include an interactive computer service.” Since Max's Web site is an interactive computer service § 223(a)(1)(3) would not apply to this situation even if it did provide for a private right of action. Therefore, the court dismissed that claim on the grounds of futility.

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