Defamation, harassment, and intentional infliction of emotional distress suit dismissed on the basis of 47 U.S.C. § 230 applicability to the case at hand. Cases of Interest >  Cyberlaw >  230

Donato v. Moldow

Donato v. Moldow

Donato v. Moldow, 865 A.2d 711 (N.J. Super. App. Div. 2005)

Decided Jan. 31, 2005

This defamation, harassment, and intentional infliction of emotional distress suit was brought in The New Jersey Superior Court’s, Law Division, which granted defendant’s motion to dismiss. Plaintiffs then appealed to The New Jersey Superior Court’s, Law Division, which decided in favor of the Defendant on the basis of 47 U.S.C. § 230 applicability to the comments in question.

The plaintiffs, Vincent Donato and Gina A. Calogero, were elected public officials that were removed from office. The defendant, Stephen Moldow, was the owner of an bulletin board website called “Eye on Emerson” which allowed members to discuss local government activities and officials. Third party members of the site made posts that included personal information of the plaintiffs and comments that the court found “vile and derogatory in their language and tone.” The plaintiffs contend that since Moldow “participated in selective editing, deletion and re-writing of anonymously posted messages” he was entirely responsible for the site’s content, and therefore should be treated as a publisher. If the court agreed with them he would be liable for the third party content on his website.

This case was the first one in which a New Jersey court had applied § 230 in a reported decision. As such it read § 230 to mean that no provider or user of an interactive computer service shall be liable for “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” The court easily found that Moldow was a provider of an interactive computer service. With that in mind the court quickly rejects the plaintiff’s argument that since Moldow controls the “content of the discussion,” that makes him an author of the material and therefore not protected by § 230. It further commented that § 230 “has received a narrow, textual construction, not one that has welcomed creative theories or exhibited judicial creativity.”

The court also concluded that Congress created § 230 with the specific purpose of preventing courts from treating a computer service provider as a publisher. It wanted to keep government interference with speech on the internet to a minimum. Further, it was designed to encourage self-regulation and to remove disincentives for self-regulation, specifically the substantial tort liability of a publisher. The court finds § 230(c)(1) grants Moldow immunity in this case for the content provided by a third party because his activities were those of a publisher in his traditional role of “deciding whether to publish, withdraw, postpone or alter content provided by others.” It views the defendant’s actions as the very conduct Congress intended to protect by enacting § 230.

Finally, the appellants also contend that since they gave Moldow notice that the comments were inflammatory and he did not remove them showed bad faith on his part. The court found that such a claim had no basis. Further, it held that to allow said claim would undermine the purpose of § 230 by forcing the service provider to restrict free speech and abstain from self-regulation. However, the court did mention that the appellants could obtain relief from the parties that made the comments on Moldow’s site if they could produce the necessary evidence to sustain a claim because those parties would be liable for their comments.

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