The court of appeals in Beaumont affirmed a dismissal of the all-too-typical online defamation case last week . Plaintiffs Walter Milo and Anthony Shelton sued the Watchdog website because of something put on the site by anonymous posters in the “Guest Book” portion of the site. Plaintiffs also sued for intentional infliction of emotional distress.

The plaintiffs appealed on the limited question: “Whether the Communications Decency Act of 1996 shields from liability owners of a website from consequences of posting slanderous material if the website endorses and vouches for the truthfulness and veracity of the postings?” To answer, the court of appeals needed to determine whether Watchdog somehow became the “publisher” of the allegedly defamatory content.

The court first reiterated the oft-cited rule: a website operator’s failure to verify the content of material created by third parties does not make it the information content provider for the false or defamatory statements placed on the website by a third party. The plaintiffs relied upon a statement on the Watchdog website in their effort to transform the site to a content provider. The statement said:

“The unfiltered truth about Conroe politics and your tax dollars. . . . The Watchdog is a monthly publication by newsletter and website. It contains facts believed to be totally accurate by sources with character and truthfulness as their primary attributes. Our agenda is the truth and nothing less. Our sources and any information obtained are absolutely confidential and will remain so.”

The majority of the court ruled: “[t]he representation that The Watchdog’s website contains facts believed to be totally accurate is simply not the same as a representation that all of the statements found anywhere within the website are accurate.” The defamation claim was therefore dismissed.

The court could have also used Section 230 to dismiss the intentional infliction of emotional distress claim. Professor Goldman, in his post here, cites to the authority for that proposition. Instead, the court found the evidence did not support the claim because refusing to remove content is not “extreme and outrageous conduct” as a matter of law necessary for such a claim. This ruling may leave the door open under Texas state case law to supplement an otherwise immune defamation claim with an intentional infliction of emotional distress claim, especially in light of stronger language implying as much from the concurring opinion.

The Court then pointed out its dissatisfaction with Section 230 writing:

“We note our concern that section 230 does not provide a right to request a website’s owner to remove false and defamatory posts placed on a website by third parties, and does not provide the injured person with a remedy in the event the website’s owner then fails to promptly remove defamatory posts from its site, at least in the absence of extreme and outrageous circumstances that are not present here. Instead, Congress chose with only narrow exception to protect internet service providers from their potential liability for publishing false and defamatory content when that content is created by third parties and when the interactive computer service has not acted as an information content provider. Despite our concerns about section 230’s breadth, the trial court did not err in applying section 230 to render summary judgment in this case.”

The concurring opinion showed a little more distaste for Section 230 and argued the CDA was created to encourage website operators to take down offensive conduct rather than leaving it up because the Act was designed to shield website operators who exercised discretion in good faith to remove offending material.

The concurring opinion then suggests “a malicious provider who intentionally and unreasonably chooses not to remove material that can easily be deleted, and that is known to be defamatory, should not be immune from civil liability under section 230(c)(2)(A)” because the act allows for state claims for malicious conduct to go forward. “A Texas law non-publisher claim based on malicious conduct therefore may be asserted consistently with section 230.” Essentially, the concurring opinion held the intentional infliction of emotional distress claim could have continued had the plaintiff asked for removal of the offending material before he filed suit. Because the website operator refused to do so on advice of counsel, the website operator did not do refuse to do maliciously and intentionally.

If a victim of online defamation can keep a case in state as opposed to federal court in Texas, this case opens the door to a possible intentional infliction of emotion distress claim. I don’t think we would have seen the same result if this very same case was in federal court which would have likely dismissed all of the claims at the outset of the case on Section 230 grounds. Although the website operator won, the appellate record indicates they had extensive discovery, a summary judgment fight and now the costs of the appeal. I always thought the CDA was enacted to prevent website operators from having to incur these costs when the claims is based solely on content provided by others.

Milo v. Martin, 2010 WL 1708895 (Tex.App.-Beaumont April 29, 2010)