The two posters of defamatory material were ordered to remove the material from several websites. When they refused, the subjects of the defamation presented the websites with the injunction they received and asked the operators to remove the posts. All but one, ripoffreport, complied. The subjects of the defamatory statements sued ripoffreport on the grounds that the website had violated the injunction. The U.S. District Court for the Northern District of Illinois held it could not compel a third party website to remove defamatory material based on an injunction against a user.
The defamed individuals argued that the hosting contract between ripoffreport and its user led to the conclusion that ripoffreport was “acting in concert” with its users. In order for a third party to be bound by an injunction, the third party must be acting in concert with the subject of the injunction.
The argument that a host’s contract, or simply the provision of services to users, leads to the host’s “acting in concert” or “aiding and abetting” the customer is made frequently. The argument, and variations of it, typically go as follows: user signs a contract with host; user posts material that violates the law; host’s contract prohibits use of their services to violate the law; by continuing to provide services to the user in light of the violation, host is aiding and abetting, or acting in concert, with user; therefore host should be liable. In almost every case in which this argument has been made, courts have refused to accept this argument. Courts typically demand substantially more evidence of actual collusion in order to hold hosts liable for their customer’s bad acts.
In this case, ripoffreport’s terms of service contained a statement that material posted on the site would never be removed, even at the customer’s request, and gave ripoffreport the exclusive right to use customer posts. The defamed parties argued that these statements were sufficient evidence that ripoffreport was acting in concert with its users.
The defamed individuals believed that in light of ripoffreport’s statement in its contract that no material would ever be removed, the contractual requirement that users post only truthful information was unenforceable. The court held that without evidence that ripoffreport actually intended to protect and aid users who posted defamatory material, the terms of the contract, by themselves, did not lead to the conclusion that the website was aiding and abetting its users in their defamatory conduct. The court further held that there was no evidence that ripoffreport was in contact with the users, or otherwise acting in concert with them to avoid application of the injunction.
There are two lessons from this case for hosts. The first is that courts have routinely refused to accept the argument that simply because a host provides services, or has a contract, with someone doesn’t mean that they are liable as a third party for their customer’s actions. Second, is that courts do believe that a host may be liable if evidence is presented that the host did aid and abet the activity. While there is not much case law out there in which a host was found to be liable, good practice is always to communicate things like injunctions to your users and respond in a timely basis to complaints about them. It is not good practice to do nothing and rely only on the CDA or decisions like this.
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