Milo v. Martin

trial court’s and two. The rule issues one affirmed.

order is AFFIRMED. Anthony

Walter MILO Shelton, Appellants, Martin, Guy MARTIN, Sandy Bill Cochran, Jr., and Melvin

Douglas, Appellees. No. 09-09-00145-CV. Texas, Appeals Court of Beaumont. Dec. 2009. Submitted April Decided McKamie, Sr.,

Reginald E. The Law McKamie, Sr., P.C., Reginald Offices of E. Houston, for appellants. Firm,

John Paul Hopkins, Hopkins Law Conroe, for appellees. GAULTNEY, KREGER,

Before HORTON, JJ.

OPINION HORTON,

HOLLIS Justice. We are asked to consider whether the trial court in granting appellees’ erred summary judg- no-evidence motion for ment. We affirm.

Background Plaintiffs, Anthony Walter Milo and Shelton, Martin, Martin, Guy Sandy sued (col- Jr., Cochran, Douglas Bill and Melvin lectively Watchdog”) referred to as “The punitive damages for actual and related to on its Watchdog’s alleged publication The website of several comments Milo and defamatory.1 The Shelton contend were that Milo and Shel- derogatory comments Also, Original Amended Peti- 1. The website that Milo Shelton identified Plaintiffs' First longer alleges petition publically in their avail- that The is both a is no However, (access attempted the defam- able December 2009- newsletter and website. 25, 2010). February Copies pages atory appeared con- statements at issue on taining Watchdog's pre- are Milo and Shelton comments at issue attached to website. Petition, Original summary judgment evidence that Plaintiffs' First Amended sented no pleading Watchdog published about the "live” at the time the trial court statements printed decided the motion. them in its newsletter. complain posted by anony- summary judgment. ton about were Milo and Shelton portion mous2 users to a of the website raise one issue in their appeal: “Whether during titled “Guest Book” October 2006. Decency Communications Act of 1996 answer, filing original After its The Watch- shields from owners of a website a dog consequences filed combined no-evidence and tra- from of posting slanderous ditional judgment. motion for if the website endorses and The Watchdog’s no-evidence motion ar- vouches for the truthfulness and veracity gues that section 230 of the of postings?” Communica- Decency tions Act 1996 a prevents of court Standard of Review treating

from The Watchdog having as published the placed statements on its appeal This requires that we consider parties. See 47 U.S.C.A. the trial court’s application of section 230 (West 2001).3 § Essentially, to Milo’s and Shelton’s claims. Matters of Watchdog’s no-evidence motion asserts statutory construction are on ap- reviewed that there is no evidence that The Watch- peal questions of law under a de novo dog developed created or the false and Shumake, of review. v. standard State at statements issue. (Tex.2006). S.W.3d

Milo and Shelton a summary judg- filed summary judgment mo- claims, response. ment To their tion, relying on section contends that (1) their response included: of affidavit it did not publish the content about which Milo; (2) (3) Shelton;4 a statement from a complain. Milo and Shelton Section copy of a report medical dated October 230(c)(1)provides as follows: 2006, following Milo’s office visit with his publisher Treatment of speaker or (4) physician;5 copy of the deposition of provider No or user of an interactive (5) Martin; Sandy copy the depo- computer shall service[6] be treated as Guy sition of Martin. publisher speaker or any informa

Subsequently, the trial court granted provided by another information The Watchdog’s no-evidence motion for provider. ^[7] 2. The posted by per- provision comments at issue were nent in this case. See 47 U.S.C.A. (West 2001). sons identified § as "Jackie Helm" and "Jew- ell." The evidence does statement, although 4. Shelton's in the form any not contain further information on the affidavit, was not notarized. "Jewell,” identity of either "Jackie Helm” or any proof and it does not contain that “Jackie report 5. The medical diagnosis contains no servants, agents, Helm” or "Jewell” were or accompanied by proper and is not business employees Watchdog. of The Rather than records affidavit. assuming persons named "Jackie Helm” actually posts, or "Jewell” created the and in computer 6. "The term 'interactive service' per- absence of further information that service, system, means information sons named "Jackie Helm” or "Jewell” creat- provides access software or en- posts, opinion ed the posts refers to the computer by multiple ables access users to a having posted by anonymous issue as been server, including specifically a ser- users of the website. system provides vice or access to systems operated Internet and such or ser- statutory See the historical and inconsistent with this section. law, Texas the Under elements of a 230(e)(3). § reviewing 47 After claim for defamation proof include that the 230, application the trial court’s of section defendant: we then determine whether the trial court (1) statement; (2) published a that was Watchdog’s no-evi- properly resolved The (3) defamatory concerning plaintiff; summary judgment. dence motion for malice, acting while with either actual if review a trial court’s decision to We a plaintiff public pub- was official or summary grant a no-evidence motion for figure, lic or negligence, plaintiff if the forth in judgment under standards set individual, was a private regarding the 166a(i) Texas Rule Rules Civil truth of the statement. Procedure. To defeat a no-evidence sum- WFAA-TV, McLemore, 978 motion, the mary judgment non-movant (Tex.1988). statute, By S.W.2d 571 produce summary judgment must libel is defined as follows: genuine that raises a issue of material fact each of the claim that regarding element is expressed A libel is a defamation in challenged by the movant. Tex.R. P. Civ. graphic written or other form that tends 166a(i); Ridgway, Ford Motor Co. 135 memory to blacken the of the dead or (Tex.2004). 598, 600 The non-mov- S.W.3d injure living person’s tends to a ant a material fact genuine raises issue of reputation thereby expose per- by than a of evi- producing “more scintilla hatred, public contempt son to or ridi- challenged dence” that establishes the ele- cule, injury impeach or financial or to Co., ment’s existence. Ford Motor virtue, any person’s honesty, integrity, at 600. than a scintilla of S.W.3d More reputation publish or to the natural the evidence is such evidence exists when anyone thereby expose defects of people that reasonable and fair-minded can hatred, ridicule, person public to at If differ their conclusions. Id. injury. financial “ prove ‘the a vital fact evidence offered Tex. Civ. Prac. & RemCode Ann. 73.001 so weak as to no more than create a is do (Vernon 2005). existence, suspicion mere surmise or of its case, Watchdog’s In this no-evi- the evidence is no more than a scintilla at- effect, judgment dence motion for and, in legal is no evidence.’” Id. Con/Chem, Inc., tacked an element of each of Milo’s and (quoting Kindred v. (Tex.1983)). Shelton’s claims—whether The determining S.W.2d having “published” could be treated as produced whether the non-movant has evidence, than we re- statements issue under Texas law. more a scintilla of ble, part, the creation or the Internet or other interactive in whole or in for 230(f)(3). provided through development service.” 47 U.S.C.A. of information

Here, republishes defamatory matter is alleged defamatory statements wise on The web- appeared internet if subject liability originally as he had Therefore, impacts site.8 section 230 published it. Watchdog “pub- question of whether The (Second) Restatement of Torts

lished” the statements at issue.9 (1977). Section 581 of the Restatement law, person Under Texas who provides the following guidance with re- repeats statement made ini spect merely to those who transmit tially by responsible another can be held defamation: republishing the libelous statement. § 581. Transmission of Defamation Mcllvain, See Jacobs v. 759 S.W.2d Published Third Person 1988),10 (Tex.App.-Houston Dist.] [14th (2), Except as stated subsection (quoting Liberty Lobby, Inc. v. Dow Jones only one who delivers or transmits (D.C.Cir. Co., Inc., & 838 F.2d matter 1988)) (“ published long ‘The common law of libel has if, person subject republishes held that one who a defamato if, only but he knows or has reason own, ry ‘adopts’ statement it as his and is to know of defamatory its character. equal liable measure to the original ”). defamer.’ we newspa While note that One who broadcasts pers periodicals statutory and other have a by matter means of radio or televi- privilege protects against that them libel subject sion is liability to the same claims under certain defined circum an original publisher. as stances, we further observe that The (Second) 581 Restatement of ToRts Watchdog’s no-evidence motion does not (1977). privilege assert a claim of the under Texas Code; Civil Practice and Remedies there date, To we find no case Texas fore, we do not the statutory priv consider addressing whether sections 581 578 and ileges by created Texas statute. See Tex. of the Restatement Second of repre Torts (Ver Civ. Prac. & Rem.Code Ann. 73.002 sent a correct statement of defamation law 2005). non Nevertheless, in Texas. regardless of the Torts, Under the Restatement the status of this state’s defamation law that republishers rule for of defamatory con- applies republishers, to deciding whether tent is stated as follows: to treat an provider’s internet service re Liability Republisher publication of a largely statement is con

Except by as to only those who deliver or trolled section 230—a federal statute published transmit defamation by a “overrides the traditional treatment of person, repeats distributors, third one who publishers, other- speakers un- 8. We reprint choose not to the grounds by comments all of address the other raised persons posted made who to The no-evidence motion for sum- Book,” Watchdog's "Guest as we have as- (in- mary judgment. See P. 47.1 Tex.R.App. purposes sumed for of the structing opinion only that the need address proceeding that the comments at issue were necessary disposition issues to final type both false and and were the appeal). qualify tending of comments that would to injure reputation appellant. of each Supreme 10.The Texas Court reversed this Jacobs, grounds case on other at Mcllvain v. prevail 9. As Milo and Shelton can in this case (Tex.1990). 794 S.W.2d 14 only if there is evidence that The comments, "published” posters' we need statutory der and common law.” Batzel v. sales and rental pertained notices that (9th Cir.2003). Smith, 1018, housing); 333 F.3d Sys., Universal Commc’n Inc., (1st Lycos, 413, 416-22, 478 F.3d Congress’s Section 230 evidences desire Cir.2007) (affirming dismissal of claims protect online intermediaries from against internet service that were liability that for potential providing exists based on defamatory posts by anony- an users access to content created user appeared mous the provider’s on parties. third v. Metros Carafano boards); message Carafano, 339 F.3d at Inc., (9th 339 F.3d plash.com, (finding 1121-25 liability no where website Cir.2003) (“Under scheme, statutory operator failed to review libelous content computer qualifies ‘interactive service’ profiles in user-created to ensure immunity for so it long as does not also content on the website was not defamato- function as an ‘information provid Batzel, ry); 333 F.3d at 1027-28 er’ portion for the of the statement or (“Making computer interactive services issue.”); Batzel, publication at 333 F.3d at and their users liable the speech ... (“Congress policy has chosen for parties severely would restrict reasons to immunize from for de information available on Internet. famatory ‘providers or obscene speech sought Section 230 therefore prevent users of interactive services’ lawsuits from shutting down websites ‘provided’ by when the ... Internet.”); on other services Green else.”). someone (AOL), Am. Online F.3d Although reported we find no Texas (3rd Cir.2003) (holding that AOL not could opinion that has whether section addressed be held liable for an alleged negligent fail- 230 preempts Texas defamation law relat- police ure to pro- its network for content ing involving to situations internet service users); Ezra, Weinstein, by vided its Ben providers provide who access to defamato- Co., Online, Inc., and Inc. v. Am. 206 F.3d ry content, third-party created federal 980, (10th Cir.2000) (“47 984-85 U.S.C. applied broadly courts have section 230 § a immunity any creates federal to addressing operates how the statute to law of state cause action that hold would protect computer interactive from services computer providers service liable for infor- on an injury by suits based caused the originating mation with a third party.”); computer-service provider’s third- making Inc., Online, 327, Zeran v. Am. 129 F.3d party-provided publicly content available (4th Cir.1997) plain (“By language, its on the internet. Horn. Fair Council of § any a federal immunity creates to Roommates.com, Valley San Fernando v. cause of that make action would service (9th LLC, Cir.2008) 1157, 521 F.3d 1167-68 providers originating liable for information (en banc) term (defining “develop- the service.”). third-party with a user the of 230(f)(3) ment” in 47 refer- “as 230, Congress apparently In section made ring merely not to augmenting the content a choice “not to deter harmful online materially contributing but to to generally, im- speech through separate the route of unlawfulness”); Lawyers’ its alleged Chi. posing companies tort on Comm, Law, Rights Civil Under for Zeran, serve as intermediaries!.]” Inc., (7th Craigslist, 519 F.3d 671-72 F.3d Cir.2008) (upholding judgment case, Craigslist con prevented because section 230 this Milo and Shelton being from held liable of that The as an infor “messenger” Watchdog tend acted containing discriminatory provider it posts allegedly mation content because Thus, question the trial Watchdog. accuracy all of of

vouched is, absence of in the If The court decided on its website. found information relationship between proof any legal provider” as a “content Watchdog acted Watchdog, and The anonymous posters Milo’s Shelton’s and under section Watchdog be considered as by not affected section can The still are claims to protection having pro- its extends an “information content by been since definition posts an com- in issue? respect or users of interactive to providers vider” with service, The not an information puter argue but Milo Watch- and Shelton See 47 U.S.C.A. the information provider.” dog can be considered “content still Therefore, 230(c)(1). we question the first page because provider is whether and Shel- first decide Milo must stated: than a more scintilla evi- produced ton The WATCHDOG their that The claim dence to poli- truth about Conroe The unfiltered pro- an information content Watchdog is tax dollars. your tics and state- respect to vider monthly publication is a in issue. ments It website. contains by newsletter totally by facts to be accurate believed Generally, interactive and truthfulness with character sources verify the content of failure service’s Our primary agenda as their attributes. by parties third does not created nothing Our truth and less. it the information content make information obtained sources statements for the false re- absolutely are confidential will party. placed the website a third on main so. Inc., infoUSA, Prickett See (E.D.Tex.2006) (Failing F.Supp.2d “[b]y vouching argue Milo and Shelton accuracy listing provided on verify party for the truthfulness third case “does remove this party Watchdog] contributed [The statements^] 230.”); immunity provided by from the material development to the and [is] Inc., eBay, Cal.App.4th Gentry immune In liability.” [from] therefore not (“The n. Cal.Rptr.2d contrast, Watchdog argues it The that as an eBay is whether acted critical issue the or “had to do with creation nothing provider respect content with information alleged defamatory development of the appellants that claim is to the information form the basis of [Milo’s statements that Thus, misleading.”). The Watch or alleged false and suit. The defamato- Shelton’s] the the verify accuracy to of dog’s failure by anony- ry statements were made in posts in the issue here does information party the third cre- third-party mous not, itself, the the “in Watchdog in make ated, posted the content developedf,] provider” of the defama formation complained of.” about tory statements which Shelton the Even we consider statements when complain. Milo page first of The located on the Watch- website, that is no dog’s we conclude there do not sum- Additionally, we find tending to anony- evidence that the mary judgment prove Watchdog, The whole or Watchdog’s that were The posters mous developed the servants, part, or information employees, or evi- created agents, anonymous posts. the anonymous ob- posters that contained within dence Watchdog’s that The anony- representation The subject matter of the tained the facts believed be total- of The website contains agent from an owner or posts mous ly simply Watchdog accurate is not the same as a The could be considered as hav- all representation ing that of the statements been an information content anywhere respect posts within the website are to the containing found the initial The content in page accurate. Nor does of issue. There is fur- ther no evidence that Watchdog’s Watchdog website constitute a The “de- represen- veloped” posts, tation about the truthfulness of the that term was de- posts Council, by fined Housing Fair that a user could find within F.3d the site’s 1167-68, in which that court Book.” defined “Guest “development” referring merely “as It apparent would have been to the ordi- augmenting the content generally, but to nary Watchdog’s user of The that website materially contributing alleged to its un- provided the “Guest Book” the website’s lawfulness.” opportunities users with for self-expres- person, A sion. reasonable viewing separately We must address whole, as a would be unlikely Milo’s and Shelton’s intentional infliction of assume that The had verified claim, emotional distress as it is arguably accuracy posts in that found not within the reach of the Communica fact, portion of its site. one “Guest Decency tions Act of 1996. See 47 post Book” that is included in 230(c)(2) the record (containing proviso intensely criticized The ac- Watchdog and providers that are not to be held liable for it being spiteful.” cused “mean and faith). voluntarily good actions taken in logical extension of Milo’s and Shelton’s Nevertheless, even if an intentional inflic owner, argument by is that the website’s remedy, claim is available as a a mat allowing the posting, had vouched decide, ter we need not we conclude that accuracy of derogatory made claims produced Milo and Shelton no evidence to The Watchdog. about Given the existence theory claims based on a of inten both posts favorable and unfavorable tional infliction emotional distress. See content, about The Creditwatch, a reason- Jackson, 157 S.W.3d (Tex.2005) able reader of the site would not conclude (noting that “intention posts within “Guest Book” al ‘gap- infliction emotional distress is a necessarily constituted views were filler’ never supplant tort intended to those had been endorsed duplicate existing statutory or common-law Watchdog. remedies.”). Thus, gap even if the were to be filled the tort of intentional infliction posts We the conclude that "within the distress, of emotional such a claim would Book” “Guest are statements that The (1) still require person evidence that a Watchdog’s would readers have attributed (2) intentionally recklessly, acted or the posts’ the Nothing to authors. on the (3) outrageous, conduct was extreme and of pages “Guest Book” the site indicate the the plaintiffs conduct caused emotional that The had Watchdog investigated the (4) distress, and the emotional distress was information posts contained within the on Vento, 749, severe. v. S.W.3d 48 Bradford site, portion that of and the there is noth- (Tex.2001). 758 “Whether a defendant’s to ing indicate that The had outrageous’ conduct is ‘extreme and is a vouched for the of truth of the state- question law.” Id. ments within the “Guest Book” itself. Having summary judgment summary reviewed the judgment response The evidence, summary we conclude there is no Milo and Shelton contains no evidence that judgment tending prove Watchdog intentionally recklessly evidence to that The or 230(e)(3) (“No cause of and See on its site to cause Milo posts

left the brought liability may and no may “Guest action be injured, be that the Shelton to law imposed with be under State local created in faith had been bad Book” section.”). with this in that is inconsistent injure persons an mentioned intent to Instead, apply if to the Texas preferred in Even we only the the evidence posts. providers who common law rule to internet summary judgment that the record shows defamatory material republish provided the in issue remained available posts by parties, Suprema- third the “Guest Book” and created through the because that cy requires of the attorney advised the Martins Clause Constitution Watchdog’s by laws passed a state court follow the posts up, point, to the as at that leave Congress has ex- already Congress Milo had filed suit. when and Shelton preempt to law. pressed to their infliction its intent state respect With intentional Const, 2; VI, claims, English cl. see conclude U.S. art. also emotional distress we Co., 72, 78-79, presented and Hamilton the trial Gen. Elec. U.S. that Milo (stating S.Ct. 110 L.Ed.2d 65 judgment court with no “[p]re-emption fundamentally their claims The Watch- that supporting that intent, respond by question congressional to see request failure to dog’s Co., Pipeline attorney remove Schneidewind v. ANR Milo’s and Shelton’s U.S. 108 S.Ct. 99 L.Ed.2d anonymous posts amounted to extreme (1988), Congress when has made outrageous conduct. and and through explicit statutory its intent known hold, summary, we a matter of one”). language, easy task is an the courts’ law, on page that the statements the first that section does We note our concern Watchdog’s merely aug- of The provide right request not website’s generally; ment the content the state- owner to remove false and materially ments do not contribute to posts placed by a website parties, on third defamatory content on the alleged placed provide injured person and does by anonymous posters. site We fur- remedy with a in the event website’s summary judg- that there no ther hold was promptly owner then fails to remove de- proved ment evidence The Watch- site, from in the famatory posts its least anonymous failure to dog’s remove outrageous absence of extreme and cir- posts extreme outrageous constitutes present that are not In- cumstances here. under the circumstances shown conduct stead, Congress only chose narrow con- record. We exception protect pro- internet service that Milo Shelton failed to clude have potential viders their from appeal demonstrate on the trial court publishing false and granting erred sum- when created par- that content is mary judgment motion. ties when the interactive grave Regardless potential service has not acted as information posts false and can have on Despite our provider. concerns citizens, Congress apparently lives of its breadth, the about section 230’s trial court prevent utilizing states from decided applying did not err in section 230 to ren- impose liability law to on web- state libel summary judgment der this case. they providers republish site when false Therefore, judg- the trial court’s we affirm defamatory content created and devel- ment. oped by parties without the internet involvement. AFFIRMED. provider’s service Justice, GAULTNEY, presented DAVID defendants a traditional concurring. motion for summary judgment based on section 230. A may properly defendant many While section 230 bars causes of file a summary traditional motion for judg- action, every Specifi- claim is barred. ment on an based affirmative defense. See cally, the Act does not bar an intentional Johnson, Randall’s Food Mkts. v. grounded tort claim on a defendant’s al- (Tex.1995). S.W.2d When a trial leged malicious conduct. grants court a final summary judgment Nevertheless, plaintiffs pro- because claims, disposing of all an appellate court legally sup- duced insufficient evidence to “may grounds consider that the trial court claim, port their intentional tort I concur does not rule on in the judicial interest of judg- in the affirmance of the trial court’s economy.” Cincinnati Ins. Co. v. Life ment. The record in this case establishes Cates, (Tex.1996). 927 S.W.2d Al- plaintiffs’ request that the to remove the though the trial court did not rule on the material was not made until after the law- motion, traditional parties address sec- suit was filed. The defendants were then tion their briefs to this Court. relying on the advice of their attor- trial are, Many plaintiffs’ claims as a matter and, in ney, response to the no-evidence law, barred section 230. In the summary judgment, for plain- motion judicial economy, may interest of we con- produced legally tiffs insufficient evidence sider section but not as the basis for their intentional tort claim. ruling on a defendant’s no-evidence The trial court therefore did not err in motion. If only we are to address the no- granting summary judgment. motion, majority evidence as the opinion does, we must simply decide whether Summary Judgment The GROUNDSfor supports plaintiffs’ evidence state law claims, without consideration of the affir- procedural A complicates issue our re- mative of immunity; defense section 230 is ruling. view and The trial order court’s irrelevant to the no-evidence motion. granted summary only on the judgment ground. no-evidence The trial court did support plain- There is some evidence to not rule on defendant’s traditional motion claim, tiffs’ defamation so a no-evidence immunity on based be granted motion could not on that claim. majority opinion under section 230. The The defamation claim is barred under sec- applica- therefore addresses 230 as section 230, however, because the defamation ble to the no-evidence motion for claim publishers treats the defendants as judgment, and concludes the no-evidence provided by third-party. of information properly motion was on granted based sec- We should therefore consider the tradi- I respectfully disagree tion 230. with this judicial tional motion in the interest of approach. Immunity under section 230 is economy directly and rule on the section an affirmative on which the defense defen- 230 issue. burden, dant has the and therefore is an Because section 230 does not bar an

improper ground for a defendant’s no-evi- tort claim ma- alleged intentional based on summary judgment. dence motion for See conduct, 166a(i); question P. licious remains Tex.R. Civ. see also Doe v. GTE (7th Cir.2003) Corp., supports 347 F.3d whether that state (section respect claim. It with to that immunity 230 as affirmative de- law is fense). claim—a claim not barred section 230—

220 library a book See id. at motion for like a or store. that the no-evidenee However, another court subse- 140-41. judgment should be considered. quently rejected argument that an in- Analysis provider simply a distrib- ternet service therefore not liable. utor and See Stratton Congress enacted Communications Oakmont, 323710, *2-3, 1995 1995 WL encourage in removal Decency part Act 229, N.Y. Mise. LEXIS at *6-7. Unlike from websites. objectionable postings of CompuSene, the court Stratton Oak- v. Room- See Fair Hous. Council Prodigy’s voluntary mont reasoned that (9th 1157, mates.com, LLC, F.3d 1175 521 objectionable postings to remove efforts Cir.2008) (en banc). A malicious website the internet meant it treat- from should be encourages anonymous operator who —one newspaper library. more like a than a ed postings intentionally then and unrea- *3, 229, id. at 1995 N.Y. Mise. LEXIS See sonably posting to remove a known refuses efforts, *7. of Prodigy’s at Because easily joins to be deleted— Prodigy publisher court treated like a of a activity in the the Act was intended to third-party’s defamatory statement. See discourage. “The Decen- Communications together id. The two cases viewed created cy Act was not meant to create a lawless providers any a disincentive for to make no-man’s-land on Internet.” Id. removing defamatory effort at material. nothing likely Providers who did were less light The Act should be read in the of (treated distributors) to be held liable as two cases that were before its decided than who faith providers good made efforts enactment, because the Act a response was (treated to remove H.R.Rep. to the law at the time. See No. publishers). (“One 104-458, at (Conf.Rep.) 194 of Congress responded with section 230 of specific purposes of is to [section 230] Decency Act. 47 Communications See overrule oth- [Stratton ] Oakmont (West 2001). § 230 The statute er similar decisions which have treated specific holding addresses and the ra- providers [interactive service] tionale the Stratton Oakmont case publishers speakers and users as stating that they content that is not their own because No or user of an interactive objectionable have restricted access to ma- computer service shall be treated as the terial.”) Oakmont, See Stratton Inc. v. publisher speaker information Co., 323710, Prodigy Sens. 1995 WL provided by another information content N.Y. LEXIS 229 (N.Y.Sup.Ct., May Mise. provider. 1995). In Cubby, CompuSene, Inc., 230(c)(1). (S.D.N.Y.1991), F.Supp. language, along Id. This CompuServe, provider, an internet service provision bars state law “inconsis- section,” successfully argued pub- that it was not a with this essentially tent nullified third-party’s defamatory lisher of a post- holding in Stratton id. Oakmont. See distributor, 230(c)(1),(e)(3).1 ing, but merely rather was "publish- Immunity 1. Some have read the courts word Publisher Under Com- 230(c)(1) 1996?, Decency er” in section to include a "distribu- munications Act 84 Fla. B.J. Online, Inc., (Feb.2010). view, my tor.” See Doe Am. 783 So.2d Doe and Zeran (Fla.2001); Online, 230(c)(1), give Zeran v. Am. over-read section and do not Inc., (4th Cir.1997); weight 129 F.3d see sufficient to the distinction between (in sense) Morley, "publisher” Samuel J. Article: How Broad Is Web a narrow and "distrib- 230(c)(2)(A) terms, 230(c)(2)(A) By language pro- of section its section “good tects an action taken in excepts bad faith conduct from faith”—that the Act is, 230(c)(2)(A) provider with an absence of malice. A immunity. provides: Section maliciously, that acts and that would be or liability. provider No user Civil law, civilly held liable under state does not shall be an interactive service enjoy federal immunity under section held liable on account of— 230(c)(2)(A). The Act would not confer (A) voluntarily taken in any action immunity on a provider maliciously who to restrict access to or avail- good faith the “not” in deleted the statement “she is ability provider that the or material not a thief.” generally See Room- obscene, lewd, user considers to be las- mates, com, 521 F.3d at 1169 (applying sec- violent, civious, filthy, excessively ha- 230(c)(1)) (“[A] operator who rassing, objectionable, or otherwise edits in a manner that contributes to the whether or not constitu- such is alleged illegality byas removing the —such tionally protected!.] word “not” from a user’s message reading 230(c)(2)(A) added). (emphasis Id. did not steal the artwork’ in order ‘[Name] provision rejects ap- This the rationale to transform an innocent message into a plied in the Stratton case. The Oakmont directly libelous one—is in involved essentially encourages provider Act a immune.”). alleged illegality and thus not like to elimi- position Prodigy that of Similarly, a malicious inten- who defamatory objectiona- nate or otherwise tionally unreasonably and chooses not to material, liability ble and civil precludes deleted, easily remove material that can be (successful provider’s good for a faith defamatory, and is known to be unsuccessful) attempt to restrict access. liability should not be immune from civil 230(c)(2)(A). under section The statute 230(c)(2)(A) The word “action” in section expressly provides “[n]othing in this faith, necessarily good includes a but un- shall prevent any section be construed to defamatory successful effort to delete enforcing any State from State law that is Otherwise, objectionable other material. consistent with this section.” 47 U.S.C.A. immunity would be for a granted good 230(e)(3) (West 2001). A Texas law non- faith, successful deletion publisher claim based on malicious conduct material, yet granted good for a may consistently therefore be asserted faith, but unsuccessful effort to delete oth- with section 230. Essentially, er material. permit pleaded would the rationale of Stratton Plaintiffs an intentional inflic 230(c)(2)(A), my to survive in section tion of emotional distress claim. Oakmont n view, arguably permit operator civil to be if a malicious website inten tionally imposed provider attempts good unreasonably when refuses delete anonymous obviously ma- objectionable third-party’s faith to restrict access to de terial, statement, famatory result would seem a claim based on an but fails. That contrary to the of section 230. tort in the purpose may intentional be asserted apparently pro- appropriate against op The Act was intended to circumstances protection provider’s good specific vide for the erator under Texas law. case, in this voluntary faith effort to remove a third- claim assert howev plaintiffs er, very remedy. See Tiller v. party’s defamatory statement. narrow Act, the inform a court's in the Stratton Oakmont case. in the case should utor” described language reading inspired used of the Act. Because that case (Tex. McLure, may that described in the Restatement 713-15 S.W.3d 2003) (elements preclude exceptional “gap-filler” type of claim for intentional distress). remedy plaintiffs gener- assert here. See infliction of emotional Creditwatch, Inc., ally 157 S.W.3d at 816 remedy plaintiffs The narrow tort assert (“[Ijntentional of emotional infliction dis- available, may simply not be because the tress is a ‘gap-filler’ tort never intended to in remedy “gap-filler” is considered a Tex supplant duplicate existing statutory availability remedy as and the of another remedies.”). common-law Creditwatch, gap “leaves no to fill.” See The record demonstrates another —and (Tex. Jackson, 157 S.W.3d in this dispositive case on the —restriction 2005). may Other remedies exist under plaintiffs narrow claim assert in this case. circumstances, Texas law. certain Under plaintiffs pleaded a cause of action for for example, property may owner be held distress; intentional infliction of emotional prop liable for material on his although the claim is not barred section erty injures persons outside of the (because Act), it is consistent with the property. See Restatement (Second) plaintiffs required were nevertheless to 364(c) (1977). (1965); § p 577 cmt. ToRts present support evidence to that claim in The Restatement explains the basis of civil response to defendants’ no-evidence mo- liability property of a under appro owner summary judgment. plaintiff tion for If a priate circumstances as follows: proves that a engaged website owner in duty basis of the is his “extreme and outrageous conduct” that permit use his land or chattels proximately plaintiffs caused severe emo- purpose for a damaging to others out- distress, tional and that no alternative Something side of the land. of an analo- remedy for the severe emotional distress gy may be in ... duty found to use exists, the website owner could be held remedy reasonable care to a condition liable damages under Texas law for the he upon the defendant’s land created (elements generally causes. See id. another, which involves unreasonable claim for intentional infliction of emotional danger to those outside of the land. distress). To establish an intentional inflic- 577 cmt. (Second) Restatement of ToRts tion of emotional distress claim Tex- under p. The Comment that liability makes clear law, however, plaintiff as must show the imposed property only on the owner for defendant’s conduct was ‘“so outrageous an intentional and unreasonable failure to character, and so in degree, extreme as may easily remove material be re- go beyond possible all bounds of decen- moved, and that is known to be defamato- atrocious, cy, regarded and to be ry. See id. may There be circumstances utterly intolerable a civilized communi- ” under which the nothing need do Tiller, ty.’ See at 713 (quoting S.W.3d to remove third-party’s defamatory 46 cmt. (Second) Restatement of Torts statement; property owner need not (1965)). moving d summary judg- “steps take that are unreasonable if the ment, plaintiffs defendants asserted had no burden of the outweighs measures evidence to their claim for inten- harm plaintiff.” to the Id. But because the tional infliction of emotional distress. liability of a operator for intention- Plaintiffs responded that the defendants injures al action that may another be failed to remove known mate- on, by, based and also opera- limited rial after plaintiffs requested the state- material, tor’s control over the website the ments be taken down. Plaintiffs did not availability in Texas of a tort claim like make request their removal until after the filed, In response plaintiffs was however. Because lawsuit offered no legally suf- motion, plaintiffs presented deposi- ficient evidence to intentional testimony of one the defendants tort claim not otherwise barred section that, acknowledging upon the advice of his 230, the trial court did err in granting attorney, he “retracted trial had not summary judgment. I Although cannot than reliance those Other statements[J” join majority I opinion, concur in this advice, lawyer’s spe- trial no other on the affirmance judgment. Court’s presented explaining cific was for the failure to promptly reason remove Even a court statements. should ad- disagreement

mit soundness advice, counsel’s reliance on trial advice, more, by itself and without seems unlikely to be labeled “extreme and outra- conduct.

geous” notes vices offered libraries or educational insti- ("1996 Amendments”) to 47 U.S.C.A. 609 230(f)(2). tutions.” 47 U.S.C.A. (West 2001), for a list of the refer- sections enced Decency as the provider' "Communications Act 7. "The term ‘information content perti- any person entity 1996.” Section 230 of the Act responsi- is means that is 230(e)(3) 230(c)(1). view the in the light Section most favor- non-movant, as follows: provides able to the and we give credit if jurors such evidence reasonable law could State disregard contrary evidence unless Nothing in this section shall be con- jurors reasonable could not. See Mack any State from enforc- prevent strued to Trucks, Tamez, Inc. 206 S.W.3d law that is consistent with ing State (Tex.2006). may this section. No cause of action be brought liability may imposed and no be any State or local law that under Analysis

Case Details

Case Name: Milo v. Martin

Court Name: Court of Appeals of Texas

Date Published: Apr 29, 2010

Citation: 311 S.W.3d 210

Docket Number: 09-09-00145-CV

Court Abbreviation: Tex. App.