Lead Opinion
OPINION
We are asked to consider whether the trial court erred in granting the appellees’ no-evidence motion for summary judgment. We affirm.
Background
Plaintiffs, Walter Milo and Anthony Shelton, sued Guy Martin, Sandy Martin, Bill Cochran, Jr., and Melvin Douglas (collectively referred to as “The Watchdog”) for actual and punitive damages related to The Watchdog’s alleged publication on its website of several comments that Milo and Shelton contend were defamatory.
Milo and Shelton filed a summary judgment response. To support their claims, their response included: (1) the affidavit of Milo; (2) a statement from Shelton;
Subsequently, the trial court granted The Watchdog’s no-evidence motion for summary judgment. Milo and Shelton raise one issue in their appeal: “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?”
Standard of Review
This appeal requires that we consider the trial court’s application of section 230 to Milo’s and Shelton’s claims. Matters of statutory construction are reviewed on appeal as questions of law under a de novo standard of review. State v. Shumake,
The Watchdog’s summary judgment motion, relying on section 230, contends that it did not publish the content about which Milo and Shelton complain. Section 230(c)(1) provides as follows:
Treatment of publisher or speaker
No provider or user of an interactive computer service[6] shall be treated as the publisher or speaker of any information provided by another information content provider.[7]
(3) State law
Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.
47 U.S.C.A. § 230(e)(3). After reviewing the trial court’s application of section 230, we then determine whether the trial court properly resolved The Watchdog’s no-evidence motion for summary judgment.
We review a trial court’s decision to grant a no-evidence motion for summary judgment under the standards set forth in Rule 166a(i) of the Texas Rules of Civil Procedure. To defeat a no-evidence summary judgment motion, the non-movant must produce summary judgment evidence that raises a genuine issue of material fact regarding each element of the claim that is challenged by the movant. Tex.R. Civ. P. 166a(i); Ford Motor Co. v. Ridgway,
Analysis
Under Texas law, the elements of a claim for defamation include proof that the defendant:
(1) published a statement; (2) that was defamatory concerning the plaintiff; (3) while acting with either actual malice, if the plaintiff was a public official or public figure, or negligence, if the plaintiff was a private individual, regarding the truth of the statement.
WFAA-TV, Inc. v. McLemore,
A libel is a defamation expressed in written or other graphic form that tends to blacken the memory of the dead or that tends to injure a living person’s reputation and thereby expose the person to public hatred, contempt or ridicule, or financial injury or to impeach any person’s honesty, integrity, virtue, or reputation or to publish the natural defects of anyone and thereby expose the person to public hatred, ridicule, or financial injury.
Tex. Civ. Prac. & RemCode Ann. § 73.001 (Vernon 2005).
In this case, The Watchdog’s no-evidence motion for summary judgment attacked an element of each of Milo’s and Shelton’s claims — whether The Watchdog could be treated as having “published” the statements at issue under Texas law.
Under Texas law, a person who repeats a defamatory statement made initially by another can be held responsible for republishing the libelous statement. See Jacobs v. Mcllvain,
Under the Restatement of Torts, the rule for republishers of defamatory content is stated as follows:
§ 578. Liability of Republisher Except as to those who only deliver or transmit defamation published by a third person, one who repeats or otherwise republishes defamatory matter is subject to liability as if he had originally published it.
Restatement (Second) of Torts § 578 (1977). Section 581 of the Restatement provides the following guidance with respect to those who merely transmit the defamation:
§ 581. Transmission of Defamation Published by Third Person
(1) Except as stated in subsection (2), one who only delivers or transmits defamatory matter published by a third person is subject to liability if, but only if, he knows or has reason to know of its defamatory character.
(2) One who broadcasts defamatory matter by means of radio or television is subject to the same liability as an original publisher.
Restatement (Second) of ToRts § 581 (1977).
To date, we find no Texas case addressing whether sections 578 and 581 of the Restatement Second of Torts represent a correct statement of defamation law in Texas. Nevertheless, regardless of the status of this state’s defamation law that applies to republishers, deciding whether to treat an internet service provider’s republication of a statement is largely controlled by section 230 — a federal statute that “overrides the traditional treatment of publishers, distributors, and speakers un
Section 230 evidences Congress’s desire to protect online intermediaries from the potential liability that exists for providing users with access to content created by third parties. Carafano v. Metrosplash.com, Inc.,
Although we find no reported Texas opinion that has addressed whether section 230 preempts Texas defamation law relating to situations involving internet service providers who provide access to defamatory third-party created content, federal courts have applied section 230 broadly in addressing how the statute operates to protect interactive computer services from suits based on an injury caused by the computer-service provider’s making third-party-provided content publicly available on the internet. Fair Horn. Council of San Fernando Valley v. Roommates.com, LLC,
In this case, Milo and Shelton contend that The Watchdog acted as an information content provider because it
Generally, an interactive computer service’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. See Prickett v. infoUSA, Inc.,
Additionally, we do not find any summary judgment evidence that the anonymous posters were The Watchdog’s agents, servants, or employees, or any evidence that the anonymous posters obtained the subject matter of the anonymous posts from an owner or agent of The Watchdog. Thus, the question the trial court decided is, in the absence of any proof of any legal relationship between the anonymous posters and The Watchdog, can The Watchdog still be considered as having been an “information content provider” with respect to the posts in issue? Milo and Shelton argue that The Watchdog can still be considered the information content provider because the first page of The Watchdog’s website stated:
The WATCHDOG
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.
Milo and Shelton argue that “[b]y vouching for the truthfulness of the third party statements^] [The Watchdog] contributed to the development of the material and [is] therefore not immune [from] liability.” In contrast, The Watchdog argues that it “had nothing to do with the creation or development of the alleged defamatory statements that form the basis of [Milo’s and Shelton’s] suit. The alleged defamatory statements were made by an anonymous third-party and the third party created, developedf,] and posted the content complained of.”
Even when we consider the statements located on the first page of The Watchdog’s website, we conclude that there is no summary judgment evidence tending to prove that The Watchdog, in whole or in part, created or developed the information contained within the anonymous posts. The representation that The Watchdog’s website contains facts believed to be total
It would have been apparent to the ordinary user of The Watchdog’s website that the “Guest Book” provided the website’s users with opportunities for self-expression. A reasonable person, viewing the website as a whole, would be unlikely to assume that The Watchdog had verified the accuracy of the posts found in that portion of its site. In fact, one “Guest Book” post that is included in the record intensely criticized The Watchdog and accused it of being “mean and spiteful.” The logical extension of Milo’s and Shelton’s argument is that the website’s owner, by allowing the posting, had vouched for the accuracy of the derogatory claims made about The Watchdog. Given the existence of both favorable and unfavorable posts about The Watchdog’s content, a reasonable reader of the site would not conclude that the posts within the “Guest Book” constituted views that were necessarily those that had been endorsed by The Watchdog.
We conclude that the posts "within the “Guest Book” are statements that The Watchdog’s readers would have attributed to the posts’ authors. Nothing on the “Guest Book” pages of the site indicate that The Watchdog had investigated the information contained within the posts on that portion of the site, and there is nothing to indicate that The Watchdog had vouched for the truth of any of the statements within the “Guest Book” itself. Having reviewed the summary judgment evidence, we conclude there is no summary judgment evidence tending to prove that The Watchdog could be considered as having been an information content provider with respect to the posts containing the defamatory content in issue. There is further no evidence that The Watchdog “developed” the posts, as that term was defined by Fair Housing Council,
We must address separately Milo’s and Shelton’s intentional infliction of emotional distress claim, as it is arguably not within the reach of the Communications Decency Act of 1996. See 47 U.S.C.A. § 230(c)(2) (containing proviso that providers are not to be held liable for actions voluntarily taken in good faith). Nevertheless, even if an intentional infliction claim is available as a remedy, a matter we need not decide, we conclude that Milo and Shelton produced no evidence to support claims based on a theory of intentional infliction of emotional distress. See Creditwatch, Inc. v. Jackson,
The summary judgment response of Milo and Shelton contains no evidence that The Watchdog intentionally or recklessly
In summary, we hold, as a matter of law, that the statements on the first page of The Watchdog’s website merely augment the content generally; the statements do not materially contribute to the alleged defamatory content placed on the site by the anonymous posters. We further hold that there was no summary judgment evidence that proved The Watchdog’s failure to remove the anonymous posts constitutes extreme and outrageous conduct under the circumstances shown in the summary judgment record. We conclude that Milo and Shelton have failed to demonstrate on appeal that the trial court erred by granting The Watchdog’s summary judgment motion.
Regardless of the grave potential that false and defamatory posts can have on the lives of its citizens, Congress apparently decided to prevent states from utilizing state libel law to impose liability on website providers when they republish false and defamatory content created and developed by third parties without the internet service provider’s material involvement.
See 47 U.S.C.A. § 230(e)(3) (“No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”). Even if we preferred to apply the Texas common law rule to internet providers who republish defamatory material provided and created by third parties, the Supremacy Clause of the Constitution requires that a state court follow the laws passed by Congress when the Congress has expressed its intent to preempt state law. U.S. Const, art. VI, cl. 2; see also English v. Gen. Elec. Co.,
AFFIRMED.
Notes
. The website that Milo and Shelton identified in their petition is no longer publically available (access attempted December 3, 2009-February 25, 2010). Copies of the pages containing the comments at issue are attached to Plaintiffs' First Amended Original Petition, the "live” pleading at the time the trial court decided the summary judgment motion. Also, Plaintiffs' First Amended Original Petition alleges that The Watchdog is both a newsletter and website. However, the defamatory statements at issue appeared on The Watchdog's website. Milo and Shelton presented no summary judgment evidence that The Watchdog published statements about them in its printed newsletter.
. The comments at issue were posted by persons identified as "Jackie Helm" and "Jewell." The summary judgment evidence does not contain any further information on the identity of either "Jackie Helm” or "Jewell,” and it does not contain any proof that “Jackie Helm” or "Jewell” were agents, servants, or employees of The Watchdog. Rather than assuming that persons named "Jackie Helm” or "Jewell” actually created the posts, and in the absence of further information that persons named "Jackie Helm” or "Jewell” created the posts, the opinion refers to the posts at issue as having been posted by anonymous users of the website.
. See the historical and statutory notes ("1996 Amendments”) to 47 U.S.C.A. § 609 (West 2001), for a list of the sections referenced as the "Communications Decency Act of 1996.” Section 230 of the Act is the pertinent provision in this case. See 47 U.S.C.A. § 230 (West 2001).
. Shelton's statement, although in the form of an affidavit, was not notarized.
. The medical report contains no diagnosis and is not accompanied by a proper business records affidavit.
6. "The term 'interactive computer service' means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.” 47 U.S.C.A. § 230(f)(2).
7. "The term ‘information content provider' means any person or entity that is responsi
. We choose not to reprint the comments made by the persons who posted to The Watchdog's "Guest Book,” as we have assumed for purposes of the summary judgment proceeding that the comments at issue were both false and defamatory and were the type of comments that would qualify as tending to injure the reputation of each appellant.
. As Milo and Shelton can prevail in this case only if there is evidence that The Watchdog "published” the posters' comments, we need not address all of the other grounds raised by The Watchdog’s no-evidence motion for summary judgment. See Tex.R.App. P. 47.1 (instructing that the opinion need only address issues necessary to final disposition of the appeal).
.The Texas Supreme Court reversed this case on other grounds at Mcllvain v. Jacobs,
Concurrence Opinion
concurring.
While section 230 bars many causes of action, not every claim is barred. Specifically, the Act does not bar an intentional tort claim grounded on a defendant’s alleged malicious conduct.
Nevertheless, because the plaintiffs produced legally insufficient evidence to support their intentional tort claim, I concur in the affirmance of the trial court’s judgment. The record in this case establishes that the plaintiffs’ request to remove the material was not made until after the lawsuit was filed. The defendants were then relying on the advice of their trial attorney, and, in response to the no-evidence motion for summary judgment, the plaintiffs produced legally insufficient evidence to support their intentional tort claim. The trial court therefore did not err in granting summary judgment.
The GROUNDS for Summary Judgment
A procedural issue complicates our review and ruling. The trial court’s order granted summary judgment only on the no-evidence ground. The trial court did not rule on defendant’s traditional motion for summary judgment based on immunity under section 230. The majority opinion therefore addresses section 230 as applicable to the no-evidence motion for summary judgment, and concludes the no-evidence motion was properly granted based on section 230. I respectfully disagree with this approach. Immunity under section 230 is an affirmative defense on which the defendant has the burden, and therefore is an improper ground for a defendant’s no-evidence motion for summary judgment. See Tex.R. Civ. P. 166a(i); see also Doe v. GTE Corp.,
The defendants presented a traditional motion for summary judgment based on section 230. A defendant may properly file a traditional motion for summary judgment based on an affirmative defense. See Randall’s Food Mkts. v. Johnson,
There is some evidence to support plaintiffs’ defamation claim, so a no-evidence motion could not be granted on that claim. The defamation claim is barred under section 230, however, because the defamation claim treats the defendants as publishers of information provided by a third-party. We should therefore consider the traditional motion in the interest of judicial economy and rule directly on the section 230 issue.
Because section 230 does not bar an intentional tort claim based on alleged malicious conduct, the question remains whether any evidence supports that state law claim. It is with respect to that claim — a claim not barred by section 230—
Analysis
Congress enacted the Communications Decency Act in part to encourage removal of objectionable postings from websites. See Fair Hous. Council v. Roommates.com, LLC,
The Act should be read in the light of two cases that were decided before its enactment, because the Act was a response to the law at the time. See H.R.Rep. No. 104-458, at 194 (1996) (Conf.Rep.) (“One of the specific purposes of [section 230] is to overrule [Stratton Oakmont ] and any other similar decisions which have treated [interactive computer service] providers and users as publishers or speakers of content that is not their own because they have restricted access to objectionable material.”) See Stratton Oakmont, Inc. v. Prodigy Sens. Co.,
Congress responded with section 230 of the Communications Decency Act. See 47 U.S.C.A. § 230 (West 2001). The statute addresses the specific holding and the rationale in the Stratton Oakmont case by stating that
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
Id. § 230(c)(1). This language, along with a provision that bars a state law “inconsistent with this section,” essentially nullified the holding in Stratton Oakmont. See id. § 230(c)(1),(e)(3).
Civil liability. No provider or user of an interactive computer service shall be held liable on account of—
(A) 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!.]
Id. § 230(c)(2)(A) (emphasis added). This provision rejects the rationale applied in the Stratton Oakmont case. The Act essentially encourages a provider in a position like that of Prodigy to eliminate defamatory or otherwise objectionable material, and precludes civil liability for a provider’s good faith (successful or unsuccessful) attempt to restrict access.
The word “action” in section 230(c)(2)(A) necessarily includes a good faith, but unsuccessful effort to delete defamatory or other objectionable material. Otherwise, immunity would be granted for a good faith, successful deletion of defamatory material, and yet not granted for a good faith, but unsuccessful effort to delete other defamatory material. Essentially, that would permit the rationale of Stratton Oakmont to survive in section 230(c)(2)(A), and arguably permit civil liability to be imposed when a provider attempts in good faith to restrict access to objectionable material, but fails. That result would seem contrary to the purpose of section 230. The Act apparently was intended to provide protection for the provider’s good faith voluntary effort to remove a third-party’s defamatory statement.
By its terms, section 230(c)(2)(A) protects an action taken in “good faith” — that is, with an absence of malice. A provider that acts maliciously, and that would be held civilly liable under state law, does not enjoy federal immunity under section 230(c)(2)(A). The Act would not confer immunity on a provider who maliciously deleted the “not” in the statement “she is not a thief.” See generally Roommates, com,
Plaintiffs pleaded an intentional infliction of emotional distress claim. In my ■view, if a malicious website operator intentionally and unreasonably refuses to delete an anonymous third-party’s obviously defamatory statement, a claim based on an intentional tort may be asserted in the appropriate circumstances against the operator under Texas law. The specific claim plaintiffs assert in this case, however, is a very narrow remedy. See Tiller v.
The narrow tort remedy plaintiffs assert may not be available, simply because the remedy is considered a “gap-filler” in Texas and the availability of another remedy “leaves no gap to fill.” See Creditwatch, Inc. v. Jackson,
The basis of the liability is his duty not to permit the use of his land or chattels for a purpose damaging to others outside of the land. Something of an analogy may be found in ... the duty to use reasonable care to remedy a condition upon the defendant’s land created by another, which involves unreasonable danger to those outside of the land.
Restatement (Second) of ToRts § 577 cmt. p. The Comment makes clear that liability is imposed on the property owner only for an intentional and unreasonable failure to remove material that may be easily removed, and that is known to be defamatory. See id. There may be circumstances under which the provider need do nothing to remove the third-party’s defamatory statement; the property owner need not take “steps that are unreasonable if the burden of the measures outweighs the harm to the plaintiff.” Id. But because the liability of a website operator for intentional action that injures another may be based on, and also limited by, the operator’s control over the website material, the availability in Texas of a tort claim like that described in the Restatement may preclude the exceptional “gap-filler” type remedy plaintiffs assert here. See generally Creditwatch, Inc.,
The record demonstrates another — and in this case dispositive — restriction on the narrow claim plaintiffs assert in this case. The plaintiffs pleaded a cause of action for intentional infliction of emotional distress; although the claim is not barred by section 230 (because it is consistent with the Act), plaintiffs were required nevertheless to present evidence to support that claim in response to defendants’ no-evidence motion for summary judgment. If a plaintiff proves that a website owner engaged in “extreme and outrageous conduct” that proximately caused plaintiffs severe emotional distress, and that no alternative remedy for the severe emotional distress exists, the website owner could be held liable under Texas law for the damages he causes. See generally id. (elements of claim for intentional infliction of emotional distress). To establish an intentional infliction of emotional distress claim under Texas law, however, a plaintiff must show the defendant’s conduct was ‘“so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’ ” See Tiller,
Because plaintiffs offered no legally sufficient evidence to support an intentional tort claim not otherwise barred by section 230, the trial court did not err in granting summary judgment. Although I cannot join the majority opinion, I concur in this Court’s affirmance of the judgment.
. Some courts have read the word "publisher” in section 230(c)(1) to include a "distributor.” See Doe v. Am. Online, Inc.,