MITCHELL VAZQUEZ v. TERI BUHL ET AL.
(AC 35319)
Appellate Court of Connecticut
Argued November 22, 2013—officially released May 13, 2014
DiPentima, C. J., and Keller and Mihalakos, Js.
(Appeal from Superior Court, judicial district of Stamford-Norwalk, Hon. David R. Tobin, judge trial referee [motion to strike]; Hon. A. William Mottolese, judge trial referee [motion for judgment].)
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Erik Bierbauer, pro hac vice, with whom were Alan Neigher and, on the brief, Sheryle S. Levine, for the appellee (defendant NBCUniversal, Inc.).
DiPENTIMA, C. J. In this appeal, we confront Congress’ restrictions on defamation claims arising out of the Internet. The plaintiff, Mitchell Vazquez, appeals from the judgment of the trial court rendered after the granting of the motion brought by the defendant NBCUniversal Inc.,1 to strike counts two (defamation), three (false light), and four (negligent infliction of emotional distress) of the plaintiff‘s complaint. On appeal, the plaintiff claims that a motion to strike is not the proper procedural vehicle to decide the applicability of
The complaint alleges the following facts.3 In December, 2011, and January, 2012, Teri Buhl published several online news articles containing defamatory statements about the plaintiff on her website. On January 6, 2012, John Carney, a senior editor for cnbc.com, published an online article entitled, “The Sex and Money Scandal Rocking Hedge Fund Land” on www.cnbc.com, a website owned and operated by the defendant. Carney‘s article referred to Buhl as a “veteran financial reporter” who “knows her way around the Connecticut hedge fund beat,” and urged viewers to read Buhl‘s articles by stating, “I don‘t want to steal Buhl‘s thunder, so click on her report for the big reveal.” The word “report” was a hyperlink4 to Buhl‘s online articles containing the defаmatory statements.5
On January 25, 2012, the plaintiff filed his five count complaint against Buhl and the defendant.6 In count two, the plaintiff alleged a per se defamation claim against the defendant. He alleged that Carney‘s article “published, distributed, endorsed and promoted” the defamatory statements contained in Buhl‘s articles because it hyperlinked to Buhl‘s articles, validated Buhl‘s credibility, and claimed that Buhl had “made thunder by publishing her article.” (Internal quotation marks omitted.) In count three, the plaintiff alleged a false light claim.7 In count four, he alleged a negligent infliction of emotional distress claim.
On April 16, 2012, the defendant moved to strike the complaint, asserting, inter alia, that the CDA barred all counts alleged against it. On May 25, 2012, the plaintiff filed an objection to the motion to strike with an accompanying memorandum of law, to which he attached Carney‘s article.
The court heard oral argument on the motion, and in a subsequent memorandum of decision, granted the defendant‘s motion to strike. The court first concluded
We begin with the background of the CDA. Although no Connecticut state court has done so, several other state and federal courts have discussed the purpose behind the CDA in great detail. See, e.g., Batzel v. Smith, 333 F.3d 1018, 1026–30 (9th Cir. 2003), cert. denied, 541 U.S. 1085, 124 S. Ct. 2812, 159 L. Ed. 2d 246 (2004); Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997), cert. denied, 524 U.S. 937, 118 S. Ct. 2341, 141 L. Ed. 2d 712 (1998). “Congress enacted the CDA as Title V of the Telecommunications Act of 1996, Pub. L. No. 104-104, primarily to protect minors from exposure to obscene and indecent material on the Internet. See S. Rep. No. 104-23, at 187–193 (1996) (noting that Congress has been troubled by an increasing number of published reports of inappropriate uses of telecommunications technologies to transmit pornography, engage children in inappropriate adult contact, terrorize computer network users through electronic stalking and seize personal informatiоn) . . . .
“At the same time, however, Congress was also concerned with ensuring the continued development of the Internet. See
Section 230, in relevant part, provides that “[n]o 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.”
I
The plaintiff first claims that the applicability of the CDA should not have been decided on a motion to strike. His premise for this argument is that to invoke the CDA, the defendant must have pleaded it as a special defense. The plaintiff also argues that he should not have been required to predict and address the CDA when pleading allegatiоns in his complaint and should have been afforded the opportunity to conduct discovery. The defendant refutes such a premise and counters that, on the face of the complaint, it was protected under the CDA, and thus, a motion to strike was the proper procedural vehicle in this matter. Alternatively, the defendant argues that, should we treat the invocation of the CDA as a special defense, this case is analogous to those where our Supreme Court has permitted use of a motion to strike to determine issues of governmental immunity. See, e.g., Violano v. Fernandez, 280 Conn. 310, 907 A.2d 1188 (2006). We conclude that the defendant was not required to plead the CDA as a special defense and that the plaintiff‘s claims were properly decided on a motion to strike.
We begin with a brief discussion of relevant legal principles. “The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted. . . . [S]ee Practice Book § 10-39. A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court. . . . We take the facts to be those alleged in the complaint . . . and we construe the complaint in the manner most favorable to sustaining its legal sufficiency. . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied. . . . A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsuppоrted by the facts alleged.” (Citations omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).
By comparison, “[a]s a general rule, facts must be pleaded as a special defense when they are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action. . . . No facts may be proved under either a general or special denial except such as to show that the plaintiff‘s statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged. . . . Practice Book § 10-50. If a party seeks to introduce evidence under a denial which is consistent with a prima facie case, but nevertheless would tend to destroy the cause of action, the new matter must be affirmatively pleaded as a special defense.” (Citation omitted; internal quotation marks omitted.) Mitchell v. Guardian Systems, Inc., 72 Conn. App. 158, 166–67, 804 A.2d 1004, cert. denied, 262 Conn. 903, 810 A.2d 269 (2002).
Because this claim raises an issue of law over whether the appropriate procedural vehicle was used, our review is plenary. See Multari v. Yale-New Haven Hospital, Inc., 145 Conn. App. 253, 258, 75 A.3d 733 (2013); see also Larobina v. McDonald, 274 Conn. 394, 399–402, 876 A.2d 522 (2005). We conclude that the applicability of the CDA was properly decided on a motion to strike. Here, the invocation of the CDA did not require a special defense because the defendant did not have to plead any facts to demonstrate that the plaintiff had no cause of action. See Mitchell v. Guardian Systems, Inc., supra, 72 Conn. App. 166–67. The plaintiff conceded that the defendant was a “provider of an interactive computer service.” He further concedеd that his claims sought to treat the defendant as a publisher or speaker. And as we conclude in part II of this opinion, the defamatory statements had been “provided by another information content provider.” Accordingly, the plaintiff‘s allegations were legally insufficient to overcome the exception to liability under the CDA. See
Nonetheless, the plaintiff argues that whether the defendant is protected under the CDA is a question of fact that cannot be fairly resolved on a motion to strike. According to the plaintiff, deciding the CDA issue at the pleadings stage unfairly deprived him of the opportunity to conduct discovery and have such questions answered as: “Did Mr. Carney agree with Buhl in advance to add language which would enhance her credibility and draw additional attention to the [d]efamatory [a]rticle?” or “Did Mr. Carney promise Buhl that he would publicize the [d]efamatory [a]rticle in exchange for something of value to Mr. Carney.” We disagree for reasons set forth in Violano v. Fernandez, supra, 280 Conn. 324–26.
In a comparable context, the court in Violano
Here, the plaintiff had similar opportunities. He could have requested limited discovery, could have asked for time to plead additional facts, and could have sought to revise his complaint to allege additional facts, either aftеr the motion to strike was filed or after the court granted the motion. See id., 326; Practice Book § 10-44. Having declined these opportunities, the plaintiff cannot now claim unfairness.
For these reasons, the court did not err when it concluded that the applicability of the CDA could properly be decided on a motion to strike.
II
We now turn to the interpretation of the relevant provision of the CDA. The parties agree that the defendant is a provider of an “interactive computer service” because it is a website operator. See Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1162 n.6 (9th Cir. 2008) (“the most common interactive computer services are websites“); Universal Communication Systems, Inc. v. Lycos, Inc., 478 F.3d 413, 419 (1st Cir. 2007) (website “operators . . . are providers of interactive computer services within the meaning of Section 230“). The parties also agree that the plaintiff seeks to treat the defendant as a “publisher or speaker” of the allegedly actionable statements. The dispute between the parties focuses on the phrase “provided by another information content provider” in
We begin by setting forth the appropriate standard of review and the process by which we interpret federal statutes. Statutory construction is a question of law
A
The plaintiff argues that the words “provided by” imply that a “provider or user of an interactive computer service” can invoke the protection of
We iterate the relevant language of the statute. Section 230 (c) (1) provides: “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.” According to one dictionary, the definition of “provide” is to: “make (something) available” or “supply (something that is wanted or nеeded) . . . .” Merriam-Webster‘s Collegiate Dictionary (11th Ed. 2003). This ordinary meaning of “provided” is clarified within the context of a library. When it places books on its shelves, a library provides them to its readers. This does not change when it later checks them out to individual readers. Under both scenarios, it has provided its books; all that has changed in the second scenario is that we know specifically to whom it provided the books. In this case, as when the library places books on its shelves, Buhl provided, without knowing specifically to whom, the allegedly defamatory statements by posting them to her website. Of course, if Buhl had directly posted the defamatory statements on the defendant‘s website, she also would have provided the statements. That “provided” can
The plaintiff argues, however, that his narrow reading of “provided” must be correct because Congress could have used words like “created” or “originated,” if it had intended to shelter providers or users in cases where information was not directly transmitted to them. We are not persuaded. The fact that Congress could have used clearer words does not mean that we can ignore the most natural reading of the words it did use. Our role is to interpret statutes as they were written, not as they could have been written.
Furthermore, case law provides little support for the plaintiff‘s position. Although few courts have directly interpreted the words “providеd by,” many courts have confronted comparable factual scenarios and consistently have found interactive computer service providers protected by
We find no appreciable difference between this case and the case law cited. To be sure, those cases did not directly consider the language at issue here. They did, however, consider analogous factual allegations, and thus, indirectly rejected the arguments presented here. In any event, these cases are persuasive authority,
Nevertheless, the plaintiff seeks to depart from this precedent and cites Batzel v. Smith, supra, 333 F.3d 1018, in support of his claim. There, the editor of an e-mail newsletter received an allegedly defamatory e-mail from a third party. Id., 1021. After making minor changes, the editor incorporated the third party‘s e-mail into the next issue of his newsletter, which he then e-mailed to his subscribers. Id., 1022. In a defamation action against the editor, the United States Court of Appeals for the Ninth Circuit had occasion to interpret the word “provided” in
The plaintiff‘s reliance on Batzel is misplaced. The Ninth Circuit was not concerned with whether the third party had directly transmitted the e-mail to the editor of the newsletter (because he did), but instead, was cautious about expanding the scope of
Our interpretation also squares with the findings and policies expressed by Congress in promulgating
These expressions of congressional intent reflect a federal policy favoring the unfettered development of the Internet. See Batzel v. Smith, supra, 333 F.3d 1027–28. Congress, in 1996, likely could not have anticipated the advent and popularity of Twitter, Facebook or eBay, the shift from print to online news, the proliferation of
On the basis of the statutory text, relevant case law, and federal findings and policies stated previously, we reject the plaintiff‘s interpretation of “provided by” in
B
The plaintiff finally claims that the defendant should not be protected under
“An entity can be both an ‘interactive computer service’ and an ‘information content provider.’ . . . However, ‘[t]hе critical issue is whether . . . [the interactive computer service] acts as an information content provider with respect to the information’ at issue. . . . While an overt act of creation of content is easy to identify, determining what makes a party responsible for the ‘development’ of content under
Against this backdrop, we begin with the language of
In a case concerning the liability, under the Fair Housing Act, of a website designed to pair lessors with lessees, the United States Court of Appeals for the Ninth Circuit underscored the claim raised here. See Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, supra, 521 F.3d 1157. “It‘s true that the broadest sense of the term ‘develop’ could include . . . just about any function performed by a website. But to read the term so broadly would defeat the purposes of section 230 by swallowing up every bit of the immunity that the section otherwise provides. At the same time, reading the exception for co-developers as applying only to content that originates entirely with the website . . . ignores the words ‘development . . . in part’ in the statutory passage ‘creation or development in whole or in part.’
Similarly, the United States Court of Appeals for the First Circuit interpreted the language of
Additionally, the United States Court of Appeals for the Tenth Circuit interpreted the language of
Ordinarily, Connecticut state courts seek guidance from decisions of the United States Court of Appeals for the Second Circuit because they carry particularly persuasive weight in the interpretation of federal statutes. See, e.g., Rodriguez v. Testa, 296 Conn. 1, 11, 993 A.2d 955 (2010). Although the Second Circuit has not addressed the CDA, several District Courts within the Second Circuit have interpreted
The plaintiff does not challenge the interpretations of the Courts of Appeals, but instead relies, in part, on a series of other cases to support his claim. See
We conclude that the meaning of “development in part,” as dеfined in case law interpreting the language of
It is immaterial whether the defendant amplified, endorsed, or adopted the dеfamatory statements, because the defendant played no role in their composition. The plaintiff, for example, did not allege that the defendant edited, altered or wrote any of the defamatory statements or any other part of Buhl‘s articles. He also did not allege that the defendant supervised, communicated or collaborated with Buhl, either before or after the publication of her articles. See Parisi v. Sinclair, 774 F. Supp. 2d 310, 313, 317 (D.D.C. 2011) (service providers who did not write, contribute to, actively solicit, encourage or communicate with author of allegedly defamatory statements were shielded by
To the contrary, the allegations address only the defendant‘s conduct after the actionable statements were conceived, written and published by Buhl. Without more, the allegations do not fall within the meaning of “development in part,” as defined in the case law interpreting the language of
The judgment is affirmed.
In this opinion the other judges concurred.
DiPENTIMA, C. J.
Notes
“Congress has granted providers and users of interаctive computer services total immunity under the CDA. . . . This license is clearly subject to tremendous abuse, and the Court has serious misgivings about this Circuit‘s broad interpretation of § 230 immunity. The prospect of blanket immunity for those who intentionally redistribute defamatory statements could have widespread and potentially catastrophic consequences for individuals and entities alike. Nevertheless, under the CDA the Court‘s hands are tied.” Directory Assistants, Inc. v. Supermedia, LLC, 884 F. Supp. 2d 446, 453 (E.D. Va. 2012); see also Global Royalties, Ltd. v. Xcentric Ventures, LLC, 544 F. Supp. 2d 929, 933 (D. Ariz. 2008). The Internet is no longer the burgeoning medium that it was in 1996. See Zeran v. America Online, Inc., supra, 129 F.3d 330. We question whether the main policy reasons underlying the original enactment of § 230 remain relevant. Nevertheless, the language of § 230 compels us to reject the plaintiff‘s theory of liability unless and until Congress amends the statute.