January/February 2011

Seventh Circuit Tells Non-Party Website It May Ignore Order to Take Down Defamatory Statements

Holland & Knight Newsletter
Christine N. Walz

Since 1996, Internet service providers have been immune from defamation suits under Section 230 of the Communications Decency Act. But in Blockowicz v. Williams, the plaintiffs recently tried an end run around this law, asking a federal court in Chicago to enforce an injunction and require that a website run by an Arizona company remove defamatory statements posted by the defendants.

The U.S. Seventh Circuit Court of Appeals has agreed with the trial court, however, and held that – based on evidence that the non-party website’s operators have done “nothing more than ... [ignore] the injunction” – the court lacks the authority to order the website to take down the postings.

Plaintiffs David, Mary and Lisa Blockowicz brought a defamation case against two individuals who posted defamatory statements on www.ripoffreport.com, a website that provides a forum for users to post comments about bad business practices. The Northern District of Illinois court enjoined the individual posters, ordering that they remove the defamatory statements. When the defendants failed to comply, the Blockowiczs asked the judge to enforce the injunction and compel the host of www.ripoffreport.com  and the website’s manager to remove the defamatory statements from the website.

The Blockowiczs argued that under Federal Rule of Civil Procedure 65, which allows a federal court to issue an injunction against those who are “in active concert or participation” with an enjoined party and who have actual notice of the injunction, the website’s operators were bound by the injunction the Blockowiczs had secured against the defendants. The Northern District of Illinois court, however, determined that it lacked the power to require the host and manager of the website to remove the statement.

The Blockowiczs appealed, and the Seventh Circuit affirmed the lower court’s ruling that the host and manager of www.ripfoffreport.com could not be compelled to remove the defamatory statements under Rule 65. Specifically, the appeals court said that the website operators could not be bound by the injunction because they did not act in active concert or participation with the posters and did not aid or abet the posters in violating the injunction.

The Blockowiczs made two principal arguments. First, they argued that the terms of service in the contract between the website operators and the posters amounted to an act that aided and abetted the posters’ publication of the comments at issue because, under the terms of service in the contract, the website operators agreed that it would not remove any postings. The appeals court held that, because the agreement predated the injunction, the website operators did not have actual notice of the injunction at the time of the agreement. Therefore, the terms of the agreement could not be used to support the plaintiffs’ claim that the website was aiding and abetting the posters’ violation of the injunction.

Second, the Blockowiczs argued that because the website operators were technically capable of removing the comments and failed to do so, the website operators were acting in concert with the posters. The Seventh Circuit also rejected this argument. The record indicated that the website operators ignored the injunction, but had taken no affirmative steps that could be considered acting in concert with the posters.

Mere inactivity, the court concluded, could not be considered aiding and abetting the posters’ violation of the injunction: “Since the injunction was issued, [the website operator] has simply done nothing, and it has certainly not actively assisted the defendants in violating the injunction.”

In rejecting the Blockowiczs’ attempts to require www.ripoffreport.com to remove defamatory statements, the courts have taken another important step in preserving the autonomy of website operators to decide what content to remove or leave posted.

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