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Injunction against defamatory content could not reach website owner

By Evan Brown

Blockowicz v. Williams, — F.Supp.2d —, 2009 WL 4929111 (N.D. Ill. December 21, 2009)

(This is a case from last month that has already gotten some attention in the legal blogosphere, and is worth reporting on here in spite of the already-existing commentary.)

Plaintiffs sued two individual defendants for defamation over content those defendants posted online. The court entered an order of default after the defendants didn’t answer the complaint. The court also issued an injunction against the defendants, requiring them to take down the defamatory material.

When plaintiffs were unable to reach the defendants directly, they asked the websites on which the content was posted — MySpace, Facebook, Complaints Board and Ripoff Report — to remove the material.

All of the sites except Ripoff Report took down the defamatory content. Plaintiffs filed a motion with the court to get Ripoff Report to remove the material. Ripoff Report opposed the motion, arguing that Rule 65 (the federal rule pertaining to injunctions) did not give the court authority to bind Ripoff Report as a non-party. The court sided with Ripoff Report and denied the motion.

Federal Rule of Civil Procedure 65 states that injunctions bind the parties against whom they are issued as well as “other persons who are in active concert or participation with” those parties. In this case, the court looked to the Seventh Circuit opinion of S.E.C. v. Homa, 514 F.3d 674 (7th Cir. 2008) for guidance on the contours of Rule 65’s scope. Under Homa, a non-party can be bound by an injunction if it is “acting in concert” or is “legally identified” (like as an agent or employee) with the enjoined party.

Plaintiffs argued that Ripoff Report was acting in concert with the defamers. Plaintiffs looked to Ripoff Report’s terms of service, by which posters to the site give an exclusive copyright license to and agree to indemnify Ripoff Report. Those terms also state that Ripoff Report will not remove any content for any reason. Plaintiffs read this combination of terms to stand for some sort of arrangement whereby Ripoff Report agreed to be a safe haven for defamatory material.

The court rejected this argument, finding there was no evidence in the record that Ripoff Report intended to protect defamers. Moreover, there was no evidence that Ripoff Report had communicated with the defendants in any way since the entry of a permanent injunction, or otherwise worked to violate the earlier court order requiring defendants to remove the materials.

Other commentary on this case:

• Eric Goldman
• Wendy Davis
• Ben Sheffner

Grasping photo courtesy Flickr user Filmnut under this Creative Commons license.

Full post as published by InternetCases.com on January 07, 2010 (boomark / email).