Tag Archive: difamación

UK: Payam Tamiz v. Google, [2013] EWCA Civ 68

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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Tamiz v Google Inc [2013] EWCA Civ 68 (14 February 2013)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2013/68.html
Cite as: [2013] WLR(D) 65, [2013] 1 WLR 2151, [2013] EWCA Civ 68, [2013] EMLR 14
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Neutral Citation Number: [2013] EWCA Civ 68
Case No: A2/2012/0691
Mr Justice Eady
[2012] EWHC 449 (QB)

Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :


Payam Tamiz
– and –

Google Inc

Godwin Busuttil (instructed by Brett Wilson LLP) for the Appellant
Antony White QC and Catrin Evans (instructed by Reynolds Porter Chamberlain LLP) for the Respondent
Hearing dates : 3-4 December 2012


Crown Copyright ©

Lord Justice Richards :

The respondent, Google Inc, is a corporation registered in Delaware and with its principal place of business in California. It provides a range of internet services including Blogger (also referred to as Blogger.com), a service based and managed in the USA but available worldwide. Blogger is a platform that allows any internet user in any part of the world to create an independent blog (web log). The service includes design tools to help users create layouts for their blogs and, if they do not have their own URL (web address), enables them to host their blogs on Blogger URLs. The service itself is free of charge but bloggers can sign up to a linked Google service that enables them to display advertisements on their blogs, the revenues from which are shared between the blogger and Google Inc.
One of the blogs hosted on Blogger bears the name “London Muslim”. The appellant, Mr Tamiz, complains that eight specific comments posted on the London Muslim blog between 28 and 30 April 2011 were defamatory of him. There is an issue, considered below, as to when any complaint was first notified by him to Google Inc. It is common ground, however, that his letter of claim was received by Google Inc in early July 2011; that on 11 August 2011, after further email exchanges, the letter was forwarded to the blogger; and that on 14 August 2011 the blogger voluntarily removed all the comments about which complaint is made.
The appellant seeks to bring a claim in libel against Google Inc in respect of the publication of the allegedly defamatory comments during the period prior to their removal. He was granted permission by Master Eyre to serve the claim form on Google Inc in California. On Google Inc’s subsequent application, however, Eady J held that the court should decline jurisdiction and that the Master’s order for service out of the jurisdiction should therefore be set aside. The judge’s order to that effect is the subject of the present appeal. The judge also held that Google UK Ltd had been joined in the proceedings inappropriately and that there was no triable claim against it. There is no appeal against that aspect of his decision.
In summary, Eady J found that three of the comments were arguably defamatory but that on common law principles Google Inc was not a publisher of the words complained of, whether before it was notified of the complaint or after such notification. If, contrary to that view, Google Inc was to be regarded as a publisher at common law, section 1 of the Defamation Act 1996 (“the 1996 Act”) would provide it with a defence, in particular because it took reasonable care in passing the complaint on to the blogger after it had been notified of it. At this point of his judgment Eady J also indicated his acceptance of a submission that the period between notification and removal of the offending blog was so short as to give rise to potential liability on the part of Google Inc only for a very limited period, such that the court should regard its potential liability as so trivial as not to justify the maintenance of the proceedings, in accordance with the principles in Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946. Nevertheless he went on to consider an alternative defence under regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002 (“the 2002 Regulations”), which he held would provide Google Inc with a defence if it were otherwise needed.
The main issues in the appeal, taking them in the order in which they were considered by the judge below, are (1) whether there is an arguable case that Google Inc was a publisher of the comments, (2) whether, if it was a publisher, it would have an unassailable defence under section 1 of the 1996 Act, (3) whether any potential liability was so trivial as not to justify the maintenance of the proceedings, and (4) whether Google Inc would have a defence, if otherwise necessary, under regulation 19 of the 2002 Regulations.
Before considering those issues it is necessary to say a little more about various background matters.
The comments themselves

An article in the Evening Standard on 27 April 2011 contained an allegation that the appellant had resigned as a Conservative Party candidate for local elections in Thanet after it had been discovered that his Facebook site referred to women as “sluts”. The appellant sued separately in respect of that article and the proceedings were settled by a consent order. The topic was picked up in an article posted on the London Muslim blog on 27 April. This gave rise to a number of comments posted anonymously over the next three days. The comments complained of are set out in Eady J’s judgment at [7]. The judge held that five of the comments could be characterised in this context as “mere vulgar abuse” to which no sensible person would attach much, if any, weight (see Smith v ADVFN Plc [2008] EWHC 1797 (QB) at [13]-[17], and Clift v Clarke [2011] EWHC 1164 (QB) at [32] and [36]). He found, however, that three of the comments (Comments A, B and D) were arguably defamatory. They included allegations that the appellant was a drug dealer, had stolen from his employers and was hypocritical in his attitude towards women.
The arguments on the appeal included a brief submission that the judge ought also to have found other comments to be arguably defamatory: in particular, Comment E which contained a suggestion that the appellant had made a fake asylum claim. But the judge directed himself correctly and I see no sufficient basis for interfering with the assessment he made on this issue.
Notification of the complaint

On the evidence before him, the judge dealt with the factual issue of notification as follows:
“15. According to Mr Tamiz, he first notified his complaint on 28 or 29 April 2011 (i.e. as the postings were taking place) when he used the “Report Abuse” function on the relevant web page. What became of this remains unclear.
16. A letter of claim was sent on 29 June to Google UK Ltd, which was received on 5 July. This complained of the original article, as being defamatory and untrue, although it was not subsequently sued upon in these proceedings. Complaint was also made of what is now described as Comment A. This letter was passed by Google UK Ltd to Google Inc, which responded to Mr Tamiz by email on 8 July. Clarification was sought as to whether the comment in question was said to be untrue, since his letter had not apparently made that clear. It was at this stage that it was pointed out to Mr Tamiz that the blogger service had nothing to do with Google UK Ltd.
17. Mr Tamiz responded promptly on 8 July to the effect that Comment A was indeed “false and defamatory”. At this stage, he introduced a complaint about Comment B as well.
18. The ‘Blogger Team’ within Google Inc sent a further email to Mr Tamiz on 19 July, seeking his permission to forward his complaint to the author of the blog page. He was told, however, that Google Inc itself would not be removing the post complained of. Mr Tamiz responded by giving the necessary permission on 22 July.
19. In that email of 22 July, Mr Tamiz complained about a further five comments on the blog, now identified as Comments C, D, E, F and G. He confirmed that these were alleged to be defamatory and it seemed to be implicit also that he was characterising them as untrue.
20. After considerable delay, Google Inc forwarded the letter of claim to the blogger on 11 August of last year and informed Mr Tamiz that it had done so. As I have said, on 14 August the article and all the comments were removed by the blogger himself. Mr Tamiz was accordingly notified by Google Inc the following day ….”
In his particulars of claim the appellant alleged that between 29 April and the letter of claim he made various telephone calls to Google UK Ltd and sent two letters, dated 29 April and 23 May, to that company’s offices. Those allegations were not admitted by the defendants and were not supported by evidence at the hearing before Eady J. The defendants also contended that communications to Google UK Ltd were not capable of constituting notification to Google Inc. The transcript of the hearing makes it tolerably clear that the appellant was content in the event to proceed on the basis that the date of notification of the complaint to Google Inc was the date when the letter of claim was forwarded to Google Inc by Google UK Ltd, which fell between 5 July (when Google UK Ltd received the letter) and 8 July (when Google Inc first contacted the appellant by email). All this fits with the way the judge dealt with the matter in the passage quoted above.
The appellant has applied to adduce fresh evidence on the appeal, in the form of a witness statement in which he gives detailed further information about the Blogger service and about his dealings with Google UK Ltd and Google Inc, exhibiting inter alia copies of the two letters allegedly sent by him to Google UK Ltd. If that evidence is admitted, Google Inc applies to adduce fresh evidence in response, by way of a witness statement asserting that Google UK Ltd has no record of receiving any telephone calls or letters from the appellant prior to the letter of claim, and giving an update on the procedure for complaints about postings on Blogger.
Ladd v Marshall [1954] 1 WLR 1489 remains central to the exercise of the court’s discretion as to the receipt of fresh evidence under CPR 52.11(2) (see the discussion at para 52.11.2 of Civil Procedure 2012). The first condition in Ladd v Marshall is plainly not met in this case: the evidence the appellant now seeks to adduce could have been obtained with reasonable diligence for use at the hearing below. Indeed, in practice the issue to which the evidence relates fell away at that hearing, since the appellant was content to proceed on the narrower basis that the letter of claim constituted notification of his complaint. I bear in mind that at that stage of the proceedings he was representing himself but I attach relatively little weight to that consideration because he is a law graduate and, as appears from the transcript of the hearing, is intelligent and articulate. Taking everything into account, I do not consider that the case for admission of the fresh evidence has been made out. The issues in the appeal ought in my view to be determined on the factual basis on which the judge proceeded.
Google Inc’s policy

Google Inc’s policy towards the content of blogs hosted by Blogger at the material time is set out in a witness statement of Mr Jaron Lewis, a solicitor with conduct of the company’s case:
“9. Blogger.com is not involved with the creation of content that people post on their blogs. It does not create, select, solicit, vet or approve that content, which is published and controlled by the blog owners ….
10. Blogger.com does operate a ‘Content Policy’ which sets out restrictions on what users can do using the service …. This makes clear that content such as child pornography, or promoting race hatred, is prohibited. The policy is explained in the following terms:
‘Blogger is a free service for communication, self-expression and freedom of speech. We believe that Blogger increases the availability of information, encourages healthy debate and makes possible new connections between people.
We respect our users’ ownership of and responsibility for the content they choose to share. It is our belief that censoring this content is contrary to a service that bases itself on freedom of expression.
In order to uphold these values, we need to curb abuses that threaten our ability to provide this service and the freedom of expression it encourages. As a result, there are some boundaries on the type of content that can be hosted with Blogger. The boundaries we have defined are those that both comply with legal requirements and that serve to enhance the service as a whole.’
11. [Google Inc] also operates a ‘Report Abuse’ feature …. There are eight grounds for reporting abuse, and users have to select one of these. The eight listed are …

12. If the user selects ‘Defamation/Libel/Slander’, which is what appears to have happened in this case …, a second screen is displayed.
13. The second screen makes clear that the Blogger.com service is operated in accordance with US law, and that defamatory material will only be taken down if it has been found to be libellous (i.e. unlawful) by a court. The reason for this policy is that under US law, [Google Inc] is not a publisher of third party content hosted on blogspot.com. US law works on the basis that claimants must raise their defamation issues directly with the author of the material, not third party service providers such as Blogger.com.
14. Given the volume of content uploaded by users of the Blogger service, it is usually not practicable for [Google Inc] to remove content without first receiving the Court’s determination that the content is, in fact, libellous. Google is not in a position to adjudicate such disputes itself.”
In this case Google Inc appears to have gone slightly further than the stated policy, in that the email of 11 August 2011 by which it passed on to the blogger the details of the appellant’s complaint contained an actual request to “please remove the allegedly defamatory content in your blog within three (3) days of today’s date”. The blogger complied with that request.
Whether Google Inc was a publisher of the comments

The appellant’s pleaded case relates to the period after Google Inc had been notified of his complaint. As Eady J observed, it is therefore only necessary to assess potential legal liability from the point of notification. Nevertheless the judge’s reasons and the arguments in this court extended to the position before as well as after notification.
At [35]-[38] of his judgment, the judge noted inter alia that it was virtually impossible for Google Inc to exercise editorial control over the content of the blogs it hosts, which in the aggregate contain more than half a trillion words, with 250,000 new words added every minute. He referred to the submission that it would be unrealistic to attribute responsibility for publication of material on any particular blog to Google Inc, whether before or after notification of a complaint. He also referred to the importance of striving to achieve consistency in decisions in the face of rapidly developing technology, and to paying proper regard to the values enshrined in the ECHR. He said that the fact that an entity in Google Inc’s position had been notified of a complaint did not immediately convert its status or role into that of a publisher. If Google Inc’s status before notification of a complaint was that of a provider or a facilitator, it was not easy to see why that role should be expanded thereafter into that of a person who authorised or acquiesced in publication. Google Inc claimed to remain as neutral in the process after notification as it was before. It might be true that it had the technical capability of taking down blogs or comments on its platform, yet that was not by any means the same as saying that it had become an author or authoriser of the publication:
“It is no doubt often true that the owner of a wall which has been festooned, overnight, with defamatory graffiti could acquire scaffolding and have it all deleted with whitewash. That is not necessarily to say, however, that the unfortunate owner must, unless and until this has been accomplished, be classified as a publisher.”
The judge went on at [39] to attach significance to the evidence that Google Inc was not required to take any positive step, technically, in the process of continuing the accessibility of the offending material: he said that its role as a platform provider was “a purely passive one”. The situation was thus in his view closely analogous to that described in Bunt v Tilley [2007] 1 WLR 1243, and in striving to achieve consistency in the court’s decision-making he would rule that Google Inc was not liable at common law as a publisher.
Bunt v Tilley concerned internet service providers (ISPs) who were not alleged to have hosted any website relevant to the claims. The issue was whether they could be liable simply in respect of defamatory material communicated via the services they provided. Eady J was again the judge. In a central passage of his judgment he said this:
“21. In determining responsibility for publication in the context of the law of defamation, it seems to me to be important to focus on what the person did, or failed to do, in the chain of communication. It is clear that the state of a defendant’s knowledge can be an important factor. If a person knowingly permits another to communicate information which is defamatory, when there would be an opportunity to prevent the publication, there would seem to be no reason in principle why liability should not accrue. So too, if the true position were that the applicants had been (in the claimant’s words) responsible for ‘corporate sponsorship and approval of their illegal activities’.
22. I have little doubt, however, that to impose legal responsibility upon anyone under the common law for the publication of words it is essential to demonstrate a degree of awareness or at least an assumption of general responsibility, such as has long been recognised in the context of editorial responsibility. As Lord Morris commented in McLeod v St Aubyn [1899] AC 549, 562: ‘A printer and publisher intends to publish, and so intending cannot plead as a justification that he did not know the contents. The appellant in this case never intended to publish.’ In that case the relevant publication consisted in handing over an unread copy of a newspaper for return the following day. It was held that there was no sufficient degree of awareness or intention to impose legal responsibility for that ‘publication’.
23. Of course, to be liable for a defamatory publication it is not always necessary to be aware of the defamatory content, still less of its legal significance. Editors and publishers are often fixed with responsibility notwithstanding such lack of knowledge. On the other hand, for a person to be held responsible there must be knowing involvement in the process of publication of the relevant words [emphasis in the original]. It is not enough that a person merely plays a passive instrumental role in the process. (See also in this context Emmens v Pottle (1885) 16 QBD 354, 357, per Lord Esher MR.)”
At [36] he held that an ISP which performs no more than a passive role in facilitating postings on the internet cannot be deemed to be a publisher at common law. A telephone company or other passive medium of communication, such as an ISP, is not analogous to someone in the position of a distributor, who might at common law be treated as having published so as to need a defence.
In Metropolitan International Schools Ltd v Designtechnica Corpn [2011] 1 WLR 1743 Eady J applied a similar analysis in relation to defamatory comments which, having been posted on a website, appeared as a “snippet” of information when an internet search was carried out under the claimant’s name on Google Inc’s search engine. The judge said that for a person to be fixed at common law with responsibility for publishing defamatory words, there needed to be a mental element, as summarised in Bunt v Tilley. He held that the search in issue was performed automatically and involved no input from Google Inc, which had not authorised or caused the snippet to appear on the user’s screen in any meaningful sense but had merely by the provision of its search service played the role of a facilitator. As to the position once Google Inc had been informed of the defamatory content of the snippet, the judge said that a person can be liable for the publication of libel by acquiescence, that is to say by permitting publication to continue when he or she has the power to prevent it. He drew a distinction between a search engine and someone hosting a website, pointing to the greater difficulty of ensuring that offending words do not appear on a search snippet. Google Inc’s “take-down” procedure might not have operated as rapidly as the claimant would wish, but it did not follow as a matter of law that between notification and take-down Google Inc became liable as a publisher of the offending material. While efforts were being made to achieve a take-down in relation to a particular URL it was hardly possible to fix Google Inc with liability on the basis of authorisation, approval or acquiescence. On the facts of the case, he believed it unrealistic to attribute responsibility for publication to Google Inc.
At the forefront of the appellant’s submissions to this court was an elaborate attack on Bunt v Tilley as applied in Metropolitan International Schools Ltd and the present case. Mr Busuttil submitted that the reasoning in Bunt v Tilley erroneously conflated a number of different threads of law. What Eady J said about the need for “knowing involvement in the process of publication of the relevant words” is at odds with the principle of strict liability for publication, irrespective of knowledge of the defamatory words. Further, in certain circumstances a person may be or become involved in publishing defamatory material by omission, by failing or forbearing to take a step that ought to have been taken, or by remaining passive. The judge’s reasoning does not accurately reflect the distinction between a primary publisher and a secondary publisher (for whom alone the common law defence of innocent dissemination is available). Nor does the reasoning take proper account of the principles of vicarious liability or agency as they apply to render corporations liable for the publication of defamatory material by employees or agents. Mr Busuttil drew our attention to numerous domestic and Commonwealth authorities, submitting in particular that the courts in Australia have not accepted the Bunt v Tilley analysis (see e.g. Trkulja v Google Inc (No.5) [2012] VSC 533, a decision of the Supreme Court of Victoria), although the analysis has been followed by the Canadian Supreme Court (see Crookes v Newton [2011] 3 SCR 269).
Mr Busuttil submitted that Google Inc is a corporation in the business of publishing, acting not just through its employees but also through the myriad of bloggers and all those who post comments on the blogs. It has control over the blogger, who in turn has control over the comments posted on the blog. Google Inc is therefore to be regarded as a primary publisher, potentially liable for defamatory material on the blogs, irrespective of knowledge or fault and irrespective of whether it has been notified of any complaint, subject however to any statutory defences. Alternatively it is a secondary publisher, facilitating publication in a manner analogous to a distributor, subject to the common law defence of innocent dissemination as well as to statutory defences, though it will be difficult to establish the defence of innocent dissemination if it has the power to prevent continuing publication and chooses not to exercise that power.
I do not find it necessary to address the full detail of Mr Busuttil’s criticisms of Bunt v Tilley. I am not persuaded that Eady J fell into any fundamental error of analysis or reached the wrong conclusion in relation to the kind of internet service under consideration in that case. For the reasons set out below, however, I respectfully differ from Eady J’s view that the present case is so closely analogous to Bunt v Tilley as to call for the same conclusion. In my view the judge was wrong to regard Google Inc’s role in respect of Blogger blogs as a purely passive one and to attach the significance he did to the absence of any positive steps by Google Inc in relation to continued publication of the comments in issue.
By the Blogger service Google Inc provides a platform for blogs, together with design tools and, if required, a URL; it also provides a related service to enable the display of remunerative advertisements on a blog. It makes the Blogger service available on terms of its own choice and it can readily remove or block access to any blog that does not comply with those terms (a point of distinction with the search engine under consideration in Metropolitan International Schools Ltd, as the judge himself noted in that case). As a matter of corporate policy and no doubt also for reasons of practicality, it does not seek to exercise prior control over the content of blogs or comments posted on them, but it defines the limits of permitted content and it has the power and capability to remove or block access to offending material to which its attention is drawn.
By the provision of that service Google Inc plainly facilitates publication of the blogs (including the comments posted on them). Its involvement is not such, however, as to make it a primary publisher of the blogs. It does not create the blogs or have any prior knowledge of, or effective control over, their content. It is not in a position comparable to that of the author or editor of a defamatory article. Nor is it in a position comparable to that of the corporate proprietor of a newspaper in which a defamatory article is printed. Such a corporation may be liable as a primary publisher by reason of the involvement of its employees or agents in the publication. But there is no relationship of employment or agency between Google Inc and the bloggers or those posting comments on the blogs: such people are plainly independent of Google Inc and do not act in any sense on its behalf or in its name. The appellant’s reliance on principles of vicarious liability or agency in this context is misplaced.
I am also very doubtful about the argument that Google Inc’s role is that of a secondary publisher, facilitating publication in a manner analogous to a distributor. In any event it seems to me that such an argument can get nowhere in relation to the period prior to notification of the complaint. There is a long established line of authority that a person involved only in dissemination is not to be treated as a publisher unless he knew or ought by the exercise of reasonable care to have known that the publication was likely to be defamatory: Emmens v Pottle (1885) 16 QBD 354, 357-358; Vizetelly v Mudie’s Select Library Ltd [1900] 2 QB 170, 177-180; Bottomley v FW Woolworth and Co Ltd (1932) 48 TLR 521. There are differences in the reasoning in support of that conclusion but the conclusion itself is clear enough. The principle operated in Bottomley to absolve Woolworth from liability for publication of a defamatory article in a consignment of remaindered American magazines that it distributed: the company did not check every magazine for defamatory content, there was nothing in the nature of the individual magazine which should have led it to suppose that the magazine contained a libel, and it had not been negligent in failing to carry out a periodical examination of specimen magazines. Since it cannot be said that Google Inc either knew or ought reasonably to have known of the defamatory comments prior to notification of the appellant’s complaint, that line of authority tells against viewing Google Inc as a secondary publisher prior to such notification. Moreover, even if it were to be so regarded, it would have an unassailable defence during that period under section 1 of the 1996 Act, considered below.
In relation to the position after notification of the complaint, however, additional considerations arise, and it is in relation to this period that I take a different view from that of Eady J on the issue of publication. I am led to do so primarily by the decision of the Court of Appeal in Byrne v Deane [1937] 1 KB 818. That case concerned an allegedly defamatory verse which someone had posted on the wall of a golf club and which was then allowed to remain there for some days. The defendants, who had not been involved in the initial publication, were the proprietors of the golf club, and one of them was also the club secretary. One of the rules of the club provided that “no notice or placard shall be posted in the club premises without the consent of the secretary”. The court held by a majority that the words of the verse were not capable of a defamatory meaning, but all three members of the court agreed that there was evidence of publication by one or both of the defendants. Greer LJ expressed the point in this way (at page 830):
“In my judgment the two proprietors of this establishment by allowing the defamatory statement, if it be defamatory, to rest upon their wall and not to remove it, with the knowledge that they must have had that by not removing it it would be read by people to whom it would convey such meaning as it had, were taking part in the publication of it.”
Slesser LJ considered there to be evidence of publication by the secretary but not by the other defendant. In relation to the secretary he said this (at pages 834-835):
“There are cases which go to show that persons who themselves take no overt part in the publication of defamatory matter may nevertheless so adopt and promote the reading of the defamatory matter as to constitute themselves liable for the publication ….
… She said ‘I read it. It seemed to me somebody was rather annoyed with somebody.’ I think having read it, and having dominion over the walls of the club as far as the posting of notices was concerned, it could properly be said that there was some evidence that she did promote and associate herself with the continuance of the publication.”
Greene LJ agreed with Greer LJ that there was evidence of publication by both defendants. His reasons included the following (at pages 837-838):
“It is said that as a general proposition where the act of the person alleged to have published a libel has not been any positive act, but has merely been the refraining from doing some act, he cannot be guilty of publication. I am quite unable to accept any such general proposition. It may very well be that in some circumstances a person, by refraining from removing or obliterating the defamatory matter, is not committing any publication at all. In other circumstances he may be doing so. The test it appears to me is this: having regard to all the facts of the case is the proper inference that by not removing the defamatory matter the defendant really made himself responsible for its continued presence in the place where it had been put?”
Byrne v Deane was considered in Godfrey v Demon Internet Ltd [2001] QB 201, in which the defendant ISP received and stored on its news server a defamatory article which had been posted by an unknown person using another ISP. The plaintiff notified the defendant of the article and asked it to remove the article, but the defendant failed to do so and the posting remained on the news server for ten days until it expired automatically. The plaintiff claimed against the defendant in respect of that period of ten days. Morland J held that the defendant was liable. Whilst he cited the passage from Greene LJ’s judgment in Byrne v Deane quoted above, he rested his decision on the broader ground that whenever there was a transmission of a defamatory posting from the storage of the defendant’s news server, the defendant was a publisher of that posting but had a defence under section 1 of the 1996 Act until it lost that defence as a result of the plaintiff’s notification.
More directly in point is Davison v Habeeb and Others [2011] EWHC 3031 (QB), which concerned defamatory material posted on a blog hosted by Google Inc itself. HHJ Parkes QC, sitting as a deputy judge of the High Court, considered it arguable that Google Inc was a publisher from the outset, subject to the defence under section 1 of the 1996 Act, but he also relied on Byrne v Deane as an alternative strand in the reasoning that led him to conclude that there was an arguable case against Google Inc:
“38. … The analogy between the ISPs which Eady J was considering in Bunt v Tilley … and the postal service was an apt one, because the ISPs in that case, like the postal or indeed the telephone services, were simply conduits, or facilitators, enabling messages to be carried from one person, or one computer, to another. Blogger.com, by contrast, is not simply a facilitator, or at least not in the same way as the ISPs. It might be seen as analogous to a gigantic noticeboard which is in [Google Inc’s] control, in the sense that [Google Inc] provides the noticeboard for users to post their notices on, and it can take the notices down (like the club secretary in Byrne v Deane …) if they are pointed out to it. However, pending notification it cannot possibly have the slightest familiarity with the notices posted, because the noticeboard contains such a vast and constantly growing volume of material. On that analogy, it ought not to be viewed as a publisher until (at the earliest) it has been notified that it is carrying defamatory material so that, by not taking it down, it can fairly be taken to have consented to and participated in publication by the primary publisher. The alternative is to say that, like Demon Internet in Godfrey v Demon Internet Ltd…, it chose to host material which turned out to be defamatory, and which it was open to anyone to download, so that at common law it was prima facie liable for publication of the material, subject to proof that it lacked the necessary mental state.

42. … In my view it must be at least arguable that [Google Inc] should properly be seen as a publisher responding to requests for downloads like Demon Internet, rather than a mere facilitator, playing a passive instrumental role.

47. Even if [Google Inc] should properly be seen as a facilitator, the mere provider of a gigantic noticeboard on which others published defamatory material, in my judgment it must also at least be arguable that at some point after notification [Google Inc] became liable for continued publication of the material complained of on the Byrne v Deane principle of consent or acquiescence.”
The principles in Byrne v Deane have also been applied in the context of website or search engine content in a number of Commonwealth cases to which Mr Busuttil drew our attention: see, in particular, Sadiq v Baycorp (NZ) Limited [2008] NZHC 403 and A v Google New Zealand Ltd [2012] NZHC 2352.
In the present case, Eady J referred at [32]-[33] to Godfrey v Demon Internet Ltd and to Davison v Habeeb, observing that the position may well be fact sensitive: liability may turn upon the extent to which the relevant ISP has knowledge of the words complained of, and of their illegality or potential illegality, and/or on the extent to which it has control over publication. In relation to Blogger he said nothing about HHJ Parkes QC’s analogy with the provision of a gigantic notice board on which others post comments. Instead, he drew an analogy with ownership of a wall on which various people choose to inscribe graffiti, for which the owner is not responsible (see [16] above). I have to say that I find the notice board analogy far more apposite and useful than the graffiti analogy. The provision of a platform for the blogs is equivalent to the provision of a notice board; and Google Inc goes further than this by providing tools to help a blogger design the layout of his part of the notice board and by providing a service that enables a blogger to display advertisements alongside the notices on his part of the notice board. Most importantly, it makes the notice board available to bloggers on terms of its own choice and it can readily remove or block access to any notice that does not comply with those terms.
Those features bring the case in my view within the scope of the reasoning in Byrne v Deane. Thus, if Google Inc allows defamatory material to remain on a Blogger blog after it has been notified of the presence of that material, it might be inferred to have associated itself with, or to have made itself responsible for, the continued presence of that material on the blog and thereby to have become a publisher of the material. Mr White QC submitted that the vast difference in scale between the Blogger set-up and the small club-room in Byrne v Deane makes such an inference unrealistic and that nobody would view a comment on a blog as something with which Google Inc had associated itself or for which it had made itself responsible by taking no action to remove it after notification of a complaint. Those are certainly matters for argument but they are not decisive in Google Inc’s favour at this stage of proceedings, where we are concerned only with whether the appellant has an arguable case against it as a publisher of the comments in issue.
I do not consider that such an inference could properly be drawn until Google Inc had had a reasonable time within which to act to remove the defamatory comments. It will be recalled that on the judge’s findings the letter of claim containing the complaint about Comment A was received on or about 5 July 2011 (and certainly by 8 July), the complaint about Comment B was introduced in the appellant’s response to Google Inc on 8 July, and the complaint about Comment D was introduced on 22 July. The letter of claim was forwarded to the blogger on 11 August and the material was all removed on 14 August. That means that in relation to Comments A and B, in particular, a period of over five weeks elapsed between notification and removal. In the context of the defence under section 1 of the 1996 Act, considered below, Eady J described Google Inc’s response as somewhat dilatory but not outside the bounds of a reasonable response. Whilst I accept the judge’s assessment in the context of the statutory defence, it is in my view open to argument that the time taken was sufficiently long to leave room for an inference adverse to Google Inc on Byrne v Deane principles.
The period during which Google Inc might fall to be treated on that basis as a publisher of the defamatory comments would be a very short one, but it means that the claim cannot in my view be dismissed on the ground that Google Inc was clearly not a publisher of the comments at all.
The defence under section 1 of the 1996 Act

I therefore turn to consider the defence under section 1 of the 1996 Act. That section provides:
“(1) In defamation proceedings a person has a defence if he shows that –
(a)    he was not the author, editor or publisher of the statement complained of,
(b)    he took reasonable care in relation to its publication, and
(c)    he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement.
(2) For this purpose ‘author’, ‘editor’ and ‘publisher’ have the following meanings, which are further explained in subsection (3) –
‘author’ means the originator of the statement, but does not include a person who did not intend that his statement be published at all;
‘editor’ means a person having editorial or equivalent responsibility for the content of the statement or the decision to publish it; and
‘publisher’ means a commercial publisher, that is, a person whose business is issuing material to the public, or a section of the public, who issues material containing the statement in the course of that business.
(3) A person shall not be considered the author, editor or publisher of a statement if he is only involved –
(a)    in printing, producing, distributing or selling printed material containing the statement;
(b) in processing, making copies of, distributing, exhibiting or selling a film or sound recording (as defined in Part I of the Copyright, Designs and Patents Act 1988) containing the statement;
(c)    in processing, making copies of, distributing or selling any electronic medium in or on which the statement is recorded, or in operating or providing any equipment, system or service by means of which the statement is retrieved, copied, distributed or made available in electronic form;
(d)    as the broadcaster of a live programme containing the statement in circumstances in which he has no effective control over the maker of the statement;
(e)    as the operator of or provider of access to a communications system by means of which the statement is transmitted, or made available, by a person over whom he has no effective control.
In a case not within paragraphs (a) to (e) the court may have regard to those provisions by way of analogy in deciding whether a person is to be considered the author, editor or publisher of a statement.
(4) Employees or agents of an author, editor or publisher are in the same position as the employer or principal to the extent that they are responsible for the content of the statement or the decision to publish it.
(5) In determining for the purposes of this section whether a person took reasonable care, or had reason to believe that what he did caused or contributed to the publication of a defamatory statement, regard shall be had to –
(a)    the extent of his responsibility for the content of the statement or the decision to publish it,
(b)    the nature or circumstances of the publication, and
(c)    the previous conduct or character of the author, editor or publisher.”
It will be seen that the conditions in subsection (1) are cumulative. Eady J held at [42]-[51] that all three conditions were satisfied in this case.
As to subsection (1)(a), he held that Google Inc was not a “publisher” for these purposes even if, contrary to his primary conclusion, it was to be treated at common law as having been a publisher of the defamatory comments. It did not come within the definition of “commercial publisher” within subsection (2) since in operating the Blogger service it did not itself issue material to the public or a section of the public and, specifically, it did not issue material containing the statements complained of. Eady J also drew support from subsection (3)(e), taking the view that Google Inc could accurately be characterised as providing access to a communications system by means of which the statements were transmitted or made available by a person over whom it had no effective control: by “effective control” it was likely that the draftsman had in mind effective day-to-day control rather than the possibility of intervention in reliance on a contractual term about the permitted content of a web page.
I see no reason to disagree with the judge’s conclusion on that point. In particular, I do not think that Google Inc can sensibly be said to have “issued” the defamatory comments even if it was involved in their publication in a way capable of attracting liability at common law. Its involvement was of a kind analogous to, if not identical to, that described in subsection (3)(e). I share the judge’s view that the existence of a contractual term about the content of blogs is not sufficient to give it “effective control” over the person who posted the defamatory comments.
As to the conditions in subsection (1)(b) and (c), in my judgment they are plainly satisfied in relation to the period prior to notification of the complaint. There is no basis for concluding in relation to that period that Google Inc failed to take reasonable care in relation to publication of the comments or that it knew or had reason to believe that it caused or contributed to their publication. Greater difficulty arises, however, in relation to the application of the conditions to continued publication of the comments after Google Inc had notice of their allegedly defamatory content.
Thus, the relevant question in relation to subsection (1)(b) is whether Google Inc took reasonable care in relation to the continued publication of the comments. Eady J referred to the submissions of counsel for Google Inc that the company took reasonable care in relation to the appellant’s complaint when it passed the complaint on to the blogger and that this was a proportionate response. The judge held at [47]:
“One could certainly say that the response was somewhat dilatory, but I would not consider it, in all the circumstances of this case, to be outside the bounds of a reasonable response”.
This may have been a generous view but I am not persuaded that it was wrong. The factors in subsection (5), to which regard must be had in determining whether Google Inc took reasonable care, tell in its favour: the company had no responsibility for the content of the comments or the decision to publish them; the circumstances of publication include the vast number of blogs that are hosted on Blogger, which may be said to justify a longer response time; and there is no evidence of anything in the previous conduct of the particular blogger or of those who posted the comments that might have called for speedier action to be taken. The situation is distinguishable from that which caused Morland J to hold in Godfrey v Demon Internet that subsection (1)(b) posed an insuperable difficulty for the defendants since “after receipt of the plaintiff’s fax, the defendants knew of the defamatory posting but chose not to remove it from their … news servers”: it is clear why, in the absence of any steps at all, the judge in that case did not think that reasonable care had been exercised.
The relevant question in relation to subsection (1)(c) is whether it can be said that in the period after notification of the complaint Google Inc did not know, and had no reason to believe, that what it did caused or contributed to the publication of a defamatory statement. The judge’s reasoning on this was very brief. He said at [49] that once the complaint in respect of a relevant comment was notified, Google Inc would have had reason to believe that the comment was defamatory, but that this was “far from saying … that Google Inc would have known, or had reason to believe, that it had done anything to cause or contribute to the publication of any of these statements”. But the very considerations that lead me to conclude that Google Inc arguably became a publisher of the defamatory comments on Byrne v Deane principles also tend towards the conclusion that following notification it knew or had reason to believe that what it did caused or contributed to the continued publication of the comments. The judge in Davison v Habeeb and Others, at [46], thought it arguable in that case that at some point after notification Google Inc knew or had reason to believe that its continued hosting of the material in question caused or contributed to the publication of a defamatory statement. In my view the same can be said in the present case.
Mr White QC submitted that Eady J appeared to have had in mind what was said in Milne v Express Newspapers [2005] 1 WLR 772 about the similar language in section 4(3) of the 1996 Act, to the effect that an offer to make amends under section 2 is a defence unless the person by whom the offer was made “knew or had reason to believe” that the statement complained of (a) referred to the aggrieved party or was likely to be understood as referring to him, and (b) was false and defamatory of that party. The court held in that case that a person knew or had reason to believe that a statement was false if he either knew that it was false or was reckless as to whether it was false, in the sense of not considering or caring whether it was true or not. Eady J made reference to that decision when finding in Bunt v Tilley, at [61], that the condition in subsection (1)(c) was satisfied in relation to one of the ISPs because the email sent to it by the complainant “did not effectively put [it] on notice, and its staff were given no reason to believe that they were causing or contributing to the publication of the postings complained of”. That finding turned, however, on the particular terms of the email in question, and it is difficult to read into the judge’s reasoning in the present case any implied reference either to what he said on this point in Bunt v Tilley or to the decision or reasoning in Milne v Express Newspapers. In any event this line of reasoning does not appear to me to provide a satisfactory answer to the concern I have expressed about the judge’s view of subsection (1)(c) in the present case.
In the light of that concern about subsection (1)(c) I am not satisfied that, if Google Inc were found to be a publisher of the defamatory comments on Byrne v Deane principles, section 1 of the 1996 Act would provide it with an unassailable defence.
For that reason it is necessary to move to the next issue considered by the judge, namely the question whether any potential liability on the part of Google Inc was sufficient to justify the maintenance of the proceedings against it. The judge appeared to treat this as a subsidiary point under his consideration of the statutory defence, but it is in truth a distinct issue which assumes real importance in this case if I am correct in the conclusions I have reached so far.
“Real and substantial tort”

At [50] of his judgment, Eady J accepted an argument by counsel for Google Inc that the period between notification of the complaint and removal of the offending blog was so short as to give rise to any potential liability on the part of Google Inc only for a very limited period, such that the court should regard it as so trivial as not to justify the maintenance of the proceedings. The judge said that, to adopt the words in Jameel (Yousef) v Dow Jones & Co Inc (cited above), “the game would not be worth the candle”.
In Jameel (Yousef) the Court of Appeal upheld an application to strike out as an abuse of process defamation proceedings against the publisher of a US newspaper in respect of an article posted on an internet website in the USA which was available to subscribers in England but had been the subject of minimal publication within this jurisdiction. The court considered that the principles relevant to a strike-out application overlapped with those relevant to an application to set aside permission to serve out of the jurisdiction. It was in the latter context that the question whether “a real and substantial tort has been committed within the jurisdiction” had been developed, but the court considered that the question whether a substantial tort had been committed in the jurisdiction was also relevant to an application to strike out as abuse of process. It held that keeping a proper balance between the article 10 right of freedom of expression and the protection of individual reputation required the court to bring to a stop, as an abuse of process, defamation proceedings that were not serving the legitimate purpose of protecting the claimant’s reputation, which included compensating the claimant only if that reputation had been unlawfully damaged. The court went on to consider whether, on the facts of the case before it, vindication of the claimant’s reputation justified the continuance of the action. It concluded:
“69. If the claimant succeeds in this action and is awarded a small amount of damages, it can perhaps be said that he will have achieved vindication for the damage done to his reputation in this country, but both the damage and the vindication will be minimal. The costs of the exercise will have been out of all proportion to what has been achieved. The game will not merely not have been worth the candle, it will not have been worth the wick.
70. If we were considering an application to set aside permission to serve these proceedings out of the jurisdiction we would allow that application on the basis that the five publications that had taken place in this jurisdiction did not, individually or collectively, amount to a real and substantial tort. Jurisdiction is no longer in issue, but subject to the effect of the claim for an injunction that we have yet to consider, we consider for precisely the same reason that it would not be right to permit this action to proceed. It would be an abuse of the process to continue to commit the resources of the English court, including substantial judge and possibly jury time, to an action where so little is now seen to be at stake ….”
In my judgment, Eady J was plainly right to conclude that the application in the present case to set aside permission to serve out of the jurisdiction should be allowed for like reasons. The allegedly defamatory comments were posted between 28 and 30 April, soon after the initial blog of 27 April. By the very nature of a blog, they will have been followed by numerous other comments in the chain and, whilst still accessible, will have receded into history. As I have indicated, the earliest point at which Google Inc could have become liable in respect of the comments would be some time after notification of the complaint in respect of them. But it is highly improbable that any significant number of readers will have accessed the comments after that time and prior to removal of the entire blog. It follows, as the judge clearly had in mind, that any damage to the appellant’s reputation arising out of continued publication of the comments during that period will have been trivial; and in those circumstances the judge was right to consider that “the game would not be worth the candle”. I do not accept Mr Busuttil’s submission that various other features of the claim, including the fact that the appellant’s name is relatively uncommon and distinctive in this jurisdiction, undermined the judge’s conclusion.
It follows that, despite the fact that I have reached certain conclusions favourable to the appellant on the previous issues, this appeal must in my view fail.
In those circumstances, although the issue was the subject of detailed argument before us, it is unnecessary to consider whether Google Inc would have a defence under regulation 19 of the 2002 Regulations.
Lord Justice Sullivan :

I agree.
Master of the Rolls :

I also agree.
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Vyakti Vikas Kendra India Public Charitable Trust Vs


Type of online publisher:
SexSearch.com, adult dating site
Publisher’s Role in Third Party Content:
Reserved the “right to modify the content of profiles when they do not meet the profile guidelines”
CDA § 230 applicable?:

The plaintiff in this case was charged criminally after he had consensual sex with a minor he met through SexSearch.com, though her profile stated she was 18 and he believed the website “warranted ‘all persons within this site are 18+.'” He sued the website, attempting to circumvent CDA § 230 by objecting not to the content the minor posted but simply to her presence on the website. The court found that though these claims were “artfully pled,” they boiled down to an argument that SexSearch.com was liable for inadequate monitoring, screening and deletion of content. As such, the allegations were barred by § 230.

The court also rejected the plaintiff’s argument that CDA applies only to defamation cases, citing courts’ wide “consensus that its grant of immunity is broad and far reaching

EE.UU.: Green v. America Online, 318 F.3d 465 (3d. Cir. 2003)

Type of online publisher:
America Online (AOL), online chat room
Publisher’s Role in Third Party Content:
Transmitted messages between third parties
CDA § 230 applicable?:

In the Third Circuit’s first CDA § 230 case, the plaintiff sued AOL after two other AOL users sent him defamatory messages and a virus-like “punter” program through an AOL chat room. But the court ruled that the program fell within the definition of “information” provided by a third party under CDA § 230, and that AOL had not waived its § 230 immunity through its Membership Agreement (which stipulated that AOL did not assume responsibility for third-party content).

The court also rejected the plaintiff’s claims that CDA § 230 violated the First Amendment and exceeded Congress’s power under the Commerce Clause.

Fuente: https://www.eff.org/issues/cda230/cases/parker-v-google-inc


Type of online publisher:
Google, search engine
Publisher’s Role in Third Party Content:
Archived; cached; made content available via search
CDA § 230 applicable?:

An author sued Google for defamation, invasion of privacy and negligence because Google archived defamatory messages posted about him on a third-party website and displayed “an authorized biography of Plaintiff” when his name was entered as a Google search query. The court rejected the claims: “It is clear that § 230 was intended to provide immunity for service providers like Google on exactly the claims Plaintiff raises here.”

EE.UU.: Johnson v. Arden, 614 F. 3d 785 (8th Cir. 2010)

JOHNSON v. ARDEN No. 09-2601.

614 F.3d 785 (2010)

Susan JOHNSON; Robert Johnson; Cozy Kittens Cattery LLC, Appellants, v. Elizabeth ARDEN, dba Complaints-Board.com; Michelle Reitenger; ComplaintsBoard.com, InMotion Hosting Inc.; Melanie Lowry; Kathleen Heineman, Appellees.

United States Court of Appeals, Eighth Circuit.
Filed: August 4, 2010.
Stacey R. Gilman, Kansas City, MO, on the brief, for appellee Kathleen Heineman.
Before RILEY, Chief Judge, SMITH and SHEPHERD, Circuit Judges.

SMITH, Circuit Judge.

Susan and Robert Johnson filed a state civil suit making multiple claims against several defendants as a result of allegedly defamatory statements posted on an internet discussion board. The defendants removed the case to federal court. The original complaint included six defendants; however, the Johnsons located and served only InMotion Hosting, Inc. (“InMotion”), Melanie Lowry, and Kathleen Heineman.

The district court2 dismissed the claims against InMotion with prejudice, finding that the Communications Decency Act (CDA) of 1996, 47 U.S.C. § 230(c)(1) and (e)(3) protects InMotion. The court dismissed the claims against Lowry and Heineman without prejudice, finding that Lowry and Heineman had insufficient contacts with the State of Missouri to be subjected to personal jurisdiction in Missouri. Finally, the district court set aside a state court default judgment against Lowry under Federal Rule of Civil Procedure 60(b). On appeal, the Johnsons argue that the district court erred in dismissing the claims against InMotion, Heineman, and Lowry and erred in setting aside the default judgment against Lowry. For the reasons stated below, we disagree and affirm.

I. Background

The Johnsons reside in Unionville, Missouri, where they own and operate the exotic cat breeding business known as the Cozy Kitten Cattery. The Cozy Kitten Cattery is a Missouri limited liability company formed in 2007. Its principal office and place of business is located in Missouri, and the Johnsons are its sole members. Around December 2004, the Johnsons obtained a registered federal trademark and service mark for “Cozy Kitten Cattery.” The Johnsons operate their cat breeding business under that trademark and licensed the use of that trademark and service mark to Cozy Kitten Cattery, LLC. The Johnsons advertise their business on the internet and

[614 F.3d 788]

have a website with the web address http://www.CozyKittens.com.Someone posted several allegedly defamatory statements about the Cozy Kitten Cattery on the interactive website http://www.ComplaintsBoard.com. In response, the Johnsons and Cozy Kittens Cattery filed suit against Elizabeth Arden d/b/a http://www.ComplaintsBoard.com, Michelle Reitenger, http://www.ComplaintsBoard.com, InMotion, Lowry, and Heineman in Putnam County, Missouri. Counts I, II and III allege that all six defendants conspired to use http://www.ComplaintsBoard.com to post false statements about the Johnsons, including statements that the Johnsons kill cats, the Johnsons “rip off” cat breeders, the Johnsons steal kittens, the Johnsons’ cats and kittens are infected, and the Johnsons are con artists. The Johnsons assert that they requested all defendants to remove the statements but that the statements were not removed for more than 48 hours. The Johnsons assert that they suffered lost sales of kittens and cats, lost revenue and lost goodwill and will continue to suffer damages because of the statements posted on the interactive website.

The Johnsons assert that InMotion, Lowry, and Heineman were all served with the Summons and Petition/Complaint, although all three dispute service. The Johnsons were unable to locate or serve defendants Elizabeth Arden d/b/a www. ComplaintsBoard.com, Michelle Reitenger or http://www.ComplaintsBoard.com.

Heineman, Lowry, and InMotion moved in district court to dismiss the action based on lack of personal jurisdiction and insufficient service of process. Heineman and InMotion also asserted improper venue as an additional ground for dismissal.

A. Kathleen Heineman

Heineman is a resident of the State of Colorado and has been since 1981. Heineman is a cat breeder and also works as an accountant. In both capacities, she works out of her home in Colorado. She maintains no offices in Missouri, owns no property in Missouri and does not pay taxes in Missouri. She also alleges that she does not own any domain name registrations and does not own or operate any website. However, the website, http://www.Boutique Kittens.com, and the related cat breeding and selling business are licensed by the State of Colorado to Heineman, and thus for the purpose of this appeal, we will assume that Heineman owns the website in question.

The Johnsons assert that Heineman sells cats and kittens throughout the United States, including the State of Missouri, while advertising on the internet using the web address http://www.BoutiqueKittens.com. The Johnsons allege that Heineman advertises and sells cats and kittens under the name “Cozy Kittens and Cuddly Cats.”

Heineman had a limited business relationship with the Johnsons, which ended in March 2006. The Johnsons never employed Heineman or paid her a salary. She provided administrative assistance to the Johnsons from her home office in Colorado, including proofreading services and other miscellaneous work on an intermittent basis, such as helping them to acquire cats.

Between 2002 and 2006, the Johnsons contend that Heineman purchased about 16 cats for them from breeders throughout the United States. Heineman did not profit from the purchase of these cats. Some of these cats were shipped to Heineman in Colorado and then eventually shipped to Susan Johnson in Missouri; other cats were picked up from the sellers directly by the Johnsons or their relatives. In 2002, Heineman twice delivered cats to the Johnsons in Missouri. During the course of their relationship, the Johnsons

[614 F.3d 789]

contend that they shipped seven cats to Heineman and charged her only for their out-of-pocket expenses.In the course of their relationship, Heineman also purchased advertising space from the Johnsons on http://www.Cozy Kittens.com for a fee of $100 per kitten advertised. The Johnsons’ website then listed Heineman’s email address as the contact email for persons interested in those cats. These advertisements were not targeted to Missouri residents, and Heineman did not place any cats or kittens or do any other business in Missouri. Heineman advertised approximately 50 cats in this manner. Heineman asserts that she has not posted or authorized anyone else to post anything about the Johnsons on http://www.ComplaintsBoard.com or on any other website.

B. InMotion Hosting, Inc.

InMotion is a California corporation and maintains its principal place of business there. InMotion, as an internet service provider (ISP), only hosted the www. ComplaintsBoard.com website. InMotion does not operate http://www.ComplaintsBoard. com or create any of its content. InMotion does not monitor or control the content of its customer’s websites, including http://www.ComplaintsBoard.com.

The website http://www.ComplaintsBoard.com is published worldwide on the internet. The website is interactive, permitting and encouraging individuals to post complaints about businesses and business owners. Individuals seeking to post complaints on the website are required to register with the website and provide identifying information, such as their name and email address.

C. Melanie Lowry

Lowry resides in California and does not own any property in Missouri, does not have any bank accounts or telephone listings in Missouri, has never paid taxes in Missouri, and has never transacted business in Missouri. Lowry asserts that she has never done business with the Johnsons, does not know them, and has only spoken to Susan Johnson one time on the telephone—a call initiated by Susan Johnson.

The Johnsons assert that Lowry’s postings on http://www.ComplaintsBoard.com included statements that Susan and Robert Johnson had sold a breeder cat without providing the papers, offered a refund but refused to pay it, stolen money from their customers, and fed their cats Tylenol, causing them to suffer horrible deaths and pre-death injuries.

The record contains one alleged posting by Lowry on http://www.ComplaintsBoard.com. That alleged posting does not mention Missouri, and there is no other evidence in the record indicating that the focal point of this particular posting, or any of Lowry’s other postings, was Missouri.

The Johnsons filed a state court complaint against Lowry, who they assert was properly served on July 17, 2008. Lowry did not respond or file a pleading. A Missouri default judgment was filed against Lowry on September 22, 2008. Lowry filed a motion to set aside the judgment on November 12, 2008.

D. Procedural History

The defendants removed the case to federal court based on diversity of citizenship. Heineman filed a motion to dismiss contending that she was not properly served and that the district court had improper venue and lacked personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2). The district court granted Heineman’s motion for lack of personal jurisdiction. The Johnsons then filed a motion for an order of default against InMotion, which had not yet filed any pleadings

[614 F.3d 790]

in the district court. The district court denied the motion.InMotion then filed its motion to dismiss under Rule 12(b), contending that it was not properly served, the district court did not have venue, the complaint failed to state a claim for relief, it had insufficient contacts with Missouri to be sued there, and Missouri was an inconvenient forum. InMotion did not raise the CDA as a defense. The district court raised the CDA sua sponte in its order granting InMotion’s motion to dismiss.

Finally, Lowry, pro se, filed a two-page letter/motion moving to dismiss the complaint against her, claiming that she was not properly served and that the district court lacked personal jurisdiction because she had insufficient contacts with the State of Missouri. In the same motion Lowry moved to set aside the default judgment on liability pending against her.

The district court entered an order dismissing the claims against InMotion with prejudice and dismissing the claims against Lowry and Heineman without prejudice. The district court found that Lowry and Heineman had insufficient contacts with the State of Missouri to be subjected to personal jurisdiction there and that the CDA barred claims against InMotion. The district court also set aside the state court default judgment against Lowry under Federal Rule of Civil Procedure 60(b) but made no specific finding in support of that ruling.

II. Discussion

On appeal, the Johnsons argue that the district court erred in (1) dismissing the claims against InMotion, after finding that InMotion was immune from suit under the CDA; (2) dismissing the claims against Heineman for lack of personal jurisdiction; (3) dismissing the claims against Lowry for lack of personal jurisdiction; and (4) abused its discretion in setting aside the default judgment against Lowry.

A. Communications Decency Act

The Johnsons first argue that the district court erroneously dismissed their claims after concluding InMotion is immune under the CDA. The Johnsons contend that 47 U.S.C. § 230(c)(1) and (e)(3) merely provide that a provider of internet services shall not be treated as the publisher or speaker of information on the internet provided by another party but does not immunize a provider from suit. The Johnsons assert that Missouri law provides for joint liability where a wrong is done by concert of action and common intent and purpose. According to the Johnsons, the CDA would only bar actions against website operators deemed to be the “publisher or speaker” of defamatory material.

InMotion responds that the district court correctly found that InMotion was immune from suit under the CDA. Additionally, InMotion asserts that it maintained no control and had no influence over the content that the Johnsons alleged was posted on http://www.ComplaintsBoard.com by unrelated third parties. Because of this, InMotion maintains, it could not have “acted in concert” or “intentionally inflicted emotional distress” in a manner that caused any damage to the Johnsons.

This case presents an issue of first impression for this court, as we have not previously interpreted § 230(c). “Statutory interpretation is a question of law that we review de novo.” Minn. Supply Co. v. Raymond Corp., 472 F.3d 524, 537 (8th Cir.2006). The CDA states 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,” 47 U.S.C. § 230(c)(1), and expressly preempts

[614 F.3d 791]

any state law to the contrary, id. § 230(e)(3).3 The CDA defines an “information content provider” as “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the internet or any other interactive computer service.” Id. at § 230(f)(3).Read together, these provisions bar plaintiffs from holding ISPs legally responsible for information that third parties created and developed. See Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1162-64 (9th Cir.2008) (holding that CDA immunity did not apply to website that was designed to force subscribers to divulge protected characteristics, but that CDA immunity did apply to the “Additional Comments” section of the website where the information was created by third parties and not required by the website ISP). “Congress thus established a general rule that providers of interactive computer services are liable only for speech that is properly attributable to them.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 254 (4th Cir.2009).

“The majority of federal circuits have interpreted the CDA to establish broad `federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.'” Almeida v. Amazon.com, Inc., 456 F.3d 1316, 1321 (11th Cir.2006) (quoting Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir.1997)). The district court, following majority circuit precedent, held that § 230(c)(1) blocks civil liability when web hosts and other ISPs refrain from filtering or censoring the information that third parties created on their sites. Green v. Am. Online, 318 F.3d 465, 471 (3d Cir.2003) (holding that under the CDA the defendant ISP is not liable for failing to monitor, screen, or delete allegedly defamatory content from its site).

It is undisputed that InMotion did not originate the material that the Johnsons deem damaging. InMotion is not a “publisher or speaker” as § 230(c)(1) uses those terms, therefore, the district court held that InMotion cannot be liable under any state-law theory to the persons harmed by the allegedly defamatory material. Five circuit courts agree. See Universal Commc’n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 419 (1st Cir.2007) (affirming dismissal of a claim brought by a public-traded company against an internet message board operator for allegedly false and defamatory postings by pseudonymous posters); Batzel v. Smith, 333 F.3d 1018 1032-33 (9th Cir.2003) (holding that even if operator of internet services could have reasonably concluded that the information was sent for internet publication, he was immunized from liability for the defamatory speech as a “provider or user of interactive computer services” under the CDA); Green v. Am. Online, 318 F.3d at 471; Ben Ezra, Weinstein & Co. v. Am. Online, Inc., 206 F.3d 980, 986 (10th Cir.2000) (finding that defendant ISP was immune to the defamation claim under the CDA when it made its own editorial decisions with respect to third-party information published on its website); Zeran, 129 F.3d at 332-34 (holding that the CDA barred claims against defendant ISP that allegedly delayed in removing defamatory messages posted by unidentified third party, refused to post retractions of those messages, and

[614 F.3d 792]

failed to screen for similar postings thereafter).District courts in this circuit have reached the same conclusion. See, e.g., PatentWizard, Inc. v. Kinko’s, Inc., 163 F.Supp.2d 1069, 1072 (D.S.D.2001) (holding that ” § 230 of the Communication[s] Decency Act errs on the side of robust communication and prevents the plaintiffs from moving forward with their claims” that a company that allowed users to access the internet via its computers could be held liable for the actions of one of those users).

The Johnsons cite Chicago Lawyers’ Committee for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666 (7th Cir.2008), for support. Craigslist held that ” § 230(c) as a whole cannot be understood as a general prohibition of civil liability for web-site operators and other online content hosts….” Id. at 669. However, while the Seventh Circuit construes § 230(c)(1) to permit liability for ISPs, it limited that liability to ISPs that intentionally designed their systems to facilitate illegal acts, such as stealing music. Id. at 670 (citing Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 125 S.Ct. 2764, 162 L.Ed.2d 781 (2005); In re Aimster Copyright Litig., 334 F.3d 643 (7th Cir.2003)). Specifically, Craigslist held that an ISP could not be held liable for allowing third parties to place ads in violation of the Fair Housing Act on its website if the ISP did not induce the third party to place discriminatory ads. Id. at 671-72.

The record contains no evidence that InMotion designed its website to be a portal for defamatory material or do anything to induce defamatory postings. We conclude that the CDA provides ISPs like InMotion with federal immunity against state tort defamation actions that would make service providers liable for information originating with third-party users of the service such as the other defendants in this case.

Therefore we decline the Johnsons’ invitation to construe § 230(c)(1) as permitting liability against InMotion for material originating with a third party. See Zeran, 129 F.3d at 330 (stating that ” § 230 precludes courts from entertaining claims that would place a computer service provider in a publisher’s role. Thus, lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions—such as deciding whether to publish, withdraw, postpone or alter content—are barred”).

Because InMotion was merely an ISP host and not an information content provider, the Johnsons’ claims against InMotion fail as a matter of law under § 230(c)(1), and the district court properly dismissed the claims.

B. Personal Jurisdiction

1. Kathleen Heineman

The Johnsons next argue that the district court erred by dismissing the claims against Heineman for lack of personal jurisdiction. The Johnsons maintain that Heineman purposefully directed internet activities at Missouri citizens. The Johnsons also assert that the record establishes personal jurisdiction under the Missouri long arm statute.

Heineman responds that the Johnsons cannot challenge the district court’s ruling because they waived any opposition by not filing a timely objection. In the alternative, Heineman argues that the district court correctly ruled it lacked personal jurisdiction over her. According to Heineman, the record does not reflect that she had systematic or continuous contacts with Missouri or, even if she did, that they were aimed or purposefully directed at Missouri.

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First, as a threshold question, we address whether the Johnsons may challenge the district court’s decision to grant Heineman’s motion. Heineman contends that the Johnsons have waived any challenge to the district court’s order dismissing her from the lawsuit because they failed to file a timely opposition to the motion to dismiss at the district court.Heineman filed a motion to dismiss all counts against her, and the Johnsons did not file a timely response. Instead, two weeks after their deadline passed, the Johnsons filed a motion for additional time. The Johnsons then filed a response to Heineman’s motion before the district court ruled on the Johnsons’ motion for additional time. An affidavit from Susan Johnson was attached with the response. The district court denied the Johnsons’ motion for additional time and struck the response from the record. The district court subsequently granted Heineman’s motion to dismiss, finding that the Johnsons did not respond in a timely manner, but nevertheless, “out of caution,” the district court stated that it considered Susan Johnson’s affidavit before ruling on Heineman’s motion to dismiss.

“It is a well-established rule that issues not raised in the trial court cannot be considered by this court as a basis for reversal.” Edwards v. Hurtel, 724 F.2d 689, 690 (8th Cir.1984) (per curiam). “The primary purpose of the rule is promptly to inform the district judge of possible errors, and thus give the judge an opportunity to reconsider the ruling and make desired changes.” Id. This rule is followed “in all but exceptional cases where the obvious result would be a plain miscarriage of justice or inconsistent with substantial justice.” Kelley v. Crunk, 713 F.2d 426, 427 (8th Cir.1983) (per curiam).

In Shanklin v. Fitzgerald, a plaintiff filed certain exhibits without properly authenticating the exhibits. 397 F.3d 596, 601 (8th Cir.2005). The defendant made a motion to strike the exhibits, and the plaintiff did not oppose. Id. The district court granted the motion to strike, and on appeal the plaintiff contended that the district court erred in striking the motion. Id. We held that “[a]bsent exceptional circumstances, we cannot consider issues not raised in the district court.” Id.

The Johnsons distinguish Shanklin by pointing out that the district court considered the affidavit from Susan Johnson in making a ruling on the motion to dismiss, while the Shanklin court did not review any documents. Also, the Johnsons did attempt to oppose the motion to dismiss, although in an untimely fashion. In Shanklin the plaintiff did not even attempt to file an out-of-time opposition. We find merit in this argument, because the district court acknowledged that it considered some opposition to the motion—Susan Johnson’s affidavit—which the Johnsons clearly submitted for the purpose of opposing the motion to dismiss. Therefore, the trial court had an opportunity to “reconsider” the issue of whether to dismiss knowing that the Johnsons opposed dismissal. In fact, in the district court’s order, it specifically stated that “out of caution, and because the Court must construe the jurisdictional facts in the light most favorable to the Johnsons, the Court has considered the affidavit of Sue Johnson….” Therefore, we hold that the Johnsons sufficiently preserved their argument for appeal.

Grants of motions to dismiss for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2) are reviewed de novo. First Nat’l Bank of Lewisville, Ark. v. First Nat’l Bank of Clinton, Ky., 258 F.3d 727, 729 (8th Cir.2001). “If the District Court does not hold a hearing and instead relies on pleadings and affidavits, then we must look at the facts in the light most favorable to the nonmoving party

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and resolve all factual conflicts in favor of that party.” Epps v. Stewart Info. Serv. Corp., 327 F.3d 642, 646-47 (8th Cir.2003).In Missouri, to obtain personal jurisdiction over a non-resident defendant, “the plaintiff must make a prima facie showing that (1) the cause of action arose out of an activity covered by Missouri’s long-arm statute, … and (2) the defendant had sufficient minimum contacts with Missouri to satisfy the requirements of due process.”Berry v. Berry (In re Marriage of Berry), 155 S.W.3d 838, 840 (Mo.Ct.App.2005) (quoting Wray v. Wray, 73 S.W.3d 646, 649 (Mo.Ct.App.2002)). “The evidentiary showing required at the prima facie stage is minimal….” Willnerd v. First Nat’l Neb., Inc., 558 F.3d 770, 778 (8th Cir.2009) (internal quotations and citation omitted).

Missouri’s long-arm statute, Mo.Rev. Stat. § 506.500, confers jurisdiction to the extent allowed by the Due Process Clause.4 State ex rel Deere and Co. v. Pinnell, 454 S.W.2d 889, 892 (Mo.1970). Under this standard, “[p]ersonal jurisdiction exists only if the contacts between the defendant and the forum state are sufficient to establish that the defendant has purposefully availed himself of the benefits and protections of the forum state.” Johnson v. Woodcock, 444 F.3d 953, 955 (8th Cir.2006). In Aftanase v. Economy Baler Co., we set forth five factors courts must consider when determining whether there are sufficient minimum contacts to confer jurisdiction. 343 F.2d 187, 197 (8th Cir. 1965). These factors include: (1) the nature and quality of the contacts with the forum state; (2) the quantity of the contacts; (3) the relationship of the cause of action to the contacts; (4) the interest of Missouri in providing a forum for its residents; and (5) the convenience or inconvenience to the parties. Id. The first three factors are primary factors, and the remaining two factors are secondary factors. Id. The third factor distinguishes whether the jurisdiction is specific or general. Digi-Tel Holdings, Inc. v. Proteq Telecomm., Ltd., 89 F.3d 519, 523 n. 4 (8th Cir.1996). We must look at all of the factors in the aggregate and examine the totality of the circumstances in making a personal-jurisdiction determination. Northrup King Co. v. Compania Productora Semillas Algodoneras, S.A., 51 F.3d 1383, 1388 (8th Cir.1995).

The minimum contacts necessary for due process may be the basis for either “general” or “specific” jurisdiction. Davis v. Baylor Univ., 976 S.W.2d 5, 12 (Mo.Ct. App.1998). A court obtains general jurisdiction “against a defendant who has `continuous and systematic’ contacts with the forum state, even if the injuries at issue in the lawsuit did not arise out of the defendant’s activities directed at the forum.” Dever v. Hentzen Coatings, Inc., 380 F.3d 1070, 1073 (8th Cir.2004) (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415-16, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)). Specific jurisdiction over a defendant is exercised when a state asserts personal jurisdiction over a nonresident defendant that “`has purposefully directed [its] activities at [Missouri] residents'” in a suit that “`arises out of’ or `relates to’ these activities.” Lakin v. Prudential Sec., Inc., 348 F.3d 704, 707 (8th Cir.2003) (quoting Burger King Corp. v.

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Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)).

a. General Jurisdiction

Heineman’s contacts with the State of Missouri—which must be found to be “continuous and systematic” before general jurisdiction is conferred—may be summarized as follows: She purchased cats in Missouri for delivery to the Johnsons; personally delivered cats to the Johnsons in Missouri on two separate occasions; conducted her cat breeding and sale business with the Johnsons, using the Johnsons’ website—operated from the Johnsons’ location in Unionville, Missouri—for a period of about four years, which ended two years before this lawsuit was initiated; and engaged in numerous telephone conversations and email exchanges with the Johnsons during that four-year period.

Heineman is a citizen and resident of Colorado who sells cats and kittens throughout the United States, and advertises her business on the website www. BoutiqueKittens.com. The Johnsons and Heineman first made contact when Heineman purchased a cat from the Johnsons in late 2001 or early 2002. Around April 2002, they began a business relationship that lasted until March 2006. During this time, Heineman provided the Johnsons administrative assistance with their website, http://www.CozyKittens.com. She also purchased advertising space for cats she sold from Colorado on the Johnsons’ website, advertising approximately 50 cats thereon. Between 2002 and 2006, Heineman purchased about 16 cats for the Johnsons from breeders throughout the United States. These cats were generally shipped to Colorado, then eventually shipped to Missouri. Heineman never worked as an employee of the Johnsons.

Applying the Aftanase factors, see Lakin, 348 F.3d at 711, we do not find sufficient contacts between Heineman and Missouri to support general jurisdiction. Heineman did business almost exclusively from her Colorado home, except for infrequent trips to Missouri to deliver cats. See Johnson, 444 F.3d at 956-57 (holding that evidence that nonresident party collaborated with a resident and had a publishing relationship with another did not establish general jurisdiction); see also Helicopteros, 466 U.S. at 418, 104 S.Ct. 1868 (“[W]e hold that mere purchases, even if occurring at regular intervals, are not enough to warrant a State’s assertion of in personam jurisdiction over a nonresident [party] in a cause of action not related to those purchase transactions.”). Heineman’s contact with Missouri was neither continuous nor systematic.

With the Johnsons unable to establish that Heineman had continuous and systematic contacts with Missouri, we turn to the question of specific jurisdiction.

b. Specific Jurisdiction

Specific jurisdiction is proper “only if the injury giving rise to the lawsuit occurred within or had some connection to the forum state, meaning that the defendant purposely directed its activities at the forum state and the claim arose out of or relates to those activities.” Steinbuch v. Cutler, 518 F.3d 580, 586 (8th Cir.2008) (citing Burger King Corp., 471 U.S. at 472, 105 S.Ct. 2174).

The Johnsons’ primary support for specific jurisdiction are two sets of actions that Heineman allegedly undertook—posting defamatory statements on www. ComplaintsBoard.com and using the trademark “Cozy Kittens” on the website www. BoutiqueKittens.com. The trademark claim will be discussed under a Lanham Act analysis. See infra. The question for both sets of actions is whether Heineman “purposefully directed” her internet activities at the State of Missouri.

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When considering the sufficiency of internet contacts under a specific jurisdiction analysis, we have found the Zippo test instructive. Lakin, 348 F.3d at 710-11. In Zippo Mfg. Co. v. Zippo Dot Com, Inc., the court examined the issue of whether a website could provide sufficient contacts for specific personal jurisdiction. 952 F.Supp. 1119, 1124 (W.D.Pa.1997). The court created a “sliding scale” to measure the likelihood of personal jurisdiction. Id. The scale runs from active contract formation and repeated transmission of computer files to mere posting of information on a website. Id. The http://www.ComplaintBoards. com site lands on the “mere posting” end of the scale. Although InMotion represents http://www.ComplaintsBoard.com as an “interactive” website, users may actually only post information. There is no interaction between users and a host computer; the site merely makes information available to other people. The website’s accessibility in Missouri alone is insufficient to confer personal jurisdiction.There are other ways the Johnsons can obtain specific jurisdiction, including employing the Calder effects test. See Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984). “To sustain [their] argument, [the Johnsons] would have to show that [Heineman] knew that `the brunt of the injury would be felt by [them] in the State in which [they] live [] and work[ ]’ and intentionally targeted the forum state.” Steinbuch, 518 F.3d at 586 (quoting Calder, 465 U.S. at 789-90, 104 S.Ct. 1482).

The “effects” test, therefore, provides that

a defendant’s tortious acts can serve as a source of personal jurisdiction only where the plaintiff makes a prima facie showing that the defendant’s acts (1) were intentional, (2) were uniquely or expressly aimed at the forum state, and (3) caused harm, the brunt of which was suffered-and which the defendant knew was likely to be suffered-[in the forum state].Lindgren v. GDT, LLC, 312 F.Supp.2d 1125, 1132 (S.D.Iowa 2004) (internal quotations and citation omitted). We have stated that this test “allows the assertion of personal jurisdiction over non-resident defendants whose acts are performed for the very purpose of having their consequences felt in the forum state.” Dakota Indus., Inc. v. Dakota Sportswear, Inc., 946 F.2d 1384, 1390-91 (8th Cir.1991) (internal quotations and citation omitted). Heineman’s alleged acts were not so performed.

The Johnsons allege that Heineman stated on http://www.ComplaintBoards.com that “Sue Johnson and Cozy Kittens operated from Unionville, Missouri, where they killed cats, sold infected cats and kittens, brutally killed and tortured unwanted cats and operated a `kitten mill’ in Unionville, Missouri.” Although we accept this allegation as true,5 alone, it fails to show that Heineman uniquely or expressly aimed her statements at Missouri. The statements were aimed at the Johnsons; the inclusion of “Missouri” in the posting was incidental and not “performed for the very purpose of having their consequences” felt in Missouri. There is no evidence that the www. ComplaintsBoard.com website specifically targets Missouri, or that the content of Heineman’s alleged postings specifically targeted Missouri.

Additionally, even if the effect of Heineman’s alleged statement was felt in Missouri, we have used the Calder test merely as an additional factor to consider when evaluating a defendant’s relevant contacts

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with the forum state. In Dakota, we declined to grant personal jurisdiction solely on the basis of forum state effects from an intentional tort. Id. at 1391 (“In relying on Calder, we do not abandon the five-part [Aftanase] test. … We simply note that Calder requires the consideration of additional factors when an intentional tort is alleged.”). We therefore construe the Calder effects test narrowly, and hold that, absent additional contacts, mere effects in the forum state are insufficient to confer personal jurisdiction. See Hicklin Eng’g, Inc. v. Aidco, Inc., 959 F.2d 738, 739 (8th Cir.1992) (per curiam). As explained, supra, there are no additional contacts between Heineman and Missouri to justify conferring personal jurisdiction.Posting on the internet from Colorado an allegedly defamatory statement including the name “Missouri” in its factual assertion does not create the type of substantial connection between Heineman and Missouri necessary to confer specific personal jurisdiction.

c. Lanham Act Claims

The Johnsons also challenge the district court’s denial of jurisdiction for the Johnsons’ Lanham Act claim. The Johnsons allege that Heineman violated the Lanham Act, 15 U.S.C. § 1051 et seq.,6 by using the words “Cozy Kittens and Cuddly Cats” to advertise her cat breeding business on http://www.BoutiqueKittens.com. As noted, Heineman denies ownership of this website, but for purposes of our review of a dismissed count, we assume that Heineman owns the site in question.

Here, we do not decide the viability of the Johnsons’ Lanham Act claim on the merits, only whether the district court had jurisdiction to decide the claim. The Missouri long-arm statute confers jurisdiction to Missouri courts for torts committed within Missouri. See Mo.Rev.Stat. § 506.500.

Infringing upon a trademark, as a tort, may be grounds for personal jurisdiction under Missouri’s long-arm statute. Uncle Sam’s Safari Outfitters, Inc. v. Uncle Sam’s Army Navy Outfitters-Manhattan, Inc., 96 F.Supp.2d 919, 921 (E.D.Mo.2000). However, the same “minimum contacts” analysis applies to determine if the allegedly tortious act was committed within Missouri. Id. Heineman, as discussed, does not have sufficient contacts to grant general personal jurisdiction. The Johnsons argue that Heineman sells cats and kittens throughout the United States, including in the State of Missouri via advertising on http://www.BoutiqueKittens.com, thus creating specific personal jurisdiction. However, under Zippo, whether specific personal jurisdiction could be conferred on the basis of an interactive website depends not just on the nature of the website but also on evidence that individuals in the forum state accessed the website in doing business with the defendant. Zippo, 952 F.Supp. at 1125-26. Although www. BoutiqueKittens.com may be characterized as interactive, there is no evidence in the record that Heineman engaged in any transaction or exchange of information with a Missouri resident via http://www.Boutique Kittens.com, or that a Missouri resident ever accessed the website. We decline to confer personal jurisdiction based on only the possibility that a Missouri resident had contact with Heineman through www. BoutiqueKittens.com.

Similarly, the Johnsons have failed to prove that http://www.BoutiqueKittens.com is

[614 F.3d 798]

uniquely or expressly aimed at Missouri; thus Calder provides no support for their Lanham Act claim. For these reasons, as well as the reasons stated supra, Part II.B.1, we hold that Heineman does not have sufficient minimum contacts with Missouri and affirm the district court’s decision to dismiss the Lanham Act claims against Heineman for lack of personal jurisdiction.Because we find there was no personal jurisdiction, we do not reach Heineman’s other issues related to service and venue.

2. Melanie Lowry

a. Personal Jurisdiction

The Johnsons also contend that the district court erred by dismissing their claims against Melanie Lowry for lack of personal jurisdiction because the web activities of Lowry were purposefully directed at the citizens of the State of Missouri. We address this issue with an analysis similar to the one completed above for Heineman.

The only evidence in the record relating to Lowry is an affidavit she attached to her motion to dismiss. In it, Lowry claimed that she has never been to Missouri, does not own any property in Missouri, does not have any bank accounts or telephone listings in Missouri, has never paid taxes in Missouri nor insured a risk in Missouri, and has never knowingly, regularly or continuously transacted business in the State of Missouri. Her affidavit also states that she has never done business with the Johnsons, does not know them, and has only spoken to Susan Johnson one time on the telephone—a call that Johnson initiated. The evidence supporting systematic and continuous contacts between Lowry and Missouri is thus even weaker than that for Heineman. Again applying the Aftanase factors we hold that the district court did not have general jurisdiction over Lowry.

The court also did not have specific jurisdiction over Lowry. Lowry’s alleged activities related to http://www.Complaints Board.com are similar to Heineman’s, except that Lowry did not include any statement related to or mentioning the State of Missouri. No statement of any kind by Lowry was purposefully directed at Missouri. We affirm the district court’s decision to dismiss the Johnsons’ claims against Lowry for lack of personal jurisdiction.

b. Default Judgment

Finally, the Johnsons argue that the district court abused its discretion or erred by vacating the Missouri state court default judgment against Lowry under Federal Rule of Civil Procedure 60(b). The Johnsons specifically challenge the district court’s lack of a showing of good cause.

The district court, “for good cause shown,” “set aside” the default judgment against Lowry as part of its order granting Lowry’s motion to dismiss for lack of personal jurisdiction. Thus, while no findings were made or specific reasons given for setting aside the judgment, it is reasonable to surmise that the district court set aside the default judgment as void because the district court found that Missouri courts lacked personal jurisdiction over Lowry.

The default judgment was filed on September 22, 2008, and Lowry filed a motion to set aside the judgment on November 12, 2008. Lowry did not reference a rule of civil procedure in her motion, but Lowry is a pro se litigant and therefore we construe her pleadings broadly. See Smith v. Hundley, 190 F.3d 852, 855 n. 7 (8th Cir. 1999) (holding that pro se pleadings are afforded a liberal construction). Because Lowry specifically stated that “this is my motion to set aside the default judgment” and in the same motion argued that the court did not have personal jurisdiction, we

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will view her motion as a Rule 60(b)(4) motion. See Baldwin v. Credit Based Asset Servicing and Securitization, 516 F.3d 734, 737 (8th Cir.2008) (characterizing a pro se motion that did not specify a particular rule of civil procedure as a Rule 60(b)(4) motion because the motion stated that the court did not have personal jurisdiction).”The court may set aside an entry of default for good cause, and it may set aside a default judgment under Rule 60(b).” Fed.R.Civ.P. 55(c). Rule 60(b)(4) provides in relevant part that “the court may relieve a party … from a final judgment [if] … the judgment is void[.]” Fed.R.Civ.P. 60(b)(4). “A judgment is void if the rendering court lacked jurisdiction or acted in a manner inconsistent with due process.” Baldwin, 516 F.3d at 737 (internal quotations and citation omitted). “Although we have sometimes said that relief from a judgment under Rule 60(b) is an extraordinary remedy left to the discretion of the district court, relief from a judgment that is void under Rule 60(b)(4) is not discretionary.” United States v. Three Hundred Fifty-Three Thousand Six Hundred Dollars, in United States Currency, 463 F.3d 812, 813 (8th Cir.2006). “Thus, while Rule 60(b) dispositions are generally reviewed for an abuse of discretion… an order [granting] relief pursuant to Rule 60(b)(4) is reviewed de novo.Id. (internal citation omitted).

This is not a case where Lowry lost on the merits, failed to appeal, and belatedly attempted to avoid the judgment with a Rule 60(b)(4) motion. Cf. Kocher v. Dow Chem. Co., 132 F.3d 1225, 1229 (8th Cir.1997) (“A party may not use a Rule 60(b)(4) motion as a substitute for a timely appeal. In other words, if a party fails to appeal an adverse judgment and then files a Rule 60(b)(4) motion after the time permitted for an ordinary appeal has expired, the motion will not succeed merely because the same argument would have succeeded on appeal.”) (internal citations omitted). Rather, Lowry challenged jurisdiction from the inception of this case. The district court found that Lowry could not be subjected to personal jurisdiction in Missouri. Although we reviewed that decision on the merits in this opinion, see supra, Part II.B.2.a, for purposes of review of the district court’s decision to set aside the default judgment, we do not consider the underlying decision; we are confined to determining only whether the district court erred in granting Lowry’s Rule 60(b)(4) motion. See Three Hundred Fifty-Three Thousand six Hundred Dollars, in United States Currency, 463 F.3d at 814. Because the district court did not err in granting Lowry’s Rule 60(b)(4) motion when it found personal jurisdiction lacking we affirm the court’s decision to set aside Lowry’s adverse judgment.

III. Conclusion

Accordingly, we affirm the judgment of the district court.


1. The Honorable William Jay Riley became Chief Judge of the United States Court of Appeals for the Eighth Circuit on April 1, 2010.

2. The Honorable Dean Whipple, United States District Judge for the Western District of Missouri.

3. Section 230(e)(3) states:

4. The statutes states, in relevant part:

5. There is no copy of any post from Heineman, defamatory or otherwise, in the record, although at this summary judgment stage we construe the evidence in the light most favorable to the Johnsons.  , 791 (8th Cir.2009).

6. The Lanham Act governs the use of federal trademarks.  , 903 (8th Cir.2005) (“The Lanham Act prohibits the use of a mark in connection with goods or services in a manner that is likely to cause confusion as to the source or sponsorship of the goods or services.”)

Type of online publisher:
Google, online advertisement tool
Publisher’s Role in Third Party Content:
Keyword tool suggests words for advertisers to include in ads
CDA § 230 applicable?:

Plaintiff Goddard sued Google for displaying third-party ads that led to allegedly fraudulent mobile subscription services.

The plaintiffs accused Google of furthering unlawful activity because its Keyword Tool suggested to advertisers of mobile content that they include the word “free” in advertisements including the word “ringtone.” The court held that CDA § 230 barred the claim, because the Keyword Tool was a neutral tool that “does nothing more than provide options that advertisers may adopt or reject at their discretion.”goddard-v-google

District Court, D. Arizona

Date Filed: February 28th, 2008

Status: Precedential

Fingerprint: fc7f986fea8231410a226954ffeeda1a3d9df1b8


GLOBAL ROYALTIES, LTD., et al., Plaintiffs,
XCENTRIC VENTURES, LLC, et al., Defendants.

No. CV-07-0956-PHX-FJM.United States District Court, D. Arizona.

February 28, 2008.



In our order of October 10, 2007 (doc. 20), we granted defendants’ motion to dismiss with leave for plaintiffs to amend the complaint. Plaintiffs filed an amended complaint (doc. 22) on November 1, 2007. Now the court has before it defendants’ motion to dismiss the first amended complaint (doc. 23), plaintiffs’ response (doc. 25), and defendants’ reply (doc. 27 ex. A). The court also has before it plaintiffs’ motion to stay (doc. 28), defendants’ response (doc. 29), and plaintiffs’ reply (doc. 30). For the following reasons, defendants’ motion to dismiss the first amended complaint is granted, and plaintiffs’ motion to stay is denied.


This is a defamation action. Plaintiffs (“Global”) broker investments in gemstones. Defendants operate a website called Ripoff Report (www.ripoffreport. com), where visitors are invited to post consumer complaints. On March 27, 2006, Ripoff Report visitor Spencer Sullivan, who is not a party to this action, posted a message on the site referring to Global’s operation as a “scam.” Am. Complaint at 3. The amended complaint alleges that consumers who post on defendants’ site “must answer several questions created and developed by [defendants].” Id. at 4. The complaint gives only one example: When posting on defendants’ site, consumers are required to chose a “category” with which to label their message. For the first statement, Sullivan chose “Con Artists” from a list. Id. Further, plaintiffs allege that defendants encourage defamatory postings in order to use them as leverage “to coerce businesses and individuals to pay for [defendants’] Corporate Advocacy Program, which purports to provide assistance in investigating and resolving the posted complaints.” Id. at 3.

Sullivan posted a second entry on June 8, 2006, which he said was in response to a threat of legal action from plaintiffs’ counsel. Id. at 4. Sullivan wrote that he was not aware of any bad business practices on the part of Global itself, but that two individuals “involved with” Global had treated him dishonorably and had engaged in criminal acts. Id. Sullivan added that anyone looking to invest in gemstones should first call the Royal Canadian Mounted Police, Commercial Crime Unit.

Sullivan posted a third and final entry about Global on June 16, 2006. He again claimed that he had been “threatened” by plaintiffs’ counsel, who advised him to discontinue the postings. Id. at 4-5. His message ends, “I think that any upstanding commercial operation could bear the scrutiny of a crime unit without any issue.” Id. at 5. At some point, Sullivan allegedly contacted defendants and asked that his entries be removed from the website, but defendants refused. Id.


In our order of October 10, 2007, dismissing the original complaint, we concluded that plaintiffs’ defamation action was barred by the Communications Decency Act (“CDA”), 47 U.S.C. §§ 230, 560-61. At common law, publishers are liable along with authors for defamatory content. The CDA immunizes website operators (“providers of an interactive computer service”) by exempting them from the publisher role:

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.

47 U.S.C. § 230(c)(1). Defendants contend that the allegations of the amended complaint still do not overcome CDA immunity.


Plaintiffs contend that CDA immunity does not protect defendants’ because they failed to remove the defamatory content after Sullivan, the author, asked them to do so. They rely principally on Batzel v. Smith, 333 F.3d 1018 (9th Cir.2003). In Batzel, an individual sent a defamatory email to a private organization that added the contents to its website. Id. at 1021 — 22. The author of the message claimed that he never intended its publication on the internet. In addressing the impact on the website operator’s liability, the court turned to the statute. Under 230(c)(1), a website operator is not treated as the publisher or speaker “of any information provided by another information content provider.” (emphasis added). The court concluded that “provided” means “provided for publication,” so a website operator cannot disclaim liability for content that the author never intended to post. Id. at 1034. Here, plaintiffs acknowledge that Sullivan initially provided his statements for publication. But they contend that once Sullivan requested their removal, the statements were no longer “provided for publication,” and defendants’ CDA immunity ceased at that point.

However, in Batzel, the court did not interpret “provided” as an ongoing process. The focus was on expectations regarding communications when they are made. The court was concerned that technology users would be discouraged from sending e-mails if website operators have no incentive to evaluate whether the content they receive is meant to be broadcast over the internet or kept private. Id. There are no similar concerns in this action; Sullivan obviously meant his messages to appear on the website. Whether website operators have a duty to withdraw content when an author later changes his mind is another question — one that is not addressed by Batzel,

The most analogous cases address whether CDA immunity continues to protect a website operator who is on notice that a posting is potentially defamatory. It is well established that it does. Universal Commc’n Sys., Inc. v. Lycos, 478 F.3d 413, 420 (1st Cir.2007). In light of Congress’ goals to encourage development of the internet and to prevent the threat of liability from stifling free expression, CDA immunity has been interpreted very broadly. Carafano v. Metrosplash.com Inc., 339 F.3d 1119, 1122-23 (9th Cir. 2003). Website-operator liability based on notice has been rejected, because each “notification would require a careful yet rapid investigation of the circumstances surrounding the posted information, a legal judgment concerning the information’s defamatory character, and an on-the-spot editorial decision whether to risk liability by allowing continued publication.” Zeran v. America Online, Inc., 129 F.3d 327, 333 (4th Cir.1997). The sheer number of internet postings, perhaps combined with the anonymity of many contributors, makes this unworkable for website operators, and the incentive would be simply to remove all questionable content. See id.

Plaintiffs contend that the same difficulties are not presented when the author of the defamatory content himself requests that it be taken down. The situation does present fewer problems. However, as defendants point out, any time anyone purporting to be the author of particular content requested retraction, website operators would still have an incentive to simply remove the speech, rather than “conduct an investigation to determine (if possible) whether or not the person making the request was the [actual] author and then make an editorial decision on whether to continue publication.” Defendants’ Reply at 4.

We conclude that liability based on an author’s notice, workable or not, is without statutory support and is contrary to well-settled precedent that the CDA is a complete bar to suit against a website operator for its “exercise of a publisher’s traditional editorial functions — such as deciding whether to publish, withdraw, postpone or alter content.” Zeran, 129 F.3d at 330. The United States Court of Appeals for the Ninth Circuit has contrasted the CDA with the Digital Millennium Copyright Act, which, “unlike the [CDA], provides specific notice, take-down, and putback procedures,” and has suggested that it is up to Congress to provide similar procedures for the CDA. Batzel, 333 F.3d at 1031 n. 19.


The CDA immunizes website operators from liability for content provided “by another information content provider.” 47 U.S.C. § 230(c)(1) (emphasis added). Plaintiffs’ next contend that defendants themselves constitute an “information content provider” with respect to the posted content. If that is so, the CDA does not protect them. Batzel, 333 F.3d at 1031.

An “information content provider” is defined as “any person or entity that is responsible, in whole or in part, for the creation or development of [the content].” 47 U.S.C. § 230(f)(3). Plaintiffs allege only the most minor participation by defendants in actually composing the allegedly defamatory postings: Defendants provided a list of categories from which Sullivan selected the title “Con Artists” for his post. As in our order dismissing the original complaint, we conclude that this participation is insufficient as a matter of law to make defendants information content providers with respect to the postings. See Batzel, 333 F.3d at 1035 (“[A] central purpose of the [CDA] was to protect from liability some service providers and users who take some affirmative steps to edit the material posted.”).

However, plaintiffs have another theory. They allege that defendants use Ripoff Report messages as leverage to coerce targeted businesses to pay for defendants’ Corporate Advocacy Program, which purports to help investigate and resolve posted consumer complaints. Essentially, plaintiffs allege that defendants encourage defamatory postings from others for their own financial gain and, therefore, are partly responsible for the “creation or development” of the messages.

It is obvious that a website entitled Ripoff Report encourages the publication of defamatory content.[1] However, there is no authority for the proposition that this makes the website operator responsible, in whole or in part, for the “creation or development” of every post on the site. Essentially, that is plaintiffs’ position. After all, plaintiffs have not alleged that defendants solicited Sullivan’s postings in particular, or that they specifically solicited any postings targeting Global. Nor have they alleged that defendants altered Sullivan’s comments, or had any more than the most passive involvement (providing a list of possible titles) in composing them.

Unless Congress amends the statute, it is legally (although perhaps not ethically) beside the point whether defendants refuse to remove the material, or how they might use it to their advantage. Through the CDA, “Congress granted most Internet services immunity from liability for publishing false or defamatory material so long as the information was provided by another party.” Carafano, 339 F.3d at 1122. Here, the material was unequivocally provided by another party.

In their responsive memorandum, plaintiffs rely on Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 489 F.3d 921 (9th Cir.2007), reh’g granted, 506 F.3d 716 (9th Cir.2007). As the case is scheduled for an en banc rehearing, that opinion currently cannot be cited as precedent. Believing that Fair Housing is analogous to this action, plaintiffs have filed a motion to stay until the Ninth Circuit issues its en banc opinion. We reject that suggestion. There is no reason for this action to remain on our docket until another court issues an opinion which may or may not be binding, or even persuasive, on these issues. Plaintiffs may always appeal from this court’s judgment.


For the foregoing reasons, IT IS HEREBY ORDERED GRANTING defendants’ motion to dismiss the amended complaint (doc. 23) and FURTHER ORDERED denying plaintiffs’ motion to stay (doc. 28). The clerk is instructed to enter final judgment for defendants.


[1] Here we use “defamatory” in the strict sense of tending to harm one’s reputation regardless of truth or falsity. See Dan B. Dobbs, The Law of Torts §§ 401, 403 (2000).

478 F.3d 413 (2007)

LYCOS, INC., d/b/a Lycos Network; Terra Networks, S.A.; Roberto Villasenor, Jr., a/k/a the-worm06; John Doe #2, a/k/a no-insiders; Roberto Villasenor, Jr., a/k/a the-worm06A; John Doe # 4, a/k/a 65175R; John Doe # 5, a/k/a Henry-Johnson123; John Doe # 6, a/k/a quondo1; John Doe # 7, a/k/a Tobias95; John Doe # 8, a/k/a CrawleySmith, Defendants, Appellees.
Robert H. Cooper; Andrew Cunningham; Does 1 Through 8; Omar Ghaffar, Third-Party Defendants.

No. 06-1826.United States Court of Appeals, First Circuit.

Heard November 7, 2006.Decided February 23, 2007.414*414 John H. Faro, with whom Faro & Associates was on brief, for appellants.

Daniel J. Cloherty, with whom David A. Bunis, Rachel Zoob-Hill, and Dwyer & Collora, LLP were on brief, for appellee Lycos, Inc.

Thomas G. Rohback, with whom James J. Reardon, Jr. and LeBoeuf, Lamb, Greene & MacRae LLP were on brief, for appellee Terra Networks, S.A.

Before BOUDIN, Chief Judge, SELYA and LYNCH, Circuit Judges.

LYNCH, Circuit Judge.

Plaintiffs Universal Communication Systems, Inc. and its chief executive officer, 415*415 Michael J. Zwebner, (collectively, “UCS”) brought suit, objecting to a series of allegedly false and defamatory postings made under pseudonymous screen names on an Internet message board operated by Lycos, Inc. UCS identified two of the screen names as having been registered to Roberto Villasenor, Jr. UCS sued not only Villasenor and the other posters of messages, as John Does, but also Lycos and Terra Networks, S.A., Lycos’s corporate parent at the time of the postings in question.

In Section 230 of the Communications Decency Act (CDA), 47 U.S.C. § 230, Congress has granted broad immunity to entities, such as Lycos, that facilitate the speech of others on the Internet. Whatever the limits of that immunity, it is clear that Lycos’s activities in this case fall squarely within those that Congress intended to immunize. UCS attempted to plead around this Section 230 statutory immunity by asserting that Lycos did not qualify for immunity and that UCS’s claims fell within certain exceptions to that immunity. The district court rejected these arguments and dismissed the claims against Lycos and Terra Networks for failure to state a claim. We agree and affirm the dismissals, joining the other courts that have uniformly given effect to Section 230 in similar circumstances.

As for the claims against the individuals who posted, UCS alleged violations of federal and state securities laws, but made only conclusory allegations that the postings at issue were in connection with a scheme involving UCS stock. It thus failed to meet the particularity requirement for pleading fraud under Federal Rule of Civil Procedure 9(b). In the absence of any substantial allegations on this point, we affirm the district court’s dismissal of those claims.


Because we review here the district court’s granting of a motion to dismiss, we recite the facts as alleged in UCS’s complaint, McCloskey v. Mueller, 446 F.3d 262, 264 (1st Cir.2006), but without crediting unsupported conclusions and assertions, Palmer v. Champion Mortgage, 465 F.3d 24, 25 (1st Cir.2006).

Universal Communication Systems, Inc. is a Nevada corporation with its corporate offices in Florida. The company at one point provided telecommunications services and currently is developing solar-powered water extraction systems. It is a publicly-traded company that trades under the ticker symbol “UCSY,” a label that the company also uses in its promotional materials. Zwebner is Chairman and CEO of the company. He is a citizen of the United Kingdom and of Israel, with his principal residence in Israel and a secondary residence in Florida.

Lycos is a Massachusetts corporation with its principal place of business in Massachusetts. Terra Networks is a Spanish corporation with its principal place of business in Spain. Terra Networks owned Lycos from 2000 to 2004.

Lycos operates a network of web sites devoted to a wide array of content. At times relevant here, these web sites included Quote.com, which provides stock quotation information and financial data for publicly-traded companies, and RagingBull.com, which hosts financially-oriented message boards, including ones designed to allow users to post comments about publicly-traded companies. The message board for each such company is generally created by a user and is generally identified using the company’s stock ticker symbol—UCSY in this case. In addition, the two web sites are linked to each other, so that a user who retrieves a stock quote from Quote.com is also given a 416*416 link to the corresponding message board on Raging Bull. Both web sites contain advertisements, and Lycos derives advertising revenue that depends in some measure on the volume of usage of its sites.

Individuals must register with Lycos in order to post messages on Raging Bull message boards. As part of the registration process, users are required to agree to a “Subscriber Agreement,” which, inter alia, requires users to comply with federal and state securities laws. Upon registration, a member obtains a “screen name.” Postings on the message board are identified by screen name, but no further identifying information is automatically included with the posting. The registration process does not prevent a single individual from registering under multiple screen names.

Starting at least in 2003, a number of postings disparaging the “financial condition, business prospects and management integrity” of UCS appeared on Raging Bull’s UCSY message board. UCS alleges that these postings were “false, misleading and/or incomplete.” In particular, UCS identified postings made under eight different screen names as objectionable. UCS alleges that the individuals registered under each of these screen names “are one [and] the same individual, Roberto Villasenor, Jr. and/or are individuals acting in concert with Roberto Villasenor, Jr.”

On January 19, 2005, UCS filed suit against Lycos and Terra Networks in federal district court in the Southern District of Florida. On February 2, 2005, before either defendant responded to the complaint, UCS filed a “First Amended Complaint,” adding as defendants eight John Does, each identified by a Raging Bull screen name. In this First Amended Complaint, UCS alleged four claims: (1) fraudulent securities transactions under Fla. Stat. § 517.301; (2) cyberstalking under 47 U.S.C. § 223; (3) dilution of trade name under Fla. Stat. § 495.151; and (4) cyberstalking under Fla. Stat. § 784.048. The Florida securities claim was made against all of the defendants, and the remaining claims were made against Lycos and Terra Networks only.

In response, Lycos filed a motion to dismiss, arguing that UCS’s claims were barred under Section 230 of the Communications Decency Act, 47 U.S.C. § 230, and that there was no basis for either the federal cyberstalking claim or the state dilution claim. Section 230 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,” id. § 230(c)(1), and that “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section,” id. § 230(e)(3).

In the alternative, Lycos moved to transfer the case to the District of Massachusetts, citing a forum selection clause in its Subscriber Agreement. In addition, Lycos sought a stay of discovery pending the resolution of these motions. The district court in Florida granted the stay and shortly thereafter transferred the case to Massachusetts. This left pending the motion to dismiss.

Following the transfer, the district court in Massachusetts held a hearing on July 26, 2005, at which it denied all pending motions without prejudice. It then scheduled a later conference at which to consider any renewed motions, and held that it would “not lift the stay on discovery at this time.” In response to UCS’s request for limited discovery in the interim, the district court judge stated that he would “not allow that until I’ve had an opportunity to hear you on the matter. That will be an issue that we will take up at the [later] conference.”

417*417 Lycos and Terra Networks again filed motions to dismiss, and on October 11, 2005, the district court granted the motions. The court ruled from the bench that Section 230 “immunizes Lycos [and Terra Networks] from all of the four counts in the plaintiffs’ complaint” and did not address any of the alternate arguments for dismissal. At that hearing, UCS made no mention of any need for discovery in order to properly oppose the motions to dismiss.

UCS then moved for leave to amend its complaint again. In the proposed second amended complaint, UCS alleged essentially the same four causes of action, but added factual allegations going to the “construct and operation” of Lycos’s web sites, evidently assuming that such facts would take Lycos outside Section 230 immunity.

On December 21, 2005, the district court denied the motion to amend the complaint as to Lycos and Terra Networks, finding that the claims against those defendants, as framed in the proposed second amended complaint, would continue to be barred by Section 230. In addition, the district court held that the claim for cyberstalking under 47 U.S.C. § 223 would be dismissed for failure to state a claim, because that statute does not provide a private right of action. As to the Florida trademark dilution claim, the court held that because Lycos was not using “the `UCSY’ trademark to market incompatible products or services,” but was only using it “on the Raging Bull message board,” the claim was “effectively . . . a defamation claim in the guise of an antidilution claim,” and was thus barred by Section 230.

The district court did, however, grant leave to file a complaint against the John Doe defendants to assert a claim under the Florida securities statute. On February 27, 2006, UCS filed a “Second Amended Complaint” against Villasenor and the John Does. In this complaint, UCS substituted Roberto Villasenor, Jr. for two of the John Does, previously identified as “the-worm06” and “the-worm06A.”[1] The complaint alleged that Villasenor was a citizen of California. In addition to asserting a cause of action under Florida securities laws against Villasenor and the remaining John Does, the complaint alleged causes of action, founded on the same set of operative facts, under federal securities laws, Massachusetts securities laws, and Massachusetts common law fraud. Subject matter jurisdiction was alleged based on both federal question jurisdiction and diversity jurisdiction. UCS then moved for entry of separate and final judgment against Lycos and Terra Networks. On April 6, 2006, Villasenor filed an answer to the complaint, also asserting counterclaims and third-party claims.

On April 18, 2006, the district court denied the motion for entry of separate and final judgment as to Lycos and Terra Networks, finding that the court lacked subject matter jurisdiction over the remaining claims and so judgment should be entered on all claims filed against all defendants. The court found that diversity jurisdiction was destroyed by the presence of the John Doe defendants. The court also found that the claim under the federal securities laws against Villasenor and the John Does was not sufficiently substantial to confer federal question jurisdiction, as UCS had failed to “allege that any individual defendant owned, borrowed, sold, or purchased any shares in UCSY.” As a result, the district court ordered the case “dismissed as to all defendants.”

418*418 II.

We review a denial of leave to amend the complaint for abuse of discretion, “deferring to the district court for any adequate reason apparent from the record.” Resolution Trust Corp. v. Gold, 30 F.3d 251, 253 (1st Cir.1994). The futility of the amendment is an adequate reason to reject it, see id., and here the district court found that the amendment would be futile because the amended complaint would be subject to dismissal. Our review of a dismissal for either failure to state a claim or lack of subject matter jurisdiction (so long as made without factfinding) is de novo. McCloskey, 446 F.3d at 266. We are not limited by the district court’s reasoning, and we “may affirm an order of dismissal on any basis made apparent by the record.” Id.

We begin with the Florida law claims against Lycos and Terra Networks.[2] Because these claims are based, at least in part, on the alleged impropriety of postings made by third parties on Raging Bull, UCS must contend with the statutory immunity provided by Section 230. UCS has attempted to plead around that immunity by casting its claims only in terms of Lycos’s actions and by asserting causes of action that purportedly fall into one of the statutory exceptions to Section 230 immunity. Whatever the viability of UCS’s legal theories in the abstract, however, the facts pleaded simply do not fit those theories. On the facts alleged, Congress intended that, within broad limits, message board operators would not be held responsible for the postings made by others on that board. No amount of artful pleading can avoid that result.

A. Applicability of CDA Section 230 Immunity

Section 230 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,” 47 U.S.C. § 230(c)(1), and that “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section,” id. § 230(e)(3). Thus, unless an exception applies, Lycos is immunized from a state law claim if: (1) Lycos is a “provider or user of an interactive computer service”; (2) the claim is based on “information provided by another information content provider”; and (3) the claim would treat Lycos “as the publisher or speaker” of that information.

Although this court has not previously interpreted CDA Section 230, we do not write on a blank slate. The other courts that have addressed these issues have generally interpreted Section 230 immunity broadly, so as to effectuate Congress’s “policy choice . . . not to deter harmful online speech through the . . . route of imposing tort liability on companies that serve as intermediaries for other parties’ potentially injurious messages.” Zeran v. Am. Online, Inc., 129 F.3d 327, 330-31 (4th Cir.1997); see also Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1123-24 (9th Cir.2003); Ben Ezra, Weinstein, & Co. v. Am. Online Inc., 206 F.3d 980, 985 n. 3 (10th Cir.2000). In Zeran, the Fourth Circuit noted the “obvious chilling effect” 419*419 that such intermediary tort liability could have, given the volume of material communicated through such intermediaries, the difficulty of separating lawful from unlawful speech, and the relative lack of incentives to protect lawful speech. 129 F.3d at 331. The Fourth Circuit also recognized the congressional purpose of removing the disincentives to self-regulation that would otherwise result if liability were imposed on intermediaries that took an active role in screening content. Id.

In light of these policy concerns, we too find that Section 230 immunity should be broadly construed. In the context of this case, we have no trouble finding that Lycos’s conduct in operating the Raging Bull web site fits comfortably within the immunity intended by Congress. In particular: (1) web site operators, such as Lycos, are “provider[s] . . . of an interactive computer service”; (2) message board postings do not cease to be “information provided by another information content provider” merely because the “construct and operation” of the web site might have some influence on the content of the postings; and (3) immunity extends beyond publisher liability in defamation law to cover any claim that would treat Lycos “as the publisher.”

1. “Interactive Computer Service” Provider

There is no merit to UCS’s suggestion that Lycos might not be a provider of an interactive computer service and so is not entitled to Section 230 immunity. The statute defines “interactive computer service” to be “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.” 47 U.S.C. § 230(f)(2). A web site, such as the Raging Bull site, “enables computer access by multiple users to a computer server,” namely, the server that hosts the web site. Therefore, web site operators, such as Lycos, are providers of interactive computer services within the meaning of Section 230.

UCS argues that Lycos might not be such a provider because it “does not provide user access to the internet.” Providing access to the Internet is, however, not the only way to be an interactive computer service provider. While such providers are “specifically” included, there is no indication that the definition should be so limited. Other courts have reached the same conclusion. See, e.g., Carafano, 339 F.3d at 1123.

2. “Information Provided By Another”

The message board postings to which UCS objects are, on their face, “information provided by another information content provider.” Section 230 defines “information content provider” to be “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.” 47 U.S.C. § 230(f)(3). This is a broad definition, covering even those who are responsible for the development of content only “in part.” In this case, it is clear that the individual posters on the Raging Bull web site are information content providers.

A key limitation in Section 230, however, is that immunity only applies when the information that forms the basis for the state law claim has been provided by “another information content provider.” Id. § 230(c)(1) (emphasis added). Thus, an interactive computer service provider remains liable for its own speech. See Anthony v. Yahoo! Inc., 421 F.Supp.2d 1257, 1262-63 (N.D.Cal.2006) (finding an online 420*420 dating service not immune under Section 230 from claims that it “manufactured false profiles” and “sent profiles of actual, legitimate former subscribers whose subscriptions had expired” (internal quotation marks omitted)).

It is, by now, well established that notice of the unlawful nature of the information provided is not enough to make it the service provider’s own speech. See Zeran, 129 F.3d at 332-33; see also Barrett v. Rosenthal, 40 Cal.4th 33, 51 Cal. Rptr.3d 55, 146 P.3d 510, 514, 525 (2006). We confirm that view and join the other courts that have held that Section 230 immunity applies even after notice of the potentially unlawful nature of the third-party content.

UCS “emphasize[s]” that Lycos was “manifestly aware of the illegal nature of [the] subscriber postings,” but does not rely on notice alone in arguing against immunity. UCS argues instead that Lycos “has involved itself with its subscriber[s’] conduct/activities and/or rendered culpable assistance to its registered subscribers to the Lycos Network, through the construct and operation of its web site,” and that such conduct falls outside Section 230 immunity. UCS has alleged nothing, however, that suggests that Lycos should be considered to have been “responsible,” even “in part,” “for the creation or development” of the alleged misinformation. At best, UCS’s allegations establish that Lycos’s conduct may have made it marginally easier for others to develop and disseminate misinformation. That is not enough to overcome Section 230 immunity.

In Carafano, the Ninth Circuit rejected the plaintiff’s suggestion that an online dating service should have been considered a developer of a false profile because it provided the questionnaire that a user of the service answered falsely. 339 F.3d at 1124-25. The court reasoned that the “underlying misinformation” that formed the basis for the complaint was contained entirely in the responses provided by the user, and that the particularly objectionable content “bore [no] more than a tenuous relationship to the actual questions asked.” Id. at 1125.

Compared to Carafano, the allegations in this case provide an even less substantial basis to find that Lycos was a developer of the alleged misinformation. UCS points to the fact that Lycos does not prevent a single individual from registering under multiple screen names, and to the fact that Lycos links sites providing objective financial information to the Raging Bull site. UCS’s theory is that these features of the Raging Bull site make it possible for individuals to spread misinformation more credibly, by doing so under multiple screen names and in a context that is associated with objective content. In Carafano, the plaintiff at least had a colorable argument that the misinformation may have been prompted by the dating service’s questions. Here there is not even a colorable argument that any misinformation was prompted by Lycos’s registration process or its link structure. There is no indication that the Lycos features that UCS criticizes are anything but standard for message boards and other web sites. To impose liability here would contravene Congress’s intent and eviscerate Section 230 immunity.

In a related argument, UCS argues that Lycos has provided “culpable assistance” to subscribers wishing to disseminate misinformation, and hence Lycos exceeded the bounds of Section 230 immunity. UCS draws an analogy to the copyright case of MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 125 S.Ct. 2764, 162 L.Ed.2d 781 (2005). In Grokster, the Supreme Court held that copyright liability could be premised on a theory of active inducement of infringement, so that “one who distributes a device with the object of promoting its 421*421 use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.” Id. at 2770. UCS argues that, similarly, Lycos should enjoy no immunity if it actively induces its subscribers to post unlawful content.

It is not at all clear that there is a culpable assistance exception to Section 230 immunity. The language of “culpable assistance” used by UCS appears to have been drawn from Doe v. GTE Corp., 347 F.3d 655, 659 (7th Cir.2003). But that court used the language in the context of determining whether the defendant might be secondarily liable under the Electronic Communications Privacy Act of 1986 (ECPA), Pub.L. No. 99-508, 100 Stat. 1848 (codified as amended in scattered sections of 18 U.S.C.). We note that liability under the ECPA is specifically exempted from Section 230 immunity. See 47 U.S.C. § 230(e)(4). There is no ECPA claim here. Similarly, Grokster itself was a copyright case, and secondary liability for copyright infringement is not affected by Section 230 because intellectual property laws are also exempted. See id. § 230(e)(2).

We need not decide whether a claim premised on active inducement might be consistent with Section 230 in the absence of a specific exception. Even assuming arguendo that active inducement could negate Section 230 immunity, it is clear that UCS has not alleged any acts by Lycos that come even close to constituting the “clear expression or other affirmative steps taken to foster” unlawful activity that would be necessary to find active inducement. See Grokster, 125 S.Ct. at 2770. UCS relies in part on Lycos’s registration process and link structure; as described above, these are standard elements of web sites “with [both] lawful and unlawful potential,” see id. at 2780, and hence, without more, cannot form the basis to find inducement. UCS’s complaint also cites the fact that Lycos has taken legal action to protect its subscribers, including moving to quash subpoenas and intervening in relevant cases. Actions taken to protect subscribers’ legal rights, however, cannot be construed as inducement of unlawful activity, and UCS does not allege that Lycos lacked a reasonable basis for its legal activities. Cf. Prof’l Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 51, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993) (“[L]itigation cannot be deprived of [antitrust] immunity as a sham unless the litigation is objectively baseless.”). The “unmistakable” evidence of an “unlawful objective” found in Grokster, 125 S.Ct. at 2782, is entirely absent here.[3]

Thus, it is clear that, taking UCS’s allegations as true, Lycos has done nothing in this case that might make the misinformation at issue its own, rather than that of “another information content provider.”

3. Treatment “as the Publisher”

Finally, liability under either the Florida securities law or the Florida cyberstalking law would involve treating Lycos “as the publisher” of the misinformation.[4] UCS’s securities claims are based 422*422 on the theory that individuals were taking a short position in UCS stock and then spreading misinformation to depress the stock price, so as to profit from their short position.[5] There is no allegation that Lycos has been involved in any UCS stock transactions; thus, any liability against it must be premised on imputing to it the alleged misinformation, that is, on treating it as the publisher of that information.[6] Similarly, the alleged cyberstalking involves only the publication of a series of postings on the Raging Bull web site. Again, Lycos’s liability would depend on treating it as the publisher of those postings.

UCS argues that the prohibition against treating Lycos “as the publisher” only immunizes Lycos’s “exercise of a publisher’s traditional editorial functions—such as deciding whether to publish, withdraw, postpone or alter content,” Zeran, 129 F.3d at 330, and not its decisions regarding the “construct and operation” of its web sites. This argument misapprehends the scope of Section 230 immunity. If the cause of action is one that would treat the service provider as the publisher of a particular posting, immunity applies not only for the service provider’s decisions with respect to that posting, but also for its inherent decisions about how to treat postings generally. UCS is ultimately alleging that the construct and operation of Lycos’s web sites contributed to the proliferation of misinformation; Lycos’s decision not to reduce misinformation by changing its web site policies was as much an editorial decision with respect to that misinformation as a decision not to delete a particular posting. Section 230 immunity does not depend on the form that decision takes. See Green v. Am. Online (AOL), 318 F.3d 465, 470 (3d Cir.2003) (finding that liability for the “alleged negligent failure to properly police [AOL’s] network for content transmitted by its users . . . would `treat’ AOL `as the publisher or speaker’ of that content”).

We hold that, given the allegations in UCS’s complaint, liability for Lycos under either the Florida securities statute or the Florida cyberstalking statute would involve treating Lycos “as the publisher” of “information provided by another information content provider.” Thus, we affirm the district court’s ruling that both claims are barred by Section 230.

B. Trademark Dilution

UCS’s remaining claim against Lycos was brought under Florida trademark law, alleging dilution of the “UCSY” trade name under Fla. Stat. § 495.151. Claims based on intellectual property laws are not 423*423 subject to Section 230 immunity. See 47 U.S.C. § 230(e)(2) (“Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.”); see also Gucci Am., Inc. v. Hall & Assocs., 135 F.Supp.2d 409, 413 (S.D.N.Y.2001) (finding that the “plain language of Section 230(e)(2) precludes [the defendant’s] claim of immunity” from a claim for trademark infringement).

Thus, “the pivotal issue for consideration here is whether Plaintiff’s complaint would withstand a motion to dismiss even in the absence of § 230.” Id. at 412. We hold that, because of the serious First Amendment issues that would be raised by allowing UCS’s claim here, the claim would not survive, even in the absence of Section 230.[7]

During the relevant time period, Fla. Stat. § 495.151 (2006) provided that one who adopts and uses a trademark or trade name has a cause of action

to enjoin subsequent use by another of the same or any similar mark [or] trade name . . . if it appears to the court that there exists a likelihood of injury to business reputation or of dilution of the distinctive quality of the mark [or] trade name . . . of the prior user, notwithstanding the absence of competition between the parties or of confusion as to the source of goods or services.[8]

UCS’s theory is that Lycos is liable under this statute for suggesting to its subscribers that they use the “`UCSY’ mark for designation of a message board on the Raging Bull web site” and then “contribut[ing] to the development” of misinformation on that message board and failing to remove such misinformation. UCS alleges that these acts have caused injury to its business reputation and dilution of its UCSY trade name.

The injury that UCS alleges, however, is not a form of trademark injury. Trademark injury arises from an improper association between the mark and products or services marketed by others. See L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26, 31 (1st Cir.1987). But any injury to UCS ultimately arises from its being criticized on the Raging Bull site. To premise liability on such criticism would raise serious First Amendment concerns. See id. at 33. In L.L. Bean, this court held that the “application of the Maine anti-dilution statute to [defendant’s] noncommercial parody cannot withstand constitutional scrutiny” under the First Amendment, recognizing the role of parody “as a form of social and literary criticism.” Id. (quoting Berlin v. E.C. Publ’ns, Inc., 329 F.2d 541, 545 (2d Cir.1964)) (internal quotation marks omitted). In that case, as in this one, “[i]f the anti-dilution statute were construed as permitting a trademark owner to enjoin the use of his mark in a noncommercial context found to be negative or offensive, then a corporation could shield itself from criticism by forbidding the use of its name in commentaries critical of its conduct.” Id.

To be sure, UCS does allege that in this case the criticism is false and misleading. 424*424 But while such an allegation might be relevant to a defamation claim, it is not determinative of whether UCS’s allegations can support a trademark claim. If the injury alleged is one of critical commentary, it falls outside trademark law, whether the criticism is warranted or unwarranted. UCS itself makes no distinction between lawful and unlawful criticism in its proposed remedy under trademark law: it requests an injunction that would require Lycos to “permanently and irrevocably delete the UCSY message board” and refrain “from creat[ing] and maintaining . . . a UCSY message board . . . in the future.”

UCS tries to avoid the thrust of cases like L.L. Bean by characterizing Lycos’s use of the UCSY trade name as “commercial.” It certainly appears from the complaint that Lycos derives advertising revenues from the use of its web sites, including Raging Bull, and that Lycos is a commercial venture. This does not imply, however, that Lycos’s use of the UCSY trade name is “commercial” in the relevant sense under trademark law. In L.L. Bean, the defendant had used the plaintiff’s trademark in a parody article published in a “monthly periodical.” 811 F.2d at 27. We found the use noncommercial because the mark had not been used “to identify or promote goods or services to consumers,” id. at 32, regardless of whether the article appeared in a magazine being sold for profit. Similarly, courts have interpreted the “noncommercial use” exemption in the Federal Trademark Dilution Act, 15 U.S.C. § 1125(c), to apply to commentary about trademarked products, even if that commentary takes the form of a commercial product, such as a widely-marketed song. See Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 899, 907 (9th Cir.2002). Thus, Lycos might profit by encouraging others to talk about UCS under the UCSY name, but neither that speech nor Lycos’s providing a forum for that speech is the type of use that is subject to trademark liability.

Other courts have dealt with similar issues under the rubric of a “nominative fair use defense.” New Kids on the Block v. News Am. Publ’g, Inc., 971 F.2d 302, 308 (9th Cir.1992). Unlike a classic fair use defense, “where the defendant has used the plaintiff’s mark to describe the defendant’s own product,” a nominative fair use defense is designed to protect the ability of others to use a mark “to describe the plaintiff’s product.” Id. Thus, the Ninth Circuit found that a newspaper’s use of a musical group’s trademarked name to conduct a poll about the group was a nominative fair use, even though the poll was conducted for profit. See id. at 309.

This court has not previously decided whether to endorse the Ninth Circuit’s test for nominative fair uses, and we have no occasion to do so here. We have, however, recognized the underlying principle. In WCVB-TV v. Boston Athletic Ass’n, 926 F.2d 42 (1st Cir.1991), the owner of the mark “Boston Marathon” tried to enjoin the use of the mark on an unlicensed broadcast of the marathon. Id. at 44. In rejecting a right to such an injunction, we noted

[T]he words “Boston Marathon” . . . do more than call attention to Channel 5’s program; they also describe the event that Channel 5 will broadcast. . . . [T]he use of words for descriptive purposes is called a “fair use,” and the law usually permits it even if the words themselves also constitute a trademark.

Id. at 46. The unlicensed broadcaster, Channel 5, was not asserting a right to use the mark for a different marathon located in Boston; it was using the mark to indicate that it was broadcasting the “Boston Marathon.” We held that it had the right to use the mark to indicate what it was in fact broadcasting. Similarly here, trademark 425*425 law should not prevent Lycos from using the “UCSY” mark to indicate that a particular company is the subject of a particular message board.

While Florida courts do not appear to have addressed this particular issue with respect to the Florida anti-dilution statute, there is every indication that the Florida courts would read the Florida statute to exclude the uses made in this case. Despite its broad language, “the Florida antidilution statute is not intended to apply to the use of a similar mark on similar goods,” but rather only to the use of “similar marks on dissimilar products.” Harley-Davidson Motor Co. v. Iron Eagle of Cent. Fla., Inc., 973 F.Supp. 1421, 1426 (M.D.Fla.1997). Lycos is not using the “UCSY” trade name “on” a product (or business) at all, but is simply referring to the existing company that has adopted that trade name.

It is not our role to define the specific contours of the Florida anti-dilution law, and we do not do so here. As other courts have also found, however, anti-dilution laws should be interpreted to provide breathing room for First Amendment concerns. See MCA Records, 296 F.3d at 904. Whether Lycos’s use of the “UCSY” trade name is viewed as a noncommercial use, as a nominative use, or in some other way, we hold that using a company’s trade name to label a message board on which the company is discussed is not a use covered by the Florida anti-dilution statute. As a result, we affirm the district court’s dismissal of UCS’s dilution claim for failure to state a claim.

C. Discovery

UCS argues that its claims against Lycos would not have fared so poorly had the district court given it the opportunity to conduct preliminary discovery. We review this claim for an abuse of the district court’s broad discretion in managing discovery, and we will not “interfere unless it clearly appears that a `discovery order was plainly wrong and resulted in substantial prejudice to the aggrieved party.'” Dynamic Image Techs., Inc. v. United States, 221 F.3d 34, 38 (1st Cir.2000) (quoting Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 186 (1st Cir.1989)).

At the outset, UCS may well have forfeited this point by failing to explain to the district court its need for discovery either in its opposition to the motions to dismiss or at the October 11, 2005 hearing on those motions. See id. UCS argues that the need for discovery was apparent from its request at the July 26, 2005 hearing, together with the nature of the arguments made at the October 11 hearing, but it was not the district court’s job to infer an explanation from these scattered statements.

In any event, it is clear that even before this court, UCS has not pointed to any discovery that would support a viable claim against Lycos that falls outside of Section 230 immunity.[9] Cf. id. at 39. UCS focuses on discovery concerning the “construct and operation” of Lycos’s web sites, but as we have explained above, Lycos is as entitled to immunity for its decisions about how to construct its web sites as for its decisions with respect to individual message board postings. Any suggestion that Lycos may have done more specifically to encourage the postings at issue is sheer speculation. “[P]laintiffs should not be permitted to conduct fishing expeditions in hopes of discovering claims that they do 426*426 not know they have.” McCloskey, 446 F.3d at 271. The district court did not err in not permitting preliminary discovery.


The remaining issue concerns UCS’s claims against the individual posters: Villasenor and six John Does. The district court found that it lacked subject matter jurisdiction over these claims because the putative federal claim was insubstantial, and because the presence of John Does destroyed diversity jurisdiction.[10] We bypass the jurisdictional issues raised and hold, on similar reasoning, that UCS’s allegations are insufficient to plead a claim for securities fraud.[11]

UCS’s theory of securities fraud appears to be, as we have described, that Villasenor and the John Does first took short positions in UCS stock and then spread misinformation to depress the stock price. Cf. SEC v. Mandaci, No. 00 Civ. 6635, 2004 WL 2153879, at *1, 2004 U.S. Dist. LEXIS 19143, at *1 (S.D.N.Y. Sept. 27, 2004) (describing scheme to “purchase[] certain stocks and then . . . artificially inflate the market prices of those stocks by posting false information . . . on Internet message boards”). However, UCS does not sufficiently allege such a scheme. UCS’s Second Amended Complaint contains copious allegations regarding the postings on Raging Bull, but as to a short-selling scheme, only a single allegation that “[u]pon information and belief,” the individual defendants “fraudulently manipulate[d] the market in the securities for publicly traded companies” using a short-selling scheme. Nowhere does the complaint specifically allege UCS stock transactions by the defendants.

Such a conclusory allegation of securities fraud runs afoul of the requirement of Federal Rule of Civil Procedure 9(b) to plead “the circumstances constituting fraud . . . with particularity.”[12] Not only has UCS failed to specifically allege a connection 427*427 between the postings and a scheme involving UCS stock, the sole allegation of a short-selling scheme is made on information and belief. “Where allegations of fraud are explicitly or . . . implicitly based only on information and belief, the complaint must set forth the source of the information and the reasons for the belief.” Romani v. Shearson Lehman Hutton, 929 F.2d 875, 878 (1st Cir.1991). UCS has not done so here. UCS does not purport to state a claim for securities fraud based solely on negative effects that the Raging Bull postings had on the company’s stock price; in the absence of further factual allegations, it cannot proceed merely on the hope that it will find more. See Hayduk v. Lanna, 775 F.2d 441, 443 (1st Cir. 1985).

Finally, these pleading defects are also fatal to UCS’s claims under state law based on the same allegations. “Although state law governs the burden of proving fraud at trial, the procedure for pleading fraud in federal courts in all diversity suits is governed by the special pleading requirements of Federal Rule of Civil Procedure 9(b).” Id.


Therefore, while some of UCS’s claims are barred by Section 230 immunity, the remaining ones simply do not state a claim based on the facts alleged. If UCS has in fact been injured, redress is not available through any of the avenues it has chosen to pursue in this case. The district court’s dismissal of all claims is affirmed. Costs are awarded to appellees.

[1] Despite UCS’s suggestion to the contrary, the complaint squarely alleged that the John Does might not all be Villasenor, but might be “individuals acting in concert with” Villasenor.

[2] Both before the district court and in this court, Terra Networks has argued that, in addition to the bases for dismissal applicable to Lycos, the claims against it should be dismissed for lack of personal jurisdiction. Because we find that all claims against both Lycos and Terra Networks were properly dismissed for failure to state a claim, we need not reach this alternative argument. In the remainder of this opinion, we refer only to claims against Lycos, but the disposition of the claims against Terra Networks is the same.

[3] UCS also argues that because it bases its claims on Lycos’s alleged “intentional misconduct,” those claims are not subject to Section 230 immunity. It is not clear how UCS is using the phrase “intentional misconduct.” If this refers to Lycos’s acting intentionally with knowledge of the third-party misinformation, then such claims are barred under our holding that notice does not preclude Section 230 immunity. If this refers to Lycos’s acting with intent to harm UCS, then this is a variant on an active inducement theory, which, as we have described, has no basis in UCS’s factual allegations.

[4] On the federal cyberstalking claim under 47 U.S.C. § 223, in addition to finding the claim barred by Section 230, the district court also found that the cyberstalking statute does not provide a private right of action. UCS does not challenge this dispositive ruling on appeal, so we affirm the dismissal of the claim on that basis, expressing no view on the appropriateness of applying Section 230 immunity to a putative civil claim under 47 U.S.C. § 223. See 47 U.S.C. § 230(e)(1) (“Nothing in this section shall be construed to impair the enforcement of section 223 or 231 of this [title 47], . . . or any other Federal criminal statute.” (emphasis added)).

Nor do we express a view on whether the specific exception in § 230(e)(1) for federal criminal statutes might apply to analogous state statutes. UCS’s brief might be read to suggest something along these lines, but “issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.” United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

[5] To take a short position in a stock means to sell borrowed stock at the current price in the hope that the stock price will decline and the borrower will be able to return the borrowed stock by purchasing it at the later, lower price.

[6] We express no view on the viability of such a claim, absent Section 230 immunity.

[7] After noting the same First Amendment concerns, the district court held that UCS’s trademark claim was “effectively . . . a defamation claim in the guise of an antidilution claim,” and that “Lycos and Terra would therefore be shielded from [the claim] by CDA immunity.” We reason somewhat differently, holding that even though Section 230 immunity does not apply, the claim was properly dismissed as a matter of trademark law.

[8] The statute has since been amended, effective January 1, 2007, and now applies only to “a mark that is famous in this state.” Fla. Stat. § 495.151 (2007). The new statute contains an explicit exception for “[n]oncommercial use of the mark.” Id. § 495.151(3)(b). Our discussion below would apply equally to the new statute.

[9] UCS does argue that discovery as to the identity (and citizenship) of the persons using particular screen names to post the allegedly unlawful comments would have allowed it to stave off the district court’s jurisdictional dismissal. Since we affirm the dismissal on alternate grounds below, we need not address the propriety of such discovery.

[10] The presence of John Does does not destroy diversity jurisdiction in cases removed to federal court. See 28 U.S.C. § 1441(a) (“For purposes of removal under this chapter, the citizenship of defendants sued under fictitious names shall be disregarded.”); see also Howell v. Tribune Entm’t Co., 106 F.3d 215, 218 (7th Cir.1997). Federal courts do not agree on whether John Does are permitted in diversity cases originally filed in federal court, as this case was. Compare Howell, 106 F.3d at 218(no) with Macheras v. Ctr. Art Galleries— Hawaii, Inc., 776 F.Supp. 1436, 1440 (D.Haw.1991) (yes). The First Circuit has never directly addressed this issue, nor do we do so here. See McMann v. Doe, 460 F.Supp.2d 259, 264 (D.Mass.2006).

[11] The Supreme Court has held that courts must resolve issues of Article III jurisdiction before reaching questions on the merits, even if “(1) the merits question is more readily resolved, and (2) the prevailing party on the merits would be the same as the prevailing party were jurisdiction denied.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 93-94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). However, the rule is well established in this circuit that “while Article III jurisdictional disputes are subject to Steel Co., statutory jurisdictional disputes are not.” Restoration Pres. Masonry, Inc. v. Grove Eur. Ltd., 325 F.3d 54, 59 (1st Cir.2003). Article III requires only “minimal diversity” for jurisdiction based on diversity of citizenship, that is, “two adverse parties [who] are not co-citizens.” State Farm Fire & Cas. Co. v. Tashire, 386 U.S. 523, 530-31, 87 S.Ct. 1199, 18 L.Ed.2d 270 (1967). In this case, Villasenor, a citizen of California, is diverse from Universal Communication Systems, a Nevada corporation with its principal place of business in Florida. Thus, the district court did have Article III jurisdiction over the claims in the Second Amended Complaint filed by UCS.

[12] To the extent applicable, the pleadings also fall short of the standard required by the Private Securities Litigation Reform Act of 1995, 15 U.S.C. § 78u-4, which we have held to embody “at least the standards of Rule 9(b).” Greebel v. FTP Software, Inc., 194 F.3d 185, 193 (1st Cir.1999).