Retweeters Immune from Defamation Liability Under 47 U.S.C. § 230

From the New Hampshire Supreme Court's decision today in Banaian v. Bascom, in an opinion by Justice Anna Barbara Hantz Marconi:

[According to the Complaint,] the plaintiff was a teacher at Merrimack Valley Middle School in May 2016, when a student at Merrimack Valley High School "hacked" the Merrimack Valley Middle School website and changed the plaintiff's webpage, creating a post that "suggest[ed] that [the plaintiff] was sexually pe[r]verted and desirous of seeking sexual liaisons with Merrimack Valley students and their parents." Another student took a picture of the altered website and tweeted that image over Twitter. The retweeter defendants retweeted the original tweet. As a result, the plaintiff was subject to "school-wide ridicule," was unable to work for approximately six months, and suffered financial, emotional, physical, and reputational harm….

Plaintiff sued the retweeters, among others, for libel, but the court concluded that 47 U.S.C. § 230, part of the CDA (Communications Decency Act), precluded the lawsuit:

The CDA provides in pertinent part 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." An "interactive computer service" is "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." An "information content provider" is "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." "No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with" section 230….

The meaning of "user" in the first element of section 230(c)(1) is the sole issue in this appeal. The plaintiff argues that "[a] person who knowingly retweets defamatory information is not a 'user' of an interactive computer service the CDA was designed to protect from defamation liability." She asserts that "[n]othing in the text of Section 230, or in the legislative history suggests that Congress intended to provide immunity to individual users of a website," and that "[t]he term 'user' of an interactive computer service should be interpreted to mean libraries, colleges, computer coffee shops, and companies that at the beginning of the internet were primary access points for many people." The plaintiff further asserts that "because the CDA changes the common law of defamation, the statute must speak directly to immunizing individual users."

The trial court "recognized that the vast majority of the reported cases that address whether a defendant is immune from suit under Section 230 involve internet service providers …, and not individual users." Nonetheless, cases that have addressed this issue have determined that the broad immunity in the statute extends to individual users. For example, in Barrett v. Rosenthal (Cal. 2006), an individual who posted a copy of an article she had received via email on two newsgroup websites was sued for republishing defamatory information. The California Supreme Court … determined that the term " '[u]ser' plainly refers to someone who uses something, and the statutory context makes it clear that Congress simply meant someone who uses an interactive computer service." … Given that Congress declared that "'[n]o provider or user of an interactive computer service shall be treated as [a] publisher or speaker,'" the court found no basis "for concluding that Congress intended to treat service providers and users differently," and that "the statute confers immunity on both." …

Subsequently, the United States District Court for the Eastern District of Virginia, noting that the CDA does not contain a definition of "user," turned to the plain meaning of the word. Directory Assistants, Inc. v. Supermedia, LLC (E.D. Va. 2012)…. [T]he court found that "a person who creates or develops unlawful content may be held liable, but … a user of an interactive computer service who finds and forwards via e-mail that content posted online in an interactive computer service by others is immune from liability."

We are persuaded by the reasoning set forth in these cases. The plaintiff identifies no case law that supports a contrary result. Rather, the plaintiff argues that because the text of the statute is ambiguous, the title of section 230(c)—"Protection for 'Good Samaritan' blocking and screening of offensive material"—should be used to resolve the ambiguity. We disagree, however, that the term "user" in the text of section 230 is ambiguous. "[H]eadings and titles are not meant to take the place of the detailed provisions of the text"; hence, "the wise rule that the title of a statute and the heading of a section cannot limit the plain meaning of the text." Likewise, to the extent the plaintiff asserts that the legislative history of section 230 compels the conclusion that Congress did not intend "users" to refer to individual users, we do not consider legislative history to construe a statute which is clear on its face.

Despite the plaintiff's assertion to the contrary, we conclude that it is evident that section 230 of the CDA abrogates the common law of defamation as applied to individual users. The CDA provides 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." We agree with the trial court that the statute's plain language confers immunity from suit upon users and that "Congress chose to immunize all users who repost[] the content of others." …

Congratulations to Adam R. Mordecai of Morrison Mahoney LLP and Debra L. Mayotte of  Desmarais Law Group, PLLC, who argued successfully on behalf of the defendants.