A Pennsylvania trial court recently held that for purposes of the federal Communications Decency Act, it is not the size of the blogger in the fight that matters. The question is, what function does the blogger – big or small – perform?
A plaintiff named Tricia Mezzacappa filed a lawsuit against Bernie O’Hare alleging O’Hare had defamed her and violated her privacy based on anonymous messages posted by third parties on O’Hare’s blog. O’Hare called his blog the “Lehigh Valley Rumblings.”
O’Hare asked the court to dismiss Mezzacappa’s complaint based on the CDA. That statute says the operator of an “interactive computer service” is not deemed the publisher of third party content – i.e. any content not supplied by the operator himself. Mezzacappa apparently felt the CDA did not apply to small time operators like O’Hare and the Lehigh Valley Rumblings. The court disagreed with that notion right out of the chute. It said, “[c]ourts have not limited application of the CDA's immunity to largescale interactive computer services, such as AOL or Google, nor have they refused to apply the definition of internet content provider to anonymous commenters.” While this conclusion is obvious from the plain language of the CDA, it’s nice to see a court occasionally underscore the obvious.
The court also rejected Mezzacappa’s contention that O’Hare blew the CDA immunity by actively moderating the site. According to Mezzacappa’s brief, O’Hare “will delete comments that he deems inappropriate, and often comments on his blog, that certain anonymous comments were disapproved. By engaging in this type of moderation, the reckless and defamatory anonymous comments in [Mezzacappa’s] [C]omplaint are allowed to stand, and are approved of by [O’Hare].”
But once again, the plain language of the CDA rendered this contention futile. An interactive computer service operator does not forfeit CDA protection by performing “traditional editorial functions” such as selecting which comments to delete.
So the court dismissed Mezzacappa’s claims. And the court imparted a valuable lesson. For purposes of the CDA and – to paraphrase the immortal Dr. Seuss classic “Horton Hears a Who” – “a publisher is a publisher no matter how small.”