A hard-fought battle between two sandwich franchises has yielded an opinion dealing with the application of Section 230 of the Communications Decency Act to videos submitted as part of an online contest. The result is an unusual ruling that sends to a jury the issue of whether the advertiser that sponsored the contest was an "information content provider" with respect to the videos, and thus is ineligible for CDA Section 230 protection. Doctor's Associates v. QIP Holder LLC, 2010 U.S. Dist. LEXIS 14687 (D. Conn. Feb. 19, 2010).

The dispute between the Subway sandwich franchise (Doctor’s Associates) and the Quiznos sandwich franchise (QIP Holder) stems from an advertising campaign that commenced in 2006. Quiznos sought to compare the meat content of certain of its sandwich products to comparable Subway offerings, and fashioned a campaign that included television advertisements and an online video contest that solicited submissions from users who were asked to create a video demonstrating "why you think Quiznos is better." The contest Web site was hosted at a domain, "meatnomeat.com," which featured four sample videos prepared by the advertising agency that fashioned the campaign and also displayed user-generated videos that Quiznos and its advertising agency deemed to satisfy the contest rules.

Subway brought an action against Quiznos and iFilm, which partnered with Quiznos on the video contest, under the Lanham Act for false and deceptive advertising and various related state law claims, alleging that, in brief summary, the tv ads, the sample videos and the user-submitted videos unfairly compared its products with Quiznos products. On Quiznos’s motion for summary judgment, the court found numerous issues of material fact, including on the issue of whether Quiznos made false representations in connection with the Internet portion of the campaign.

With respect to the user-generated videos, Quiznos argued that it was immune from liability under CDA Section 230 because the contestants were the exclusive creators of the videos, and that Subway sought to hold Quiznos liable as a publisher of those videos in contravention of the proscription in CDA Section 230(c)(1) against treating a provider or user of an interactive computer service as the "publisher or speaker of any information provide by another information content provider." Subway argued that Quiznos went beyond the role of a traditional publisher in that it solicited disparaging material and shaped the ultimate content of the videos such that it was "responsible" for the creation or development of the content.

On this issue, the court referenced the opinion in MCW v. badbusinessbureau.com, 2004 U.S. Dist. LEXIS 6678 (N.D. Tex. Apr. 14, 2004), which featured that perennial CDA Section 230 litigant, the RipoffReport Web site and its operator, Ed Magedson. The MCW ruling is one of the very few of the many brought against the RipoffReport (a/k/a badbusinessbureau.com, Xcentric Ventures) in which the plaintiff survived a pre-trial motion brought pursuant to CDA Section 230.

The court In Doctor's Associates v. QIP concluded that it is "unclear" at this stage of the litigation whether Quiznos went beyond the traditional role of a publisher with respect to the contest videos and "actively participated in creating or developing the third-party content" and thereby went beyond the traditional role of a publisher with respect to the contest videos:

In MCW, for instance, the operator of a consumer complaint website was found to have gone beyond the traditional publisher's role because they "actively encourage, instruct, and participate in the consumer complaints posted on the websites" by, inter alia, encouraging consumers to take pictures of a company's owner and offices for posting on the website. 2004 U.S. Dist. LEXIS 6678 at *34-*35. In the MCW Court's view, by actively soliciting disparaging material, the defendants went beyond the publisher's role and "incurred responsibility for the information developed and created by consumers." Id. at *35.

Here, the Defendants invited contestants to submit videos comparing Subway and Quiznos and demonstrating "why you think Quiznos is better." The domain name used to solicit entrants for the Contest, "meatnomeat.com," is arguably a literal falsity because it implies that the Subway sandwich has "no meat." In addition, the four "sample videos" designed by the Defendants to shape the Contest submissions arguably contain false representations because they depict the Subway sandwich as having no meat or less meat than a Quiznos sandwich. In these circumstances, the Court cannot conclude, as a matter of law, that the Defendants are not responsible for the creation and development of the contestant materials. Whether the Defendants are responsible for creating or developing the contestant videos is an issue of material fact, best submitted to the jury after viewing all of the relevant evidence. A reasonable jury may well conclude that the Defendants did not merely post the arguably disparaging content contained in the contestant videos, but instead actively solicited disparaging representations about Subway and thus were responsible for the creation or development of the offending contestant videos. FN 5

FN 5:

As the MCW Court explained, the CDA "does not require a court to determine only whether a party creates or develops the information at issue. Being responsible for the creation or development is sufficient." 2004 U.S. Dist. LEXIS 6678 at *35 n.12. "This distinction is significant because a party may be responsible for information created or developed by a third party without actually creating or developing the information itself." Id