The U.S. Seventh Circuit Court of Appeals and a state trial court in Florida – within one day of each other, and in cases involving the same website – recently reached contradictory conclusions about the authority of judges to enforce third-party takedown orders against Web operators. The stark divergence of judicial opinions highlights the difficulties courts continue to face in developing consistent principles governing jurisdiction over websites.

In the Seventh Circuit case, the panel agreed with the trial judge and held that – where a non-party website’s operator has done “nothing more than . . . [ignore] the injunction” – courts lack the authority under the Federal Rules to order to take down allegedly defamatory postings. Blockowicz v. Williams, 2010 WL 5262726, *5 (7th Cir. Dec. 27, 2010).

On the day following this decision, a Florida Circuit Court judge in Miami, in an unrelated case, issued an order enjoining the same website’s operator, on pain of contempt, from maintaining the statements about the plaintiffs posted on the website. Giordano v. Romeo, No. 09-68539-CA-25, “Final Order on Plaintiffs’ Motion for Temporary Injunctive Relief” at 4 (Fla. 11th Cir. Ct. Dec. 28 2010).

The “Ripoff Report” Website

Xcentric Ventures, LLC, an Arizona-based company, operates the “Ripoff Report” site, which describes itself as “a worldwide consumer reporting Web site and publication, by consumers, for consumers, to file and document complaints about companies or individuals.” As of this writing, the site says that it contains more than 570,000 indexed, searchable reports about businesses and individuals.

The site has a business model of its own. It states that if the subject of a report believes it is the subject of a false complaint, it may enter the “Ripoff Report’s VIP Arbitration Program” by paying $2,000. The fee pays for the services of one of the “private arbitrators” under contract with the site’s owner, “who have extensive experience, including experience as judges in court.” The site promises that, after the arbitrator reviews submissions from the business, “any statements of fact that the arbitrator determines to be false will be removed from the original report.”

However, the site’s Terms of Service makes clear that, absent participation in this arbitration program, the postings are “a permanent record of disputes, including disputes which have been fully resolved” – and further, that “in order to maintain a complete record, information posted on [the site] will not be removed.”

The Seventh Circuit Blockowicz Case

In the Seventh Circuit Blockowicz case, the Northern District of Illinois court had enjoined the individual posters, ordering that they remove the crude, critical comments about the plaintiffs. When the defendants failed to comply, the plaintiffs asked the judge to enforce the injunction and compel to remove the statements. They argued that under Federal Rule of Civil Procedure 65, which allows a federal court to issue an injunction against those who are “in active concert or participation” with an enjoined party and who have actual notice of the injunction, the website’s operator was bound by the injunction. The Northern District of Illinois court disagreed, however, and determined that it lacked the power to require the host and manager of the website to remove the statement.

On appeal, the Seventh Circuit affirmed. The court said that the website operators could not be bound by the injunction under Rule 65 and therefore could not be compelled to remove the allegedly defamatory statement. The appeals court held that, because all of the website’s actions predated the injunction, its operator did not have actual notice of the injunction at the time it acted, and that the operator therefore did not aid and abet the posters’ violation of the injunction or act in concert with them.

The Seventh Circuit also rejected the argument that the website’s failure to take down the posts, even though it had the technical ability to do so, constituted action in concert with the posters. Mere inactivity, the court concluded, is not aiding and abetting the posters’ violation of the injunction: “Since the injunction was issued, [the website operator] has simply done nothing, and it has certainly not actively assisted the defendants in violating the injunction.”

The Florida Court Decision in Giordano

In Florida, the Giordano court took a radically opposite view of the legal consequences of Ripoff Report’s decision to ignore that court’s injunction. There, the owner of G&G Holistics Addiction Treatment Center originally sued both the poster and Ripoff Report’s operator for postings alleging unsanitary conditions and poor staff treatment at the facility, and for calling the business’s owner a convicted felon.

The trial judge had dismissed the website from the lawsuit, finding that the Communications Decency Act, 48 U.S.C. §230(c)(1) immunized the operator. The poster then entered into a stipulated injunction with the plaintiffs that required her to ask the website operator to take down her postings. After the website refused, the judge held an immediate hearing and ordered the operator to take down the postings.

In a curious ruling that contradicts a thread of Communication Decency Act of 1996 (CDA) decisions around the country, the Florida judge held that the statute only immunizes a website from liability for damages, not from contempt sanctions. “The Court specifically finds that the CDA does not categorically bar this Court from issuing an injunction against” the website’s operator, the order stated. Relying on a provision in the CDA (§230(e)(3)) that preserves the authority of state judges to enforce state laws that are “consistent” with the CDA, the Florida judge further held: “The Court does not believe that Congress intended to provide immunity from an equitable injunction in such a situation.”

The Court finds that in this situation, Xecentric [sic] refusal to comply with the Court’s order and the demand of the publisher to remove the statements, makes Xcentric the publisher of the statements. This is different from determining that they are the publisher solely because of the posting. However, even if Xcentric were not treated as the publisher (and indeed, Plaintiffs do not seek to impose civil liability upon Xcentric), the CDA does not bar this Court from entering injunctive relief.

In a post commenting on this case, Ripoff Report said, “We intend to appeal the court’s decision because we believe that it violates both the First Amendment right to free speech and, in addition, we believe the court’s injunction is barred by federal law, specifically the Communications Decency Act, 47 U.S.C. § 230.”