You don't have to look at your watch. It's still apocalyptic 2020, although today's blog post will take you 15 years back when plaintiffs were still hoping to hold message board operators accountable for user posting. Case law has vociferously surpassed these claims for more than 15 years, but these plaintiffs and their attorneys ** felt it was worth trying the matter before the Eighth Circle Court of Appeals. The appellate court tells the plaintiffs in a breezy but published statement what I would have said to the plaintiffs (even free of charge!) In a 10-minute initial consultation: NOPE.
** Not just a lawyer. FOUR lawyers in THREE different law firms in THREE different states. None of them successfully stopped the customer from filing claims against Allnurses. All of them were likely paid. I assume that they will even add their practicing experience to their fixed BIOS prior to the eighth Circuit. Make Internet Law Great Again (#MILGA).
The lead plaintiff, East Coast Test Prep, provides test prep assistance to nurses. Allnurses operates a website for nurses and nursing students. On the message boards, users reported on the plaintiff's test prep services, including discussions of the value of test prep and allegations of a federal investigation. The plaintiff did not like the content of these user contributions and sued several users and allnurses. Allnurses replied and then filed a judgment on the pleadings. The district court ruled in favor of Allnurses. The appeals court confirmed.
Section 230. The court says Allnurses is an ICS provider and the defamation claim treats them as an editor or a speaker. The only open question is whether the user contributions are third-party content. You are:
Test Prep claimed that Russ and Moeller were paid to deploy and were "volunteers, employees, servants, contractors or representatives of Allnurses". We conclude that the sum total of the allegations of fact in the complaint was merely a "mere possibility" that Allnurses was responsible, in whole or in part, for creating or developing the Russ and Moeller positions.
Quoted from Iqbal, Huon and Kimzey. This finding is so much smarter than Huon's terrible opinion that the court held plaintiff's allegations that Gawker himself wrote the "user" comments to be true. However, the pleading standards allow and require the court to examine the allegations for credibility. The Huon allegations were never credible, which resulted in a bogus case going further than it should have. In contrast, this court requires a fair amount of evidence in the appeal. So I think this case is more predictive of how courts will deal with the issues than the Huon runaway.
Contract. Plaintiffs alleged that Allnurses failed to enforce the covenants in its terms and conditions in order to limit the bad behavior of other users. This is exactly the same argument made in Noah v. AOL failed. It fails again. The plaintiffs tried to structure a direct breach of contract in the same way:
Allnurses did not promise in the first paragraph quoted to identify and immediately remove all potentially false statements. Instead, users were clearly prohibited from posting defamatory information and informed that illegal or inappropriate posts would be removed. Allnurses' statement that it "promotes the idea of lively debate" was not a promise to keep its discussion threads open, especially given the provision that "(p) problematic posts / threads may be deleted or closed".
The terms and conditions have not made sufficiently "clear and unambiguous" promises to support the promissory notes.
Amounted to. Plaintiffs alleged that Allnurses applied to be a fair and impartial forum, but did not disclose their relationships with their financial sponsors. Iqbal is cleaning this up too.
Case dismissed. Unfortunately, allnurses are unlikely to see sanctions or fee shifts imposed even though the lawsuit should never have been brought. A federal anti-SLAPP law could have been helpful here.
Case Quote: East Coast Test Prep LLC v Allnurses.com, Inc., 2020 WL 4809911 (8th Cir. August 19, 2020)