Author and foreign court lose battle to remove libel from US site

A US court has snubbed a ruling by a Canadian court that ordered the removal of defamatory comments from a US website. The author had also asked that his comments be removed, but the site refused to comply and the US court has supported that decision.

Canadian firm Global Royalties, a broker in gemstone investments, sued Xcentric Ventures, an Arizona company that runs a website called RipoffReport.com. The site invites consumers to post complaints about companies. Site user Spencer Sullivan posted three statements about Global, one of which included a reference to its business as a "scam".

Global's lawyers approached Sullivan and Sullivan subsequently asked Xcentric to remove his entries. Xcentric refused. Global sued Sullivan and Xcentric in a court in Ontario. Xcentric did not appear and the Ontario court issued an order requiring Xcentric to remove the offending statements from its site.

Global Royalties sought enforcement of that order in the US District Court for the District of Arizona and asserted a defamation claim against Xcentric.

But US District Judge Frederick Martone ruled last week that under US law, foreign judgments granting injunctions are not generally entitled to enforcement. He dismissed Global's claim for enforcement of the order.

The defamation claim was also rejected. Judge Martone referred to the Communications Decency Act (CDA), noting that it "broadly immunizes website operators from liability for third-party content".

Global had argued that Xcentric "adopted" Sullivan's statements by failing to remove them after Sullivan disavowed their contents and asked that they be taken down. This adoption, said Globla, is tantamount to creation or development.

Judge Martone disagreed. It is well established, he said, that notice of the unlawful nature of content is not enough to make it the website operator's own speech.

"Defendant's failure to remove the three statements was an 'exercise of a publisher's traditional editorial functions' and does not defeat CDA immunity," he wrote.

Judge Martone concluded: "If it was an unintended consequence of the CDA to render plaintiffs helpless against website operators who refuse to remove allegedly defamatory content, the remedy lies with Congress through amendment to the CDA."

He dismissed the case though gave leave to Global to file an amended complaint, "[because] we do not know whether plaintiff can state a claim".

In the UK, there is no such protection for website hosts. Websites have a duty to remove or block access to defamatory user comments once they are made aware of them. They risk becoming responsible for those comments if they fail to do so 'expeditiously'.

David Woods, a litigation specialist with Pinsent Masons, the law firm behind OUT-LAW.COM, said the case highlights an inconsistency in US law.

"US law takes the same notice-and-takedown approach as Europe to copyright-protected content. Once a host is made aware of copyright-infringing images or songs, they must be removed quickly," he said. "But the US doesn't apply that same approach to libellous comment."

"It's inconsistent, because US law does recognise defamation as a necessary limitation on the right of free speech. You can sue a person who defames you in the US. But for some reason, the CDA deems defamatory content worthy of protection on the web and there seems to be no way to force the deletion of that content. The CDA is a strange law indeed," said Woods.