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Website Service Provider’s Absolute Immunity in Florida

Florida’s Third District Court of Appeals (3rd DCA) ruled that the federal Communications Decency Act, 47 U.S.C. § 230 (“CDA”), provides absolute immunity to Rip Off Report, a computer service provider who maintains an interactive website permitting others to post comments or blogs. Giordano v. Romeo, Case no. 3D11-707 (3rd DCA, Dec. 28, 2011) (available here). Giordano sued Romeo and the website service provider Xcentric Ventures, LLC who maintains a blog posting service website at Xcentric maintains the infamous RipOff Report website permitting its users to post critical comments about businesses.

Romeo, a disgruntled recipient of G&S’ services, went online and posted false and defamatory claims about Giordano and G&S, identifying Giordano as a convicted felon and claiming, among other things, that the employees of G&S illegally disbursed medications and that the facility itself was dangerous. Giordano sued Romero and Xcentric for defamation and won at trial. The trial court found that a least a portion of the blog postings were defamatory per se. Co-defendant Romero “begged” co-defendant Xcentric to remove the offensive material but, even after trial and entry of an injunction, Xcentric refused to remove the defamatory material.

Xcentric moved to dismiss the complaint against it on the basis of its immunity from suit under the CDA which specifies that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1). The CDA further provides that “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” 47 U.S.C. § 230(e)(3). The trial court agreed with Xcentric.

“The Florida Supreme Court has held that the CDA provides absolute immunity to interactive computer services like Xcentric. In Doe v. America Online, Inc., 783 So. 2d 1010 (Fla. 2001), an internet service provider that had allowed third parties to publish allegedly illegal postings on the internet was deemed immune from suit. Relying on the Fourth Circuit decision in Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997), the Florida Supreme Court held that ‘section 230 expressly bars ‘any actions’ and we are compelled to give the language of this preemptive law its plain meaning. Doe 783 So. 2d at 1018. Further, the Court adopted the reasoning of Zeran unambiguously, stating that it was accepting Zeran’s account of the scope and purpose of the CDA as a basis for our reading of section 230. Doe, 783 So. 2d at 1015. That account included the statement that ‘Section 230 was enacted, in part, to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum.’ Zeran, 129 F.3d at 330. Consequently, under Florida law, section 230 of the CDA creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.’ Id..” Giordano, Slip opn. 3-4.

The 3rd DCA called Xcentric’s business practices appalling because it “creat[ed] a forum for defamation,” with no checks or balances to assure the posting of reliable information and no protocol to determine “whether its users are availing themselves of its services for the purpose of tortious or illegal conduct.” Xcentric’s policy is “never to remove a post.” Giordano at p. 4.

Notwithstanding this sharp language by the 3rd DCA, it found “Xcentric enjoys complete immunity from any action brought against it as a result of the posting of third party users of its website.” Giordano, pg. 5.

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