Enforcing Injunction Against Non-Party — Terms of Service Inadequate to Link Website Provider to Poster of Defamatory Statements Sufficiently to Subject Provider to Injunction

From Blockowicz v. Williams, 2009 U.S. Dist. LEXIS 118599 (N.D. Ill. Dec. 21, 2009):

The Communications Decency Act ("CDA"), 47 U.S.C. § 230, limits the ability of an aggrieved party to sue an internet website host for defamatory statements posted on its site by third-parties. See 47 U.S.C. § 230(c). Avoiding the CDA's limitations, the Blockowiczs instead sued the authors of the defamatory posts — the Defendants — and sought an injunction requiring that the defamatory postings be removed from the websites. Whether the court can enforce the permanent injunction against third party website providers, such as Xcentric, to compel them to remove defamatory material from their sites appears to be an issue of first impression. For the reasons explained below, the court finds that it should not exercise its authority under the facts in this case.

To enforce the injunction against a non-party under Federal Rule of Civil Procedure 65(d), that party must be acting in concert or legally identified (i.e. acting in the capacity of an agent, employee, officer, etc.) with the enjoined party. Homa, 514 F.3d at 674; Kirschenbaum, 156 F.3d at 794. In this case, the Blockowiczs argue that the on-line agreement Defendants entered into with Xcentric when they posted the defamatory statements on ripoffreport.com demonstrates that Xcentric is in "active concert or participation" with Defendants in their violation of the injunction. The court disagrees.

Among other provisions, before posting a report on ripoffreport.com, the poster agrees to the following "Terms of Service":

You will NOT post on ROR [Ripoff Report] any defamatory, inaccurate, abusive, obscene, profane, offensive, threatening, harassing, racially offensive, or illegal material, or any material that infringes or violates another party's rights (including, but not limited to, intellectual property rights, and rights of privacy and publicity). You will use ROR in a manner consistent with any and all applicable laws and regulations. By posting information on ROR, you warrant and represent that the information is truthful and accurate.

You will defend, indemnify, and hold harmless Xcentric, its officers, directors, employees, agents and third parties, for any losses, costs, liabilities and expenses (including reasonable attorneys' fees) relating to or arising out of your use of ROR, including, but not limited to, any breach by you of the terms of this Agreement[.]

By posting information on ROR, you understand and agree that the material will not be removed even at your request. You shall remain solely responsible for the content of your postings on ROR.

By posting information or content to any public area of ripoffreport.com, you automatically grant, and you represent and warrant that you have the right to grant, to Xcentric an irrevocable, perpetual, fully-paid, worldwide exclusive license to use, copy, perform, display and distribute such information and content and to prepare derivative works of, or incorporate into other works, such information and content, and to grant and authorize sublicenses of the foregoing.

***

According to the Blockowiczs, these "Terms of Service" "are essentially a promise to aid and abet the Defendants in continuing defamation regardless of any court orders." *** Specifically, the Blockowiczs argue that Xcentric's ongoing promise to publish and never remove the defamatory statements in exchange for indemnification and an exclusive copyright license to those statements demonstrates that Xcentric is in active concert or participation with Defendants. The provision requiring users to post "truthful and accurate" statements, the Blockowiczs argue, "is mere lip service." *** Essentially, the Blockowiczs ask the court to ignore the terms of the agreement, which expressly prohibit defamatory postings, and instead interpret the Terms of Service as a deliberate announcement to potential defamers that ripoffreport.com is a safe haven for defamation. *** The record, however, is devoid of any evidence that Xcentric intends to protect defamers and aid them in circumventing court orders. Consequently, this court is unwilling to draw such an inference based on attorney conjecture. The Blockowiczs similarly have not presented any evidence that Xcentric has had any contact with Defendants since the entry of the permanent injunction or that it has worked in concert with Defendants to violate this court's October 6, 2009 order. Therefore, the court finds that Xcentric's tenuous connection to Defendants is insufficient to compel Xcentric's compliance with the court's permanent injunction.

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