A trial court in Minnesota recently denied a motion to dismiss by a defamation defendant who tried to rely on Section 230 of the Communications Decency Act. The Court joined other courts from around the country in concluding that Section 230 immunity doesn't cover a poster who comments on the offending post.
The case concerns a girls High School Hockey coach named David Marvin. He brought a defamation suit against several defendants who are either current or former parents of players on the team. According to Marvin's complaint, the defendants circulated an open letter to local news outlets and on social media. The letter accused Marvin of inappropriate and illegal conduct that was later deemed unfounded.
A defendant names Shana Lanctot posted the letter on her personal Facebook feed and later appeared for an interview on the "Grand Forks Best Source" podcast. In the interview, Lanctot read the letter in its entirety and singled out Marvin as "the subject of the letter."
Defendant Kristin Coauette posted on Facebook a link to the interview. In addition to providing the link, Ms. Coauette added commentary, which provided in part: "There have been brave families in Warroad who have stood up for what was right and they need all of your help and support." She later republished the entire letter, with the caption "what a brave parent group to come forward."
Section 230 immunizes operators or users of an interactive computer service who post third party content. This is contrary to the law as it applies to print publications, which are liable for anything they print, even a third party created the content. On either side of the spectrum, the analysis is fairly easy. If someone reposts something created by another, there is no liability for the repost. On the other hand, if someone posts their own content, they can be liable. This case presented a scenario somewhere in the middle. Coauette didn't write the letter, but she added commentary when she re-posted it. The question for the court was whether the commentary blew the Section 230 immunity.
In reaching its decision, the Minnesota Court looked at cases from across the country and applied the "material contribution test." The question under this test is whether the commentary supports or endorses the actionable speech. In the Minnesota Court's view, Ms. Coauette's commentary did just that. The Court noted that: [i]n this case, Coauette clearly went beyond mere reposting of information as she authored her own additional content. . . . Coauette's comments are not directly defamatory toward Plaintiff. However, it is apparent from Coauette's posts that she felt she was informing the community of an important issue by reposting the . . . letter and the podcast. Her comments with the letter and the linked podcast qualify as an endorsement."
Based on this finding, the court concluded that Ms. Coauette made a material contribution to the defamatory content and denied her motion to dismiss. The lesson here is that it's okay to repost content, but to avoid liability, it's best not to comment.
