Defamation / Reputation
Afanasyev v. Zlotnikov
Closed Expands Expression
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A Circuit Court in Virginia granted Twitter’s motion to dismiss in a lawsuit brought by U.S. Congressman Devin Nunes. Nunes had invoked the state power to identify anonymous critics who had posted critical comments using the satirical Twitter pseudonyms ‘@Devin’s Cow’ and ‘@Devin’s Mom’. In this action, Nunes sued Twitter and the owners of three Twitter accounts: Elizabeth A. Mair (@LizMair); anonymous individual using the account name DevinNunes’ Mom, and an anonymous individual using the account name Devin Nunes’ Cow, for allegedly false and defamatory statements. The Circuit Court dismissed the lawsuit, holding that Twitter qualified as an ‘interactive computer resource’ under § 230 (c) (1) of the Communications Decency Act and was liable to immunity under federal laws. The Court noted that any lawsuits seeking to hold platforms like Twitter liable for exercising a publisher’s traditional editorial functions (such as deciding whether to withdraw, publish, alter or postpone content) were barred.
The Plaintiff, Devin Nunes is a prominent representative from the 22nd congressional district in California. Having been re-elected to serve the Congress in November 2018 with a narrower margin than the last elections, Nunes had claimed that the Defendant, Twitter (a renowned microblogging platform), orchestrated a nefarious scheme to silence his voice and assassinate his character by enabling the publication of several false and defamatory statements against him. Specifically, he identified two such accounts operating on the platform, a satirical Twitter account entitled ‘Devin Nunes’ cow’ (@DevinCow) as well as an anonymous account named DevinNunes’ Mom. The accounts, apparently a humorous reference to the fact that Nunes grew up on a family dairy farm in Tulare, California, had co-posted alleged defamatory online messages. These included references to Nunes as a “treasonous cowpoke” or a “traitor,” calls for investigations, prosecution of and indictment of Nunes for unspecified crimes, and talks about his raising and uses of campaign funds.
On March 19, 2019, the Plaintiff filed a complaint against Twitter, the owner of two anonymous Twitter accounts, and the political strategist Elizabeth Mair (operating a Twitter account @LizMair) as well as her firm, Mair Strategies LLC. He alleged that the actions of the Defendants resulted in defamation, conspiracy to defame, and other torts. Nunes also served Twitter with a subpoena seeking to identify the owners of the two anonymous Twitter accounts.
On May 19, 2019, Twitter moved to quash the subpoena, claiming that the Court lacked personal jurisdiction in the matter on account of an improper venue (Twitter is incorporated in California), as the mandatory forum selection clause in Twitter’s terms of service required the Plaintiff to file a case in San Francisco, California. Along with Twitter and in support of the motion to dismiss, on May 14, 2019, Elizabeth Mair filed a separate memorandum invoking forum non conveniens as a ground to dismiss the motion. Forum non conveniens principles provide that the lawsuit be brought where the witnesses, evidence, and operative facts will be overwhelmingly found and not in a forum having only a tangential relationship to the dispute. Accordingly, she contested that the appropriate forum conveniens was California and it would be profoundly inconvenient and burdensome to litigate the same in Virginia. On October 2, 2019, the Court denied Mair’s motion to dismiss, finding that Mair lived in Virginia when she posted alleged tweets about Nunes.
While Twitter’s first motion to dismiss was still pending before the Court, it filed a second motion to argue on separate grounds. It claimed that Nunes wrongly sued Twitter over disparaging remarks by anonymous writers as s. 230(c) of the Communications Decency Act (CDA) granted it a broad immunity from liability for comments of its users. Under Federal law, no providers of an ‘interactive computer service’ could be treated as the publisher or speaker of things said by a third party on their platform, as per Twitter.
Judge Marshall delivered the opinion of the Henrico County Circuit Court, Virginia, deciding on the principle issue whether the Twitter was liable for the alleged defamatory tweets made by anonymous accounts against the Plaintiff.
Before the Court, Nunes had argued that Twitter was not entitled to be granted a motion to dismiss on the ground that the immunity argument raised by Twitter was ‘an affirmative defense’ and was required to be asserted as an affirmative defense in the answer to the lawsuit [p. 2]. An affirmative defense can be raised when the Defendant accepts the complaints made against him but argues that there is another reason why the claim against him should fail. Consequently, Nunes claimed that in the presence of a first motion to dismiss filed by Twitter challenging jurisdiction and venue of the Court, a second motion to dismiss the suit on the basis of immunity was improper before the Court.
The immunity claimed by Twitter was pursuant to 47 U.S. Code § 230 (c) (1), which provides that an ‘interactive computer service’ can’t be treated as publisher or speaker of third-party content. Nunes alleged that as an information content provider, Twitter did not qualify for protection under CDA and § 230 (c) (1) did not apply to the Defendant. Since Twitter was capable of making decisions regarding approval and disapproval of content to be posted on its internet platform, it was in fact, a creator of content. By allowing defamatory content on its platform, Twitter was, therefore, liable for defamation as well as negligent to allow the defamatory content to remain on its platform.
While the Court took cognizance of these claims, it rejected them on multiple grounds. The Court found that the Defendant’s first and second motion to dismiss were two separate claims, first concerning venue and jurisdiction of the Court and the second concerning immunity. Thus, Twitter was allowed to file a motion to dismiss claiming immunity before filing an answer. The Court relied upon the reasoning in Clark v. Va. Department of State Police 291 VA 725 (2016) to hold that it was appropriate for the Court to dismiss the suit on a claim contesting immunity from suit under a federal or state law.
Once the Court had declared the motion to dismiss as proper, it moved further to decide on Twitter’s immunity claim. At the outset, it discarded the Plaintiff’s allegations that Twitter was present with the author/ helped draft content that was defamatory as baseless and without evidence. On the claim that the Twitter was responsible for defamatory content placed by others on its platform as well as its negligence in failing to remove the same, the Court refused to treat Twitter as publisher or speaker of content posed by others. It relied on the landmark ruling in Zeran v. Am. Online Inc. 129 F.3d 327 (1997) to note that Courts were prohibited from entertaining claims that would place a ‘computer service provider in a publisher’s role’ by virtue of § 230, if the information originated from a third party user of a service. Accordingly, platforms cannot be held liable for exercising publisher’s traditional editorial functions (such as deciding whether to withdraw, publish, alter or postpone content) under § 230 (c) (1).
Next, the Court addressed the Plaintiff’s allegations that Twitter had a ‘bias towards a point of view’ [p. 3] which, in turn, governed the majority of Twithetter’s decisions concerning content allowed to be published on its platform, making it a provider of content. On this front, the Court drew a parallel to the allegations in Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc. 591 F.3d 250 concerning one-sided content decisions and held that in a similar way the service provider was deemed immune under § 230 in the Nemet case, Twitter was not a content provider and was immune from defamation claims by the Plaintiff.
Finally, based on the rulings in Nemet and Zeran cases, the Court granted Twitter immunity from all civil liability as well as the Plaintiff’s negligence claim.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
One of the core principles of the First Amendment rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential for public debate, and that a free press is a condition of a free society. It is because of the Internet’s vast social utility that content-based restrictions on Internet speech receive the full scope of First Amendment scrutiny. Longstanding precedent has recognized the fact that speakers have a First Amendment right to communicate anonymously, so long as they do not violate the law in doing so. This case presents one such conflict between rights to obtain redress from alleged perpetrators of civil wrongs and the rights of anonymity of those who have done no wrong. The case protects free speech by preventing irreparable injury to the First Amendment rights of Twitter users to remain anonymous. By ensuring Twitter’s immunity, the case also stands true to the intended goal of the Congress to promote unfettered free speech by immunizing service providers from liability for blocking or screening content.
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