EMAIL:> ——– Original Message ——–
Subject: Removal of potential defamatory material: Post 921
From: “Jaclyn Ward”
Date: Tue, October 30, 2007 9:20 pm
To whom it may concern,
I am writing in regards to a post (921) made on your website this morning,
Tuesday October 30th.
This picture of me was taken and posted without my consent. I have
provided a link to the picture specifically pertaining to me:
I have read through your site and understand that legally you do not take
reponsibility for any defamation or libelous print that may occur.While I
understand the legal basis supporting the freedom of speech and your ability
to do as you please with pictures and information as it becomes available to
you, I am particularly concerned with the potential defamation of reputation
and privacy that I may incur from both the picture and its comments. While
you assert that speculation and false information may readily occur on your
website, this does negates the fact that public access to such false
information and speculation about me may potentially harm my ability to
succeed in the work force in the future and maintain a reputable standard
for myself to adhere to. I feel the specific instance I am portrayed in
does not supplement the stated purpose of your website as it did not occur
in Scottsdale and thus does neither help nor hinder the success of your
I am not currently interested in pursuing legal action, although I have
consulted a judge, as well as a lawyer specifying in libel and slander, to
better understand the legal ramificatios of the situation. I only
respectfully ask that the picture and the accompanying comments are removed
as soon as possible. I respect the intentions of your website and do not
wish to hinder its success but rather assert that the succeess of your
website is not pursued at the sake of my own privacy and reputation.
The following information can be found on Ivan Hoffman’s, attorney at law,
website and may provide the foundation for justifying the removal of the
material concerning me on your website.
“The remedies the FTC has imposed on sites has generally been to order the
sites to notify those who provided information and make provision for those
parties to delete that information (opt out provisions). The violating
sites are often required to notify the third parties to whom the information
was provided to delete such information as well.”
I ask that you address the situation promptly and respectfully. I
appreciate your attention to the issue in advance.
Please contact me with any questions.
EMAIL RESPONCE FROM THE LEGENDARY KOCHARN KARDASHIAN
From: KOCHARN KARDASHIAN
Sent: Wednesday, October 31, 2007 9:52 AM
Subject: FW: [FWD: Removal of potential defamatory material: Post 921]
This firm represents the website www.DirtyScottsdale.com (“DS”). The operator of DS has sent me your email which is copied below in which you request the removal of “potential defamatory material” about you posted on DS including both comments and a photo in which you appear with two other people.
With regard to your photo, I appreciate your concerns but there is no legal basis for you to request the removal of this photo. First, since you appear to be looking directly at, and, in fact, posing for the camera, it is difficult to believe that “This picture was taken … without [your] consent.”
Second, regarding the fact that the photo has been posted on a publicly available website (DS), this is a matter of free speech and your consent is not required in order for the original photographer to send, or for DS to post, the photo since it depicts an interesting and (perhaps unfortunately) humorous situation (as the numerous comments beneath it reflect). The common law and the laws of many states do generally recognize an individual’s right to privacy in some situations, but that right does not extend to photos taken in public places such as bars, restaurants, streets, parties, or other public locations; “The taking of a photograph is not an invasion of privacy where the picture is taken on the public streets, or in a public place. This is true even if the photographer continuously follows the plaintiff, causing emotional distress.” 62A Am. Jur. 2d Privacy § 113 (citing Galella v. Onassis, 487 F.2d 986, 17 Fed. R. Serv. 2d 1205, 28 A.L.R. Fed. 879 (2d Cir. 1973) (applying New York law); King v. Crown Cork & Seal Co., 5 Ohio App. 3d 49, 449 N.E.2d 14 (6th Dist. 1982) (unauthorized photographing of plaintiff in restaurant parking lot)).
Separate and apart from the photograph, I understand that you are upset about some of the comments beneath the photo. Because you did not specifically identify which comments are offensive to you, I cannot respond directly with regard to whether or not the comments are capable of a defamatory meaning. However, in general, you need to understand that these comments were written by users of the DS site and not by the site itself.
In this situation, because DS is an “interactive website”, even if a user were to post a defamatory comment about you, DS is entirely immune from any lawsuit based on those comments because of a federal law called the Communications Decency Act, 47 U.S.C. § 230 (the CDA).
This federal statute, which was passed by Congress with the intent to â€œpromote unfettered speech, provides in relevant part: No 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) (emphasis added). Section 230 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. Green v. America Online, 318 F.3d 465, 470 (3rd Cir. 2003) (noting that the CDA, precludes courts from entertaining claims that would place a computer service provider in a publishers role, and therefore bars lawsuits seeking to hold a service provider liable for its exercise of a publishers traditional editorial functions – such as deciding whether to publish, withdraw, postpone, or alter content.)
Secondary authority has also explained that:
[The CDAs] provisions set up a complete shield from a defamation suit for an online service provider, absent an affirmative showing that the service was the actual author of the defamatory content. Accordingly, a number of courts have ruled that the ISP was immune from liability for defamation where allegedly libelous statements were made available by third parties through an ISP or were posted by third parties on the server’s billboards, as the ISP fell within the scope of 47 U.S.C.A. Â§ 230.
Jay M. Zitter, J.D., Annotation Liability of Internet Service Provider for Internet or Email Defamation § 2, 84 A.L.R.5th 169 (2000) (emphasis added) (citing Pantazis, Note, Zeran v America Online, Inc.: Insulating Internet Service Providers From Defamation Liability, 34 Wake Forest L. Rev. 531 (1999)); see also Batzel v. Smith, 333 F.3d 1018, 102728 (9th Cir. 2003) (recognizing, Making interactive computer services and their users liable for the speech of third parties would severely restrict the information available on the Internet. Section 230 therefore sought to prevent lawsuits from shutting down websites and other services on the Internet.) (emphasis added) (quoting Ben Ezra, Weinstein, & Co. v. America Online Inc., 206 F.3d 980, 98384 (10th Cir. 2000).
I do not know which judge/lawyer you may have consulted with, but if they are at all familiar with Internet law, they should have advised you that Arizona has reviewed, applied and adopted the CDA as providing complete immunity to interactive websites such as DS. See Austin v. Crystaltech Web Hosting, 211 Ariz. 569, 125 P.3d 389 (App. 2005) (holding website operator/ISP was entitled to immunity under the CDA for statements posted by a third party).
What all of this means is very simple — if a user of DS posted something defamatory about you on the site, you have every right to sue that person for what they have said (assuming the statements are actually false and defamatory). However, you cannot sue DS for any statements posted by its users because the CDA provides immunity to the site absent an affirmative showing that the site itself authored the defamatory statements.
Having said all of this, if you wish to identify any specific comments which you believe are false/defamatory, I will gladly discuss them with the operator of DS and determine whether DS is willing to delete those comments, even if it is under no legal obligation to do so.