Digest Comment: Determining the Proper Scope of Prior Restraints against Blogs in Defamation Cases

Editorial Policy

Libel litigation against bloggers has intensified in recent years as the blogosphere continues to experience rapid growth. The threats database of the Citizen Media Law Project (“CMLP”) shows that since 2000, there have been more than 310 lawsuits accusing blog and forum owners of defamation in U.S. courts. Often central to these disputes is the tension between the right to free speech and the need to restrict the rapid spread of defamatory materials on the Internet. The balance is particularly hard to strike when a plaintiff seeks a prior restraint, an extraordinary remedy that immediately enjoins the defendant’s speech at the onset of a lawsuit.

In December 2009, a New Jersey court issued such a prior restraint that compelled the complete shutdown of three blogs in Apex Tech. Group, Inc. v. Doe(s) 1-10. The order evoked keen debate among media law experts regarding the proper scope of prior restraints on Internet media such as blogs and forums. Kurt Opsahl, a senior attorney with the Electronic Frontier Foundation (“EFF”), criticized the prior restraint for being “dangerously overreaching” in an EFF blog post. Vivek Wadhwa, a senior research associate at Harvard Law School, voiced his support for the takedown on TechCrunch, claiming that the EFF was “a tad overzealous” in defending the websites involved. Taken together, the two articles serve as an appropriate starting point for determining how much of a blog can be properly censored by a prior restraint under a defamation claim.

A summary of the facts is necessary to contextualize Opsahl and Wadhwa’s arguments. The plaintiff, Apex Technology Group, Inc. (“Apex”), described itself as “in the business of providing skilled computer consultants.” On or about November 30, 2009, Apex became aware that an anonymous party had posted two allegedly defamatory posts about Apex on Endh1b.com, an Internet forum that allowed its users to anonymously post about the H–1B visa program.[1] Apex contacted the owner of Endh1b.com via e-mail and asked for the removal of the posts in question. Instead of complying with Apex’s request, the owner of Endh1b.com published Apex’s e-mail in a new post, accused Apex of being an “Indian bodyshop,” and solicited donations for legal fees. The allegedly defamatory materials on Endh1b.com were subsequently cross-posted to Itgrunt.com and Guestworkerfraud.com, two blogs similarly dedicated to advocating for the abolishment of the H–1B visa program. Apex asked the court to compel the temporary removal of the allegedly defamatory materials and the disclosure of identifying information for the anonymous individuals who posted about Apex. On December 23, the court issued a prior restraint after an evidentiary hearing. The court’s order went beyond what Apex sought by ordering several hosting service providers to “immediately shut down and disable” Endh1b.com, Itgrunt.com, and Guestworkerfraud.com.

Opsahl proposed two arguments in suggesting that the prior restraint reached too broadly. The first line of argument focused on how much content the restraint affected. Opsahl claimed that the order improperly took down blog posts on the three websites that were completely unrelated to Apex, analogizing the case to shutting down Amazon.com or Yelp.com because of a few disparaging reviews. Opsahl argued that the court should have issued a narrow prior restraint that limited removal to the offending posts.

This seemingly straightforward analogy between Endh1b.com and Yelp.com overlooks a key distinction between the two. Yelp.com is a comment-driven website where users rate unrelated business establishments. The reviews for each business, as quantified by a number-of-star rating system, are usually diverse. In comparison, Endh1b.com hosted user postings that dealt exclusively with one topic: the H–1B visa program. As suggested by the forum’s name, its users advocated predominately for the visa program’s abolishment. Yelp.com and Endh1b.com represent two extremes of a sliding scale based on comment multiplicity and diversity. On one end of the spectrum are websites like Yelp.com and Amazon.com whose users express diverse viewpoints on unrelated items. On the other end are websites like Endh1b.com whose user comments revolve around one pivotal topic and are often one-sided.

The efficacy of narrow removal depends on a website’s position on this sliding scale. Targeted removal of allegedly defamatory materials is usually sufficient to limit the damage to a plaintiff’s reputation on a website where user comments are various and diverse. When a restaurant learns that its Yelp.com page contains potentially defamatory information, a targeted temporary removal of that information before trial suffices because the restaurant usually would not have to worry about the same strand of libelous information popping up elsewhere on the website. The same logic does not apply to websites where user comments converge both topically and ideologically. In Apex, if the court limits the scope of the prior restraint to posts mentioning Apex, it remains likely that a potentially defamatory discourse about Apex would recur among other users of Endh1b.com, who are similarly interested in the H–1B visa and share the same view that the program should be abolished. The combative behavior of the owner of Endh1b.com after receiving Apex’s removal request demonstrates that a narrow removal may escalate, instead of mitigate, the reputational harm to Apex. Thus, given the homogeneity of user comments on Endh1b.com, a prior restraint should still be proper even if it reaches beyond posts directly related to Apex.

Opsahl’s second argument relied on section 230(c)(1) of the federal Communications Decency Act of 1996. This section essentially shields “interactive computer service” providers from liability arising from content published by “another information content provider.” Opsahl claimed that the owner of Endh1b.com cannot be enjoined for allowing anonymous posts about Apex to remain public because they fell under “information provided by another information content provider.” This argument disregarded the fact that, generally speaking, owners of blogs and forum are often among the most active creators of information on their websites. The owner of Endh1b.com became personally involved in potential defamation when he or she referred to Apex as an “Indian bodyshop.” Allowing section 230 to shield the owner of Endh1b.com from an injunction when he or she is also the one that posted some of the allegedly defamatory information would lead to absurd results.

As shown above, a prior restraint against a blog should not be strictly constrained to posts directly relevant to the plaintiff without taking other factors into account. But the problem remains whether a prior restraint ordering the complete shutdown of websites is proper in Apex. In the TechCrunch article, Wadhaw claimed the answer should be yes, citing examples of the racial slurs, profanity, and the open solicitation of hatred and violence that the three websites were riddled with. This reasoning is problematic. Because Apex did not assert any discrimination or hate crime claims in its brief, Wadhaw is essentially advocating that courts should feel free to hijack a defamation claim and turn it into a crusade against discrimination by broadening the scope of prior restraints. This would result in gross abuse of judiciary discretion and disregard Apex’s status as the master of its own complaint.

To conclude, a prior restraint should be able to reach beyond directly relevant materials to the extent that it serves the purpose of curbing immediate reputational harm. But a court should caution against expanding the scope of a prior restraint for values unrelated to the plaintiff’s claims. When determining the proper scope of a prior restraint against a blog, a court should consider: 1) whether the blog deals with a variety of topics, 2) whether the opinions expressed on the blog are diversified, 3) whether the blog owner directly contributed to the allegedly defamatory materials, and 4) whether a narrow removal would escalate instead of mitigate reputational harm. In Apex, the takedown was likely proper because it may have been the only effective way to temporarily stop the numerous anonymous users from spreading the allegedly defamatory information about Apex.

[1] The H–1B visa program authorizes U.S. employers to temporarily employ foreign workers in “specialty occupations.” 8 U.S.C. § 1101(a)(H)(i)(b). A “specialty occupation” is defined as an occupation that requires “theoretical and practical application of a body of specialized knowledge” and the attainment of certain course of study. 8 U.S.C. § 1184(i)(3).

Harry Zhou is a first-year student at Harvard Law School. He is interested in the promotion of Free, Libre and Open Source Software.