Computerized ID Theft: Posting on Web Sites: Landry-Bell

Get information and post information on theft of identity issues.
David A. Szwak

Computerized ID Theft: Posting on Web Sites: Landry-Bell

Postby David A. Szwak » Mon Oct 17, 2005 12:44 pm

*************COMMUNICATIONS DECENCY ACT OF 1996************

===========
UNITED STATES DISTRICT COURT
IN AND FOR THE WESTERN DISTRICT OF LOUISIANA
Shreveport Division

SHELLY LANDRY-BELL,

versus Civil Action No.
CV05-1526-S
VARIOUS INC., ET AL, JURY DEMANDED

Brief Excerpt:

Section 230(f)(2) defines the term "Interactive computer service" as "any information
service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions." 47 U.S.C. 230(f)(2). Accordingly, §230 creates immunity for any cause of action that would make Interactive computer services liable for information originating from a third-party. Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir.1997). The statute goes on to define the term "Information content provider" as "any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service." 47 U.S.C. 230(f)(3). The actions of “Information content providers” are not immune from liability under §230. Optinrealbig.com, LLC v. Ironport Sys., Inc., 323 F.Supp.2d 1037, 1045 (U.S.D.C. N.D. Cal.2004).

Regardless of whether defendant qualifies as an “Interactive computer service,” defendant has exposure to liability as an “Information content provider.” In this case, defendant jointly created and developed the false and defamatory questionnaire, information, and photos, for posting and wide spread dissemination.

In the only known case directly on point, but curiously absent from briefing by defendant, Carafano v. Metrosplash.com Inc., 207 F.Supp.2d 1055, 1066-1067 [U.S.D.C. C.D. Cal. 2002], affirmed, 339 F.3d 1119 [9th Cir. (Cal.) 2003], a well known actress sued a provider of an interactive internet service, and related parties, for invasion of privacy, misappropriation of right of publicity, defamation and negligence, based on a third party's submission of a false profile of the actress to the web site. As in Landry-Bell’s case, the information was sexual in nature and not posted by the victim of the posting. Following removal of the case to federal court, the Carafano defendants filed a motion for summary judgment. Judge Dick Tevrizian held that the provider qualified as an "interactive computer service" provider, for purposes of immunity under the Communications Decency Act of 1996 (CDA), however the provider of the service, allowing users within a particular "community" to post profiles and communicate with each other, was also an "information content provider," partly responsible for the creation or development of the false profile created by responses to its questionnaire, and thus was not entitled to immunity.

A provider of an interactive computer service allowing users within a particular "community" to post profile and information and then communicate with each other was an "information content provider," partly responsible for the creation or development of a false profile of an actress created by a third party, and thus was not entitled to immunity under the Communications Decency Act of 1996 (CDA), where the provider contributed to the content of the profiles by asking specific questions with multiple choice answers and specific essay questions.

The Carafano court held stated: “Section 230 immunity applies only when the content is not provided by the service entity: 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©)(1). An information content provider is: [A]ny person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service. Id. at §230(f)(3). Plaintiff argues that Matchmaker is such an "information content provider." Specifically, she asserts that the questionnaire used to create the Profile was carefully fashioned specifically for the "Los Angeles Metro Community" to include what Defendants determined to be appropriate questions and suitable responses--many of which were sexually charged--for that community. This Court agrees that Matchmaker qualifies an information content provider. The users of the Matchmaker website do not simply post whatever information they desire. Rather, a profile for each user is created from the questions asked by Matchmaker and the answers provided. These questions consist of multiple choice questions and essay questions. By conducting its service, Matchmaker does not just provide a site for people to post whatever information they choose. Rather, it provides 62 multiple-choice questions and a series of essay questions tailored for each Matchmaker community. Thus, Matchmaker is an "entity that is responsible, ... in part, for the creation or development of information provided through the Internet or any other interactive computer service." Defendants argue that the Matchmaker service functions just like a bulletin board or any other type of on-line forum for speech. However, Defendants' argument ignores an important difference between Matchmaker and a bulletin board. Specifically, as stated above, Matchmaker contributes to the content of the profiles by asking specific questions with multiple choice answers and specific essay questions. It is responsible, in part, "for the creation or development of information" contained in the profiles. Indeed, it appears that a member cannot post any other additional information even if he/she desires. By contrast, a bulletin board and the other types of on-line forums designated by Defendants merely provide the forums for the speech and do not contribute to the creation or development of information provided by the users of these services. This Court's determination would be different if Matchmaker simply acts as a conduit of the information, but it does not. Matchmaker takes an active role in developing the information that gets posted. [emphasis added.].”

In Carafano, defendant is more than a “distributor.” In rejecting defendant’s contentions, Judge Tevrizian stated: “Defendants further argue that because Matchmaker acted as a distributor and had no reason to know that the profile was false, they cannot be held liable for defamation. While this Court notes that it does not need to reach this further argument based on its determination, above, this Court briefly addresses Defendants' argument. A distributor of defamatory matter is blameless if the distributor has had no notice of its possible falsity. See Restatement (Second) Torts §581 ("one who only delivers or transmits defamatory matter published by a third person is subject to liability if, but only if, he knows or has reason to know of its defamatory character"). "This rule protects libraries and vendors of books, magazines and newspapers." Osmond v. EWAP, Inc., 153 Cal.App.3d 842, 853, 200 Cal.Rptr. 674 (1984). The rationale is that one who merely plays a secondary role in disseminating information published by another may avoid liability by showing there was no reason to believe it to be a libel. See id. at 852, 200 Cal.Rptr. 674. This Court agrees with Plaintiff and concludes that Defendants are not merely distributors of the Profile. Defendants attempt to hold Matchmaker out as an "electronic library" and assert that just as a traditional library cannot be held liable for defamatory matter contained in a book that it makes available to the public, Matchmaker is not liable for the content of profiles posted by its members. However, this statement is contrary to the evidence and to this Court's discussion, above, with respect to immunity under the CDA. Defendants created and tailored membership questionnaires that served as the basis for the Profile. Every answer made in response to the questionnaires becomes part of the Profile. As such, Matchmaker is more than just a passive conduit of information. This is what distinguishes this case from the case relied on by Defendants, Cubby, Inc. v. CompuServe Inc., 776 F.Supp. 135 (S.D.N.Y.1991), wherein the court found that Compuserve, which provided its subscribers with access to an electronic library of new publications put together by an independent third party and loaded onto the company's computer banks, was a mere "distributor" of information and could not be held liable for defamatory statements made in the news publications. Unlike here, the evidence in Cubby was that Compuserve had no editorial control over the publication at issue. See id. at 140 ("CompuServe has no more editorial control over such a publication than does a public library, book store, or newsstand, and it would be no more feasible for CompuServe to examine every publication it carries for potentially defamatory statements than it would be for any other distributor to do so."). As such, Defendants cannot avail themselves of the limited distributor's liability. [emphasis added.].” Id. at 1073-1074.
Last edited by David A. Szwak on Mon Oct 17, 2005 12:53 pm, edited 1 time in total.

David A. Szwak

The Facts in Landry-Bell

Postby David A. Szwak » Mon Oct 17, 2005 12:49 pm

Facts

“This is a case involving a cruel and sadistic identity theft.” Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 [9th Cir. (Cal.) 2003]. The evidence in this case will ultimately show that Defendant is not afforded immunity under 47 U.S.C. §230[c], which provides specified immunity for interactive computer services that publish information received from third party information content providers, because Defendant acted as an information content provider when it created and developed the substance of the defamatory postings on its various web sites complained about by plaintiff. Plaintiff asserts that Defendant's conduct is not protected by the limited immunity granted in 47 U.S.C. 230, the “Communications Decency Act.”

In addition to posting lewd and sexually explicit profiles on its many “adult” sites, defendant has actively blasted out the profile contents to web search engines and search spider programs which facilitate the mass advertisement of the defamatory postings. See attached Exh. A and attachments. Profiles and search engine listings depicting plaintiff’s personal name, information and photo were listed in search results made available solely due to Various, Inc.’s efforts to re-publish and mass advertise the profile far beyond its site and system. Searches on www.google.com displayed numerous hits showing plaintiff’s information and picture with search result headings such as “Women Seeking Groups in Louisiana,” “Women Seeking TS/TV/TG in Louisiana,” “Women Seeking Men in Louisiana,” “Women Seeking Men Near Shreveport,” “Women Seeking Couples [2 Men] in Louisiana,” etc. The profile and search results list plaintiff as “Horny Shelly here!” and “Anyone Wanting to Play With Me?” and “Ask Me For a Photo.” That information was solely blasted out into the web search engines and spider programs by Various, Inc. Those remarks were not content from the co-defendant. The added descriptors describing plaintiff as “horny” and seeking all forms of sexual conduct came solely from Various, Inc., and was derived by Various, Inc., from the initial remarks made by its co-defendant though the co-defendant did not use the same words in the profile data he submitted as shown in the profile in Various, Inc.’s actual site profile under plaintiff’s identity and bearing plaintiff’s photos [clothed; copied from www.pbrnow.com; her husband is a nationally recognized, professional bull rider, Rob Bell] and interspersed with cropped naked pictures of other women so as to suggest that they were naked pictures of plaintiff.

Worse yet, defendant, Various, Inc., took the illicit profile and listed plaintiff’s complete name, with a title listed “Hey! My name is Shelly Elizabeth Hand, what’s yours?” and displayed that profile as a special profile to further attract attention to it. Various, Inc., has listed her “handle” as “ShellyHand7897" and “ShellyHand4U” in their postings about her.

Defendant Various, Inc., also organizes the profiles by geographic area for display and re-publication to persons in those areas. Defendant also identifies the person as “Living In” a specified location. Defendant further identified plaintiff as a “Standard Member,” which is false. Defendant provides an elaborate search engine to categorize and publish profiles. Defendant actively provides a mechanism to input information and then defendant uses that information to publish profiles which defendant selects and chooses to publish to the searcher.

Just as in the case involving MatchMaker.com, Various, Inc., provides the profile initiator with a laundry listing of sexual desire listed in language provided by Various, Inc., such as “Men,” “Groups,” “Women,” “Couples [two men],” “Couples [two women],” “Erotic Chat or Email,” “1-on-1 Sex,” “Bondage & Discipline,” “Exhibitionism/Voyeurism,” “Sadism,” “Group Sex (3 or more!),” etc. Various, Inc., alone selected the language. Thereafter, Various, Inc., in the profile creation and development process asks a long list of questions to pinpoint specific information for inclusion in its profile about plaintiff. Various, Inc., also does internal computerized “testing,” after which it solely displayed a “description” and scores, such as “purity score” and “compatibility score.” Various, Inc., asks questions including a “bra size,” “sexual orientation,” and others designed to suggest lewd desires. On yet another page of the same profile defendant, Various, Inc., created about plaintiff, Various asked questions including: “Tell us about your most favorite sexual fantasy. Don’t hold back!” and “What role playing scenes do you fantasize about?” and “What location do you fantasize about for a sexual encounter?” and “Using the location you chose as the best fantasy setting for a sexual encounter, tell us about that encounter. Fact or fantasy?”

The next section of the profile asks numerous questions about “Sexual Accessories.” Then another section asks numerous questions about “Sexual Interests.” Then another section asks numerous questions about “Sexual Activities.” Then another section asks numerous questions about “Physical Stuff.” Then another section asks numerous questions about “Dreams & Goals.” The sections of the profile go on and on. Each of these sections contain menus of responses, just as in MatchMaker.com, discussed infra.

Various, Inc., set up subsystems, such as “HotLists,” “Winks,” “Private Photo Galleries” [apparently for even more lewd photos than in the profile], and other sub-network methods to link people. Various, Inc., posted pictures of men and women on the purported profile of plaintiff and list the persons as plaintiff’s “Friends.” Some of the photos show people in various states of undress.

David A. Szwak

Grace v. eBay

Postby David A. Szwak » Mon Oct 17, 2005 12:51 pm

The California Appellate Court in Grace v. eBay Inc., 16 Cal.Rptr.3d 192 [Cal. App. 2 Dist. 2004], which authored a very thorough and scholarly examination of Section 230 of the CDA, held that “[W]e conclude that section 230 provides no immunity against liability as a distributor. (See Doe v. America Online, Inc., (Fla.2001) 783 So.2d 1010, 1018 (dis. opn. of Lewis, J.).) We decline to follow Zeran v. America Online, Inc. (4th Cir.1997) 129 F.3d 327 and its progeny, including Gentry v. eBay, Inc., supra, 99 Cal.App.4th at page 833, footnote 10, 121 Cal.Rptr.2d 703, and Kathleen R. v. City of Livermore (2001) 87 Cal.App.4th 684, 695, footnote 3, 104 Cal.Rptr.2d 772. For the reasons we have stated, we disagree with the Zeran court's conclusion that because the term "publication" can encompass any repetition of a defamatory statement, use of the term "publisher" in section 230©)(1) indicates a clear legislative intention to abrogate common law distributor liability. Zeran, supra, 129 F.3d at pp. 332-334.) In light of the well-established common law distinction between liability as a primary publisher and liability as a distributor and Congress's expressed intention to overrule an opinion that held the operator of a computer bulletin board liable as a primary publisher rather than a distributor Stratton Oakmont, supra, 1995 WestLaw 323710), we cannot conclude that use of the term "publisher" in section 230[c][1] discloses a clear legislative intention to abrogate distributor liability. We also disagree with the Zeran court's conclusion that for providers and users of interactive computer services to be subject to distributor liability would defeat the purposes of the statute and therefore could not be what Congress intended. Zeran v. America Online, Inc., supra, 129 F.3d at pp. 333-334.) The Zeran court opined that the threat of distributor liability would encourage providers and users to remove potentially offensive material upon notice that the material is potentially offensive rather than risk liability for failure to do so. (Id. at p. 333.) The Zeran court opined further that a provider or user who undertakes efforts to block and filter objectionable material is more likely to know or have reason to know of potentially defamatory material and therefore more likely to be held liable as a distributor, so the threat of distributor liability would discourage undertaking those efforts. Ibid.) The broad immunity provided under Zeran, however, would eliminate potential liability for providers and users even if they made no effort to control objectionable content, and therefore would neither promote the development of technologies to accomplish that task nor remove disincentives to that development as Congress intended (47 U.S.C. §230(b)). Rather, the total elimination of distributor liability under Zeran would eliminate a potential incentive to the development of those technologies, that incentive being the threat of distributor liability. (See Note, Immunizing Internet Service Providers from Third-Party Internet Defamation Claims: How Far Should Courts Go? (2002) 55 Vand. L.Rev. 647, 683-685; Freiwald, Comparative Institutional Analysis in Cyberspace: the Case of Intermediary Liability for Defamation (2001) 14 Harv. J.L. & Tech. 569, 616-623.) We conclude that Congress reasonably could have concluded that the threat of distributor liability together with the immunity provided for efforts to restrict access to objectionable material (47 U.S.C. §230©)(2)) would encourage the development and application of technologies to block and filter access to objectionable material, consistent with the expressed legislative purposes.”

David A. Szwak

MCW v. BadBusinessBureau.com

Postby David A. Szwak » Mon Oct 17, 2005 12:52 pm

In the Northern District of Texas in MCW, Inc. v. Badbusinessbureau.com, 2004 WestLaw 833595 (U.S.D.C. N.D. Tex. April 19, 2004), Judge Joe Fish held that the defendants operated a web site that served in part as a consumer complaint forum. Not only did the defendants post consumer complaints, they organized them geographically by company and under various other headings including "Con Artists" and "Corrupt Companies." Id. at *9 fn. 10. Moreover, the defendants contributed to the content by instructing a consumer to take photos to include in his complaint that defendants then posted. Id. at *10. Thus, the defendants did not merely exercise the traditional rights of a publisher, they contributed to and shaped the content. [[Judge Fish specifically noted that “Section 230(c) immunity is not so broad as to extend to an interactive computer service that goes beyond the traditional publisher's role and takes an active role in creating or developing the content at issue. [emphasis added.].”]] Accordingly, they were not immune from liability. Id. This is akin to defendant’s [Various, Inc.] since Various likewise organizes its crude profiles and solicits pictures to be uploaded for inclusion in the profile.

David A. Szwak

Roskowski v. Corvallis Police Officers' Assn.

Postby David A. Szwak » Mon Oct 17, 2005 12:55 pm

In Roskowski v. Corvallis Police Officers' Assn., Not Reported in F.Supp.2d, 2005 WestLaw 555398 [U.S.D.C. Ore. 2005], the court denied plaintiffs’ claims because the ISP merely posted raw content supplied by talk radio listeners that emailed in comments. The Court noted that: “The next question is whether the information was provided by another "information content provider." To qualify for protection under the Act, the interactive computer service must be merely a vehicle for others to post or present their ideas and can not control the information provided in any way. Carafano, supra, 207 F.Supp.2d at 1066-67 (matchmaking service that required users to answer a series of multiple choice and essay questions was responsible, in part, for the information provided through the internet and did not qualify for protection under the Act.) The information complained about is the anonymous e-mails critical of Plaintiff's performance as chief of police that were made available through the website. Defendants claim that each of these e-mails was posted directly to the website by the anonymous author and that Defendants had no control over who posted or what was posted on the website. Plaintiff has offered no evidence to the contrary. All of the e-mails presented to the court were addressed to the mayor, members of the Corvallis city council and/or radio talk show host Lars Larson and were written by individuals under fictitious names. There is no evidence that the e-mails were forwarded to Defendants prior to being posted to the website or that Defendants had any control over the information contained in the e-mails that were posted on the website. The information complained about by Plaintiff was provided solely by an information content provider other than Defendants. [emphasis added.].”

David A. Szwak

Postby David A. Szwak » Tue Jan 17, 2006 10:53 pm

Slip Copy, 2005 WL 3640448 (W.D.La.)

United States District Court,
W.D. Louisiana.
Shelly LANDRY-BELL,
v.
VARIOUS, INC. et al.
No. Civ.A. 05-1526.
Dec. 27, 2005.

REPORT AND RECOMMENDATION

HORNSBY, Magistrate J.
Introduction
*1 Plaintiff alleges that her ex-boyfriend, Zach Wilhelm, posted false, defamatory and sexually obscene information about Plaintiff on web sites operated by Various, Inc. Wilhelm has not been served with this lawsuit because he has not yet been located by Plaintiff. Before the court is a Motion to Dismiss (Doc. 4) filed by Various. Various argues that it is immune from liability pursuant to the Communications Decency Act, 47 U.S.C. § 230, which protects providers of interactive computer services from liability for content posted by third parties. For the reasons that follow, it is recommended that the motion be granted and that all claims against Various be dismissed.
Plaintiff's Allegations
The allegations of Plaintiff's Complaint, which are taken as true for the purposes of the pending motion to dismiss, establish that she and Wilhelm had a dating relationship; that Plaintiff terminated that relationship; and that Wilhelm harassed Plaintiff for some time thereafter. After the breakup, Plaintiff received a telephone call from a male asking her about an adult content post regarding Plaintiff on one of Various' web sites, www.adultfriendfinder.com. Plaintiff's subsequent investigation revealed that extensive posts containing false and sexually obscene material had been posted about Plaintiff on numerous web sites operated by Various. The posts contained Plaintiff's picture (clothed) but suggested that Plaintiff would engage in lewd and obscene acts of perversion. Other posts used Plaintiff's name and showed cropped pictures of an unknown (naked) woman, together with text suggesting that Plaintiff was seeking sexual encounters with men and women.
Because Wilhelm has historically harassed Plaintiff, Plaintiff believes that he is involved in the illicit postings. Plaintiff contacted Various to inquire how her picture and name appeared in its web sites, but Various refused to provide any information about the posts.
Plaintiff claims that Various is liable to her as a publisher of obscene material. She also claims that Various maintains editorial control and the right to edit or remove any postings made to its sites. She further claims that Various maintains custody and garde over its computerized web sites and is, therefore, strictly liable for the content of the sites. Plaintiff seeks damages and other relief claiming invasion of privacy, defamation and intentional infliction of emotional distress. Plaintiff also seeks an order directing Various to remove from its websites all text and photographs concerning Plaintiff.
The Motion to Dismiss
Various argues it is immune from liability pursuant to the Communications Decency Act ("CDA"), 47 U.S.C. § 230. The CDA provides that "[n]o 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." § 230(c)(1). The term "interactive computer service" is defined as "any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions." § 230(f)(2). The term "information content provider" is defined as "any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service." § 230(f)(3). In view of the public policies underlying the CDA, reviewing courts have taken a relatively expansive definition of "interactive computer service," but a relatively restrictive definition of "information content provider." Carafano v. Metrosplash.com, 339 F.3d 1119, 1123 (9th Cir.2003). See also Barnes v. Yahoo!, Inc., 2005 WL 3005602 (D.Or.2005); Blumenthal v. Drudge, 992 F.Supp. 44 (D.D .C.1998)
*2 Under this statutory scheme, Congress has immunized interactive computer services from any cause of action that would make them liable for publishing information provided by a third-party user of that service. Carafano, 339 F.3d at 1122; Zeran v. American Online, 129 F.3d 327, 330-331 (4th Cir.1997), cert. denied, 524 U.S. 937 (1998). The distinction between merely publishing information provided by a third-party as an interactive computer service and actually creating or developing any of the information posted as an information content provider is critical. Claims against interactive computer services are barred if they seek to hold the party liable for its exercise of a publisher's traditional editorial functions--such as deciding whether to publish, withdraw, postpone, or alter content. Zeran, 129 F.3d at 330. Therefore, the right to edit a posting and the act of editing do not prohibit an interactive computer service from falling under the CDA's protective umbrella of immunity. Id. at 330-331. So long as a third party provides the essential published content, the interactive service provider receives full immunity regardless of the specific editing or selection process. Carafano, 339 F.3d at 1124.
The allegations of Plaintiff's Complaint establish that Various is entitled to immunity under Section 230(c). Plaintiff specifically alleges that Various operates the websites in question. Complaint, ¶¶ 2[a], 23-24, 26 and 27. Courts have generally found that web hosts are considered interactive computer services. Carafano v. Metrosplash.com, 207 F.Supp.2d 1055, 1065-66 (C.D.Cal.2002); Gentry v. eBay, 99 Cal.App.4th 816, 831 (2002); Schneider v. Amazon.com, 108 Wash.App. 454 (2001). Based on the allegations of the Complaint, the court finds that Various is an interactive computer service. Thus, Various is entitled to immunity unless it also acted as an information content provider with regard to the false and sexually obscene information posted regarding Plaintiff.
Again, the allegations of Plaintiff's own Complaint establish that Wilhelm-- not Various--provided the offensive content. Complaint, ¶¶ 14, 17-20. However, Plaintiff argues in her brief that Various also acted as an information content provider by "blast[ing] out the profile contents to web search engines"; adding "descriptors," such as "horny," to the content provided by Wilhelm; displaying titles to the listings to attract attention to them; organizing the profiles by geographic area; providing a search engine to categorize and publish profiles; providing a mechanism to input information; asking questions during the input process to create and develop profiles; and performing internal computer "testing" to determine purity and compatibility scores. Plaintiff's Opposition, pp. 2-4. [FN1] None of these allegations is in the Complaint, and the combination of them, even if true, does not transform Various into an information content provider.

FN1. Attached to Plaintiff's Opposition Brief are an Affidavit of Denise Tolber, an employee of Plaintiff's counsel's firm, and many pages of internet materials purporting to be internet research showing the republication of Plaintiff's information caused by Various' website posts. The court has not relied upon the affidavit or any of the information attached thereto; therefore, it is not necessary to convert the motion to dismiss to a motion for summary judgment. Davis v. Bayless, 70 F.3d 367, 372 n. 3 (5th Cir.1995). Given the recommendation herein that Plaintiff's
suit be dismissed pursuant to Rule 12(b)(6) based on the allegations of the Complaint, the Evidentiary Objections and Request to Strike (Doc. 11) filed by Various should be denied as moot.

*3 In Carafano, the Ninth Circuit rejected similar arguments and found that the website's role in eliciting the information at issue did not deprive the website operator of immunity under the CDA. The underlying misinformation came from a third party, not the operator of the web site. The allegations of the Complaint show the same is true here. Wilhelm, not Various, is the alleged provider of the essential content. Various simply provided the computer services that allegedly were used by Wilhelm to embarrass, harass and defame Plaintiff. Therefore, despite the "serious and utterly deplorable consequences that occurred in this case" [FN2] Various is entitled to immunity under the Section 230(c) of the CDA.

FN2. Carafano, 339 F.3d at 1125.

Accordingly;
IT IS RECOMMENDED that the Motion to Dismiss (Doc. 4) be granted and that all claims against Various, Inc. be dismissed with prejudice. The Evidentiary Objections and Request to Strike (Doc. 11) filed by Various should be denied as moot.

Objections
Under the provisions of 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b), parties aggrieved by this recommendation have ten (10) business days from service of this report and recommendation to file specific, written objections with the Clerk of Court, unless an extension of time is granted under Fed.R.Civ.P. 6(b). A party may respond to another party's objections within ten (10) days after being served with a copy thereof. Counsel are directed to furnish a courtesy copy of any objections or responses to the District Judge at the time of filing.
A party's failure to file written objections to the proposed findings, conclusions and recommendation set forth above, within 10 days after being served with a copy, shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. See Douglass v. U.S.A.A., 79 F.3d 1415 (5th Cir.1996) (en banc).

Western District of Louisiana
Notice of Electronic Filing
The following transaction was received from Brown, A entered on 12/28/2005 at 10:06 AM CST and filed on 12/27/2005

Case Name: Landry--Bell v. Various Inc et al
Case Number: 5:05--cv--1526
Filer:
Document Number: 17
Docket Text:

REPORT AND RECOMMENDATIONS re [4] MOTION to Dismiss Pursuant to FRCP 12(b)(6) filed by Various Inc. IT IS RECOMMENDED that the Motion to Dismiss be granted and that all claims against Various, Inc be dismissed with prejudice. The Evidentiary Objections and Request to Strike (Doc. 11) filed by Various should be denied as moot. Objections to RRdue by 1/17/2006. Signed by Judge Mark L. Hornsby on 12/27/05. (crt,Brown, A)
The following document(s) are associated with this transaction:
5:05--cv--1526 Notice will be electronically mailed to:
Bennett L Politz blp@blpld.com, info@blpld.com
Ira P Rothken ira@techfirm.org, jared@techfirm.org
*4 5:05--cv--1526 Notice will be delivered by other means to:
David A Szwak
Bodenheimer Jones Szwak
416 Travis St Ste 240
Shreveport, LA 71101
W.D.La.,2005.
Landry-Bell v. Various, Inc.
Slip Copy, 2005 WL 3640448 (W.D.La.)

David A. Szwak

Postby David A. Szwak » Sun Feb 12, 2006 6:53 pm

Slip Copy, 2006 WL 273599 (W.D.La.)

United States District Court,
W.D. Louisiana.
Shelly LANDRY-BELL
v.
VARIOUS, INC. and Zach Wilhelm
No. Civ.A. 05-1526.
Feb. 2, 2006.

MEMORANDUM ORDER

STAGG, J.
Before the court is a motion to dismiss filed by defendant, Various, Inc. ("Various"). See Record Document 4. Plaintiff, Shelly Landry-Bell, filed an opposition to the motion and Various filed a reply. Pursuant to his powers under Federal Rule of Civil Procedure 72(b) and Uniform Louisiana Local Rule 72.1M & W, United States Magistrate Judge Mark L. Hornsby entered a Report and Recommendation on December 27, 2005, recommending to this court that the motion to dismiss be granted and that all claims against Various be dismissed with prejudice. However, having thoroughly reviewed the record and the slim jurisprudential resources, including the written objections and response filed, this court does not concur with the Magistrate Judge's recommendation.
Under Rule 72(b) and Uniform Louisiana Local Rule 74.1W, a district court conducts a de novo review of a magistrate judge's recommended ruling on a dispositive matter. The district court may accept, reject, or modify the magistrate judge's ruling or remit the matter to the magistrate judge with instructions.
A complaint should survive scrutiny under Federal Rule of Civil Procedure 12(b)(6) unless it "appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief." Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957) (emphasis added). For the purposes of this motion, the plaintiff's factual allegations must be taken as true and construed in a light most favorable to her. See Green v. State Bar of Tex., 27 F.3d 1083 (5th Cir.1994); Rathborne v. Rathborne, 683 F.2d 914, 917 n. 8 (5th Cir.1982). It is not required that the complaint outline all of the elements of each claim to survive a motion to dismiss under Rule 12(b)(6). It is sufficient if inferences may be drawn that these elements exist. See Walker v. South Cent. Bell, 904 F.2d 275 (5th Cir.1990). Although the complaint is scant in details and allegations that would result in liability for Various under the Communications Decency Act, 47 U.S.C. § 230, the allegations are sufficient, because of our notice pleading regime, to suffice under Rule 12(b)(6). See Gen. Elec. Capital Corp. v. Posey, 415 F.3d 391 (5th Cir.2005). Believing that greater factual development as to the actions of Various is necessary, this court rejects the Report and Recommendation. Accordingly;
IT IS ORDERED that the motion to dismiss filed by Various (Record Document 4) be and is hereby DENIED.
THUS DONE AND SIGNED at Shreveport, Louisiana, this 1st day of February, 2006.
W.D.La.,2006.
Landry-Bell v. Various, Inc.
Slip Copy, 2006 WL 273599 (W.D.La.)


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