Injunction Relief: Must Nonparty Websites Obey Court Orders to Remove User Content?

• Citation: Vol. 7 No. 1
• Publication year: 2011

Washington Journal of Law, Technology and Arts Volume 7, Issue 1 Summer 2011

Injunction Relief: Must Nonparty Websites Obey Court Orders to Remove User Content?

Connor Moran(fn*)

Abstract

Websites are normally immune to suits arising from illegal user-posted content due to 42 USC § 230. Victims of illegal postings must therefore bring suit, if at all, against the original posters. However, when websites refuse to take down illegal content, a suit against an original poster might not provide relief. In the recent case Blockowicz v. Williams, a family won a default judgment against persons posting defamatory content to Ripoff Report. But the plaintiffs could not contact the defendant to enforce the judgment, and thus they sought enforcement of an injunction against Ripoff Report. The court refused because Ripoff Report was not a party to the action. As a result, the top Google hit for the Blockowicz family name remains a defamatory posting. This Article considers how the traditional exceptions to the rule that injunctions do not bind nonparties apply in the context of the relationship between a poster and a website and when, if ever, a nonparty website might be bound by an injunction against a poster. This Article also discusses alternative remedies plaintiffs can seek if they are unable to obtain an injunction against a nonparty website.

Table of Contents

Introduction....................................................................................48

I.Blockowicz v. Williams...........................................................49

II. The General Rule: Injunctions Do Not Bind Nonparties........51

A. Active Concert or Participation.........................................51

B. Legally Identified...............................................................53

III. Beyond Injunctions: The Possibility of Garnishment as a Remedy ...................................................................................54

Conclusion.....................................................................................56

Practice Pointers.............................................................................56

Introduction

The Blockowicz family faced a problem both new and ancient: someone with ill intent wrote negative public statements about them. The person wrote, among other things, that one of the family's daughters was a prostitute. These statements were published in a prominent place, a website entitled Ripoffreport.com (Ripoff Report), making the post the top Google hit for the Blockowicz name. Despite a default judgment against the poster that the communications were defamatory, the Blockowicz family has yet to succeed in having the statements removed from the website.

This result occurred because of 47 U.S.C. § 230(fn1) and the longstanding doctrine that injunctions may not be directed to nonparties to litigation. Section 230 provides, in part, that no website or Internet service provider may be treated as the publisher or speaker of any material provided by a third party for the purpose of any lawsuit.(fn2) This provision insulates Web providers from liability for illegal third-party communications made on their sites. This protection is most frequently associated with defamation claims.(fn3) Victims of online defamation can ordinarily only sue original posters rather than websites that contain defamation.

However, if a post remains in the control of the website operator, an injunction directed to the poster may not provide relief. Under Federal Rule of Civil Procedure 65, injunctions may bind only parties to a suit, persons legally identified with them (such as agents), and persons acting in active concert or participation.(fn4) Section 230 prohibits plaintiffs from naming website operators as parties; such operators cannot be bound by injunctions unless they are legally identified with or in active concert or participation with the original poster.

This Article describes the Blockowicz case, examines the general prohibition against forcing nonparties to comply with injunctions and the traditional exceptions to that prohibition, and considers the possibility that plaintiffs may obtain relief using the legal remedy of garnishment.

I. Blockowicz v. Williams

The Blockowicz v. Williams case involved the website Ripoffreport.com, which allows users to post complaints.(fn5) Ripoff Report's policy is to never take down any complaint.(fn6) When posting materials, persons agree to terms of service including that: "By posting information on ROR, you understand and agree that the material will not be removed even at your request."(fn7) Williams posted to Ripoff Report regarding the Blockowicz family, alleging among other things that one of the family's daughters is a prostitute.(fn8) As of May 2011, this post was the top Google hit for the name "Blockowicz."

In 2009, the Blockowiczs filed a defamation suit against Joseph David Williams and Michelle Ramey.(fn9) The defendants defaulted and the court granted...