A website cannot be compelled to remove defamation posted by another.
The 7th Circuit acknowledged that result may be unfortunate for the people who are defamed. But in the absence of active aiding and abetting the defamer on the part of the website, the court held that Rule 65(d) does not authorize courts to require removal.
David, Mary, and Lisa Blockowicz sued David Williams and Michelle Ramey in federal court for defamation based on comments they posted on various websites including www.ripoffreport.com (ROR).
The district court entered default judgment in their favor, and issued a permanent injunction requiring the defendants to remove the defamatory statements.
The defendants did not comply with the injunction. However, every website except ROR removed the defamatory postings at the Blockowiczs’ request.
ROR is a website on which users post comments about bad business practices. It is operated by Xcentric Ventures, LLC, and is managed by Ed Magedson. The website’s terms of service prohibit users from posting defamatory information.
The Blockowiczs filed a motion, asking the district court to compel Xcentric to removing the postings pursuant to Rule 65(d).
The district court held the Rule did not authorize it to enforce the injunction against Xcentric, and the 7th Circuit affirmed on Dec. 27.
Rule 65(d)(2)(C) provides that an injunction binds, in relevant part, “other persons who are in active concert or participation with anyone described in Rule 65(d)(2)(A) or (B).”
But the court concluded that Xcentric did not aid or abet the defendants in violating the injunction, and thus are not bound by it.
The court held that, in order for an act to constitute aiding and abetting the violation of an injunction, the act must occur after the injunction is granted. However, the only acts that Xcentric committed occurred before the injunction was granted.
The court explained, “This requirement is apparent from Rule 65(d)(2)’s text, which requires that nonparties have ‘actual notice’ of the injunction. A non-party who engages in conduct before an injunction is imposed cannot have ‘actual notice’ of the injunction at the time of their relevant conduct.”
The court further found that permitting pre-injunction conduct to bind a non-party to an injunction would not serve the purpose of the Rule – preventing defendants from rendering injunctions void by carrying out prohibited acts through third parties.
The court rejected the Blockowoiczs’ argument that failure to act can constitute aiding and abetting: “the fact that Xcentric is technologically capable of removing the postings does not render its failure to do so aiding and abetting. Xcentric’s and Magedson’s mere inactivity is simply inadequate to render them aiders and abettors in violating the injunction.”
The court concluded, “With sympathy for the Blockowiczs, we conclude that Rule 65(d)(2)(C) is not the appropriate mechanism for achieving the removal of the defendants’ posts.”
Although the opinion forecloses the use of Rule 65(d)(2)(C) to eliminate defamation on the Internet, the court’s opinion does leave open one possible remedy for persons defamed on a website in other cases – asking the district court to order removal of defamatory content pursuant to its inherent powers.
The Blockowiczs argued that, even if the Rule did not apply, the district court should have invoked its inherent authority to bind Xcentric to the injunction. But the court held this argument was waived, because it was not raised in the district court.
It added that it would not have been an abuse of discretion for the district not to exercise its inherent powers, even if the issue had been raised.
But this does not foreclose the argument that, in other cases, it may be a proper exercise of discretion to order a website to remove defamatory material.
What the Court Held
Issue: Can a website manager be forced to remove defamatory material posted by another?
Holding: No. Rule 65(d)(2)(C), mere inactivity is not aiding and abetting that would subject the website to an injunction.
David Ziemer can be reached at email@example.com.