Two weeks ago, in Vazquez v. Buhl, the Appeals Court of Connecticut affirmed dismissal of a defamation claim against CNBC for hyperlinking to an online report by journalist Teri Buhl. The Court held that, although CNBC allegedly “amplified,” “endorsed” and “adopted” the offending report, it was not a “content provider” under the Communications Decency Act (CDA).
The Sex and Money Scandal Rocking Hedge Fund Land
In 2012, reporter John Carney published a blog post on CNBC.com entitled The Sex and Money Scandal Rocking Hedge Fund Land. It concerned a Connecticut man who reported to police that his personal assistant had embezzled over $150,000. The assistant told police she was a “highly paid escort,” and admitted to having sex voluntarily with the man and his fiancée, but apparently insisted that the money she took was to compensate her for more quotidian services rendered.
Carney’s blog post then announced that “veteran financial reporter Teri Buhl, who knows her way around the Connecticut hedge fund beat,” had discovered the identity of the man and the fiancée. Carney continued: “I don’t want to steal Buhl’s thunder, so click on her report for the big reveal.” The link was to a report on Buhl’s website, which is no longer available. The report revealed the couple to be currency trader Mitchell Vazquez and his fiancée Pamela Chiesi, the sister of convicted insider trader Danielle Chiesi. Buhl’s report also made some not-so-nice statements about Vazquez’s financial dealings.
Vazquez filed suit against Buhl and CNBC in Connecticut state court. The complaint alleged that Buhl’s article was defamatory, and that CNBC committed defamation because it “published, distributed, endorsed and promoted” Buhl’s article. CNBC moved to strike (the functional equivalent of a motion to dismiss in Connecticut state court), alleging that it was immune from suit pursuant to the CDA.
The Communications Decency Act
Section 230 of the CDA provides that, for purposes of state laws such as defamation, “no provider  of an interactive computer service shall be treated as the publisher  of any information provided by another information content provider.” A service provider is the party that provides access to some online public space, while the content provider is the party “responsible, in whole or in part, for the creation or development” of the content that fills that space. For example, WordPress hosts the Trademark and Copyright Law Blog but has nothing to do with its content so, in the ordinary course, WordPress would be protected by the CDA if we mess up.
Vazquez advanced two arguments as to why this same logic shouldn’t apply to Buhl and CNBC:
First, Vazquez argued that the report was not “provided by” Buhl to CNBC, because the statutory term “provided by” indicates that something has been directly transmitted from a content provider to a service provider. However, Buhl did not transmit anything to CNBC. Rather, CNBC actively linked to her.
The Court of Appeals disagreed, noting that other courts addressing analogous scenarios have held that the CDA does not just protect those who host content posted by third parties, but also those who “provide access” to third party content, such as by hyperlinking.
“Information Content Provider”
Second, Vazquez argued that CNBC crossed the line from service provider to content provider when it took active steps to locate Buhl’s report, link to it, amplify it by adding a “salacious title” and vouch for Buhl’s credibility as a reporter.
Again, the Court of Appeals disagreed. A party does not become a content provider by “mere augmentation of content,” but by “materially contributing to its alleged unlawfulness,” for example, by specifically encouraging inclusion of the defamatory material. Here, the Court continued, there was no allegation that CNBC “materially contributed, prompted, specifically encouraged, apparently requested or actively solicited” the defamatory statements. Rather, the allegation was that CNBC “amplified, endorsed and adopted” those statements by linking to the report and perhaps thus increasing its readership. This, according to the Court, was not enough to deprive CNBC of CDA protection.
The outcome of the case is not terribly surprising, in that courts have consistently found that a service provider is protected by the CDA up until the point it starts to become the content provider of some identifiable piece of defamatory information (see example here), and merely linking to that information doesn’t count. Still, one is struck by the broad language used by the court to describe this protection. It is not difficult to imagine more difficult cases in which the “endorsement” or “adoption” of defamatory content could stray much closer to the line between service provider and content provider.