The Plaintiffs in Blockowicz v. Ramey were victims of online defamation on social networking and other websites. The Plaintiffs were successful in getting a default judgment against the Defendants and an injunction to remove the defamatory material. Blockowicz v. Ramey, 2009 U.S. Dist. LEXIS 118599 (N.D. Ill. Dec. 21, 2009).
The Plaintiffs’ challenge: Enforcement of the injunction on 3rd parties who hosted the defamatory statements.
All but one 3rd party host provider, Xcentric, assisted the Plaintiffs in removing the defamatory statements. The Plaintiffs brought a motion to enforce the injunction against the 3rd party. The 3rd party in turn challenged the Court’s authority under Federal Rule of Civil Procedure Rule 65 to enforce the injunction. Blockowicz, at *2-3.
Federal Rule of Civil Procedure Rule 65: A Legal Thrill Ride
Federal Rule of Civil Procedure Rule 65(d)(2) states, in relevant part, “an injunction binds not only the parties to the injunction but also nonparties who act with the named party.” Blockowicz, at *3, citing S.E.C. v. Homa, 514 F.3d 661, 674 (7th Cir. 2008).”
Courts do not want situations where a defendant does an end run around an injunction by hiding behind those who have aided them in tortuous conduct. Blockowicz, at *3-4.
And now the big “However”: Courts may not grant a broad injunction that binds those who are independent actors whose rights have not been adjudicated. Blockowicz, at *4.
A Victory without a Victory
A party’s right to sue an internet host for defamatory comments is limited by the Communications Decency Act. Blockowicz, at *5.
The Plaintiffs avoided this legal barrier by originally suing those who made the defamatory comments. However, the Court refused to enforce the injunction against the 3rd party internet host provider. Id.
The Court found the 3rd party did not act in concert or aid in the posting of the defamatory comments. Blockowicz, 6-9. The Plaintiffs forcefully argued that the 3rd party’s Terms of Service effectively made them act in concert with the Defendants. Id.
The Court did not agree. The Court refused to ignore the 3rd party’s Terms of Service prohibiting the publishing of defamatory statements or interpret the host provider’s actions as aiding the Defendants. Blockowicz, at *8-9.
The scope of enforcing injunctions against 3rd parties truly gave the Plaintiffs a victory without a legal recourse. While the Court was highly sympathetic to their situation, the 3rd party could not be ordered to abide by the injunction against the Defendants in this situation. Blockowicz, at *9.
Bow Tie Thoughts
Victims of online defamation might be able to recover against defendants, but getting 3rd party providers to comply with a court order could be the larger battle. One would hope 3rd party providers would want to avoid the negative press that could follow from not complying with judgments for online defamation.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016, the Web 100 from 2017 to 2018, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.