From time to time, I check to see what is happening—or not happening—with Internet-based defamation lawsuits, making a mental note to watch cases I find of interest. One such case that I have followed as it has progressed is Noriega v. The Huffington Post, which I first noticed in the ABA Journal, with a headline that summed it up nicely: “Lawyer Sues Huff Post, Says He Wasn’t Author and Disagrees with Article Published Under His Name.”
Here is what happened to a young Panamanian attorney, Juan Carlos Noriega, when someone stole his good name and used it to create a phony blog account at The Huffington Post, which posted a bogus article in his name, with which he disagreed. Adding insult to injury, The Huffington Post then refused to take down the bogus article, or even acknowledge the letter from his attorney.
Juan Carlos Noriega discovered that The Huffington Post is a CDA 230, and as such, pretty much immune from the law. If you don’t know about CDA 230s, you probably haven’t had your name stolen and used by someone else on the Internet, or been defamed on the Internet and tried to deal with the problem without filing a lawsuit.
Here’s what happened to Juan Carlos Noriega.
The Facts Prompting The Lawsuit
On August 2, 2012, The Huffington Post published in its blog section the purported article by Juan Carlos Noriega titled “The Primacy of the Rule of Law,” which addressed the prosecution of Dr. Shakeel Afridi, a Pakistani doctor who reportedly ran a sham vaccination program for the CIA as part of the CIA’s efforts to find Osama Bin Laden. In fact, the article was a fraud.
When the real Mr. Noriega—a University of California, Berkeley School of Law-educated founding partner in the law firm of Arias, Abrego, Lopez & Noriega—learned of the bogus article, with its potentially negative impact on his international business law practice, he retained Benjamin Chew, of the Patton Boggs law firm in Washington, DC, to have it removed. On September 13, 2012, Chew sent a letter to The Huffington Post editor Roy Sekoff, re “Urgent Demand for Immediate Retraction.”
Ben Chew’s letter explained that his client was the victim of identity theft, and conveyed the fact that he was not the author of the posted article, a fact that “could have been determined with minimal due diligence.” Chew noted that the “provocative and dangerous nature of the subject matter—involving terrorism, Pakistan, bin Laden and strong criticism of the CIA—should have heightened your publication’s due diligence. Instead you published an article ascribed to someone who did not write it, (begging the question of who did.)” Chew demanded that The Huffington Post “immediately publish a conspicuous retraction and then provide a detailed explanation of how and why this could happen.”
When The Huffington Post did not even bother to acknowledge the letter, not to mention take any action, Noriega filed a $3 million defamation and false light lawsuit on December 14, 2012, in the U.S. District Court for the District of Columbia, claiming that the article was “false and defamatory on its face by imputing serious and egregious statements of beliefs regarding terrorism, Pakistan, bin Laden and severe criticism of the CIA and the United States government” to Noriega.
The Likely Reason That The Huffington Post Ignored Chew’s Letter: CDA Section 230
I have no idea if Roy Sekoff ever saw Ben Chew’s letter (and I doubt it), but someone at The Huffington Post surely did, and apparently decided to ignore it because they are an “Interactive Computer Service Provider” under Section 230 of the Communications Decency Act of 1996 (CDA), so that they could opt to disregard such matters if they chose.
Section 230 of the CDA (CDA 230) was not part of the original Communications Decency Act, which was designed to keep online smut away from kids, but it has been largely overturned under the First Amendment by the Supreme Court. CDA 230 was an amendment to provide immunity from legal liability for providers and users of an “interactive computer service” who publish information provided by others. The Electronic Freedom Foundations calls CDA 230 “the most important law protecting Internet speech.” Others, like legal scholar David S. Ardia, have asked if CDA 230 is a “shield for scoundrels?”
As simply stated in Seran v. America Online, Inc., CDA 230 “creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.” While The Huffington Post is responsible for material it creates, just as publishers in print, radio and television are, that part of their operation that offers an interactive forum for outside parties to post blogs or comments is different and protected by CDA 230. Congress wanted Internet Service Providers treated differently to encourage free speech, with all of its diversity of views, a goal that they certainly have accomplished.
As the above-mentioned empirical study by David Ardia of cases resolved under CDA 230 shows, about 60 percent of the motions to dismiss the defamation complaint at issue prevail. So CDA 230 does not always work. Moreover, the Noriega complaint alleged that The Huffington Post had “contributed to the editing” of the bogus article, raising the question whether this was third party content or content created by The Huffington Post, in which case it would not be entitled to CDA 230 protection.
The Huffington Post Response
The Huffington Post responded to Noriega’s lawsuit with a team of attorneys from Jenner & Block’s Washington, DC office, Katherine Amy Fallow, Maya D. Song and Michael Brian DeSanctis, who filed a motion to dismiss the complaint on January 30, 2013. It was an aggressive response, suggesting that this matter was now being treated seriously, and was not so easily ignored.
The thrust of Jenner & Block’s motion to dismiss, not surprisingly, relied on CDA 230. Based on the admission in Noriega’s complaint that The Huffington Post is an interactive computer service provider, and therefore entitled to immunity for this bogus posting in their blog section, they sought to dismiss the complaint. But the motion to dismiss also had to address the question whether the editorial work by The Huffington Post had resulted in its losing CDA 230 protection. They argued that to be a content provider required something more than “merely editing” and “selecting material for publication.” The motion also argued that on its face, the bogus article was not defamatory and therefore it failed to state a claim upon which relief could be granted, which would be grounds to dismiss the lawsuit.
After I read the motion to dismiss, it was anything but clear to me that The Huffington Post was going to get this case tossed out of court. So I awaited the response from Noriega’s lawyer, since this might not be another slam-dunk CDA 230 dismissal situation. But then the case fell off the radar of the reporters who had been following it. When recently browsing, I decided to see what had become of the case. To find the answer, I visited Public Access to Court Electronic Records (PACER).
The End Of The Story
According to the docket of the U.S. District Court for the District of Columbia—and more specifically the docket of U.S. District Court Judge Ellen Segal Huvelle, to whom the case had been assigned—the motion to dismiss was filed by The Huffington Post on January 30, 2013. On February 7, 2013, Chew requested and was granted an extension to file his reply on March 12, 2013, an extension agreed upon by all parties. On March 6, 2013, all parties again asked for and were given another extension for the Noriega reply until March 29, 2013, which the Judge granted the next day. Clearly, given the multiple delays, the parties were talking about how to resolve this dispute out of court.
On March 29, 2013, Chew filed a notice of dismissal, and since The Huffington Post had only filed a motion to dismiss, but not a formal answer, under the Federal Rules of Civil Procedure, Noriega could dismiss his lawsuit without a court order. This meant that no one had won nor lost; rather all parties were in a position as if no lawsuit had been filed. There was no need (or basis) for the court to rule on the issues raised by The Huffington Post motion to dismiss, so there was no resolution of the CDA 230 issues. Indeed, Noriega could file another lawsuit in the future, if his filing still fell within the one-year statute of limitation in most states for such actions.
So what exactly happened here? That did not become clear until I searched to see if the bogus Noriega article—“The Primacy of the Rule of Law”—was still posted on The Huffington Post. Nope, it was not there. Rather, there is an Editor’s Note, as follows: “A post titled ‘The Primacy of the Rule of Law’ originally appeared on The Blog on August 2, 2012 under the name Juan Carlos Noriega. The article in fact was authored by M.K. Awan.”
In the end, Juan Carlos Noriega got most of what he wanted. I suspect ignoring Ben Chew’s letter was somewhat costly for The Huffington Post but likely was considered part of the cost of doing business. What might have been an interesting CDA 230 case disappeared.
But who in hell is M.K. Awan or is this really just another stolen identity? Had the case gone forward we might know the answer, but I doubt that will happen now.