Friday, September 01, 2017

Of bloggers, 47 USC 230(c)(2), and failure to file briefs

Eric Goldman's post Blogger Isn’t Liable for Anonymous Comments–Griffith v. Wall discussed 47 USC 230(c)(2).

In the case before the Court of Appeals, Merlene Wall is the appellee (a public figure bringing a defamation case against a blogger), and Griffith is the blogger who failed to file a brief before the LAMAR COUNTY CIRCUIT COURT (and lost and has appealed to Court of Appeals, where he wins) . Thus, of interest in the case [ 2017 Miss. App. LEXIS 497 ] is the following:

Whenever the appellee has failed to file a brief, a reviewing court is presented with two options: "The first 'is to take the appellee['s] failure to file a brief as a confession of error and reverse.'" McGrew v. McGrew, 184 So. 3d 302, 306 (¶10) (Miss. Ct. App. 2015) (quoting Miller v. Pannell, 815 So. 2d 1117, 1119 (¶7) (Miss. 2002)). "This should be done when the record is complicated or voluminous, and the appellant has presented an apparent case of error." Id. The second is to disregard the appellee's failure to file a brief and affirm the [judgment]." Id. "This option is reserved for situations where there is a sound and unmistakable basis upon which the judgment may be safely affirmed." Id. (internal quotations omitted).

After reviewing the record, we find that the circuit court erred in taking Griffith's failure to file a brief as a confession of error. First, we find that the record on appeal is neither complicated nor voluminous. And even if it were, we find that Wall—the appellant at the circuit court level—failed to present an apparent case of error. In fact, the record shows that in her brief to the circuit court, Wall relied solely on a federal statute in an attempt to somehow tie the anonymous comments made on Griffith's blog to Griffith himself. The federal statute Wall relies on—titled "[p]rotection for private blocking and screening of offensive material"—states in part:

No provider or user of an interactive computer service shall [*6] be held liable on account of . . . any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected . . . .
47 U.S.C. § 230(c)(2)(A).


Wall contends that this statute placed an obligation on Griffith to remove offending material published—by anonymous posters—on his blog. A quick glance at the statute's text suggests otherwise. For one thing, HN2Go to this Headnote in the case.section 230(c)(1) explicitly protects a user of an interactive computer service from being "treated as the publisher or speaker of any information provided by another information content provider."3 Indeed, nowhere in the text of either section 230(c)(1) or (c)(2)(A) does the statute place any obligation on a provider or a user to screen offensive material. What is more, the title of the statute clearly previews a statutory protection, not a mandate. By its very terms, the title denotes protection for private blocking and screening of offensive materials. One may chose to block or screen offensive material; he, however, is under no obligation to do so.

The outcome was that Wall, as a public figure, lost:

In her brief to the circuit court, and even before us, Wall's only claim of error was based on the control of the anonymous comments. Wall did not, for example, claim that the county court erred in finding that she was a public figure, that it erred in determining that she failed to prove that Griffith's post contained false statements of fact, or that it erred in finding that she failed to prove actual malice. Indeed, Wall's only hope was to attempt to [*9] use an inapplicable federal statute as a vehicle to attach ownership of these anonymous comments to Griffith. The county court found that there was insufficient proof in the record to find that Griffith had control over the posting of anonymous comments in his blog—and was thus not responsible for their content. Wall's use of the federal statute does not change that conclusion. With all this in mind, we find that the circuit court could have safely affirmed the judgment of the county court.

In conclusion, we find that because the record was neither complicated nor voluminous, coupled with the fact that Wall failed to make out an apparent case of error, the circuit court should have affirmed the judgment of the county court—even though Griffith failed to file a brief. In reaching this end, it is not our intent to condone a litigant's failure to file a brief. Nor do we encourage future litigants to approach the appellate process in a careless manner; for when a litigant does so, he does so at his own peril. Yet we find that in this specific case, with these specific facts, a case of error was not made. Therefore, we reverse and render the judgment of the circuit court. The judgment [*10] of the county court is reinstated.


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