Opinion
23-P-588
07-16-2024
JAMES TODINO v. TWITTER, INC., & others[1] (and eight companion cases[2]).
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On April 30, 2021, the plaintiff, James Todino, filed defamation actions against ten sets of defendants. The ten cases were consolidated by order dated May 6, 2021, although one of the cases (James Todino vs. PayPal, Middlesex Super. Ct., No. 2181CV00965) subsequently was removed to Federal court, and is not a part of this appeal. The appeal before us focuses on judgments entered in four of the remaining cases: those brought by Todino against defendants Twitter, Inc.; Pinterest; Google, Inc.; and Facebook, Inc. In each of those cases, a Superior Court judge allowed motions to dismiss Todino's amended complaints filed by those defendants who had been identified (identified defendants) on the ground that the defendants were immune from suit pursuant to § 230 of the Federal Communications Decency Act, 47 U.S.C. § 230 (§ 230). See Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). The motion judge then denied Todino's motions for reconsideration. On Todino's appeal, we affirm.
The other five cases were also dismissed, three on statute of limitations grounds and two for lack of service. Although Todino's notice of appeal nominally applies to the judgments in these other five cases, he makes no argument in his brief as to how the dismissal of those cases constituted error. Any claim of error therefore has been waived. See Commonwealth v. Winfield, 464 Mass. 672, 684 (2013) (arguments not raised on appeal are waived). We accordingly affirm the judgments in those cases. For the same reason, Todino's appeal from the orders denying his motions for reconsideration is waived.
Background. All of the identified defendants were sued as operators of social media sites. According to Todino's amended complaints, anonymous users posted content to the social media sites that included false statements about him, or offensive material (such as pornography) that falsely was presented as having been posted by him. Todino alleges that the posting of the content amounted to defamation, entitling him to injunctive relief and damages. He claims that the identified defendants are liable in their own right for refusing to take down the posts even after he demonstrated their defamatory nature.As the motion judge accurately pointed out, appellate courts have interpreted § 230 as providing extremely broad immunity to those in the defendants' position. Such immunity applies where "the defendant (1) is a provider or user of an interactive computer service; (2) the claim is based on information provided by another information content provider; and (3) the claim would treat the defendant as the publisher or speaker of that information." Massachusetts Port Auth. v. Turo Inc., 487 Mass. 235, 240 (2021), quoting Doe v. Backpage.com, LLC, 817 F.3d 12, 19 (1st Cir. 2016), cert. denied, 580 U.S. 1083 (2017). As to the first criterion, it is uncontested that the identified defendants qualify as providers of an "interactive computer service" as that term is used in § 230. Todino also does not appear to contest the second criterion, namely that the defendants were not the creators of the content at issue.
The judge indicated in his memorandum of decision and order that he allowed Todino to expound on his allegations at the hearing on the motion to dismiss.
The motion judge observed that at the motion hearing, Todino "concede[d] that the defendants were not the creators of the content at issue." In his motions for reconsideration, Todino argued that he did not concede the point and pointed to the possibility that the identified defendants themselves theoretically could have posted the relevant content. This does not assist Todino for three reasons. First, because he did not supply a transcript of the motion hearing, we have no basis for assessing whether the judge was correct that he affirmatively conceded that third parties had made the posts. Second, Todino does not allege in his amended complaints that the identified defendants themselves made the posts. Third, the mere fact that the posts theoretically could have been made by the defendants would not be enough for Todino to plausibly suggest an entitlement to relief. See Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008) (setting forth standard applicable to motion to dismiss for failure to state claim). See also Estate of Moulton v. Puopolo, 467 Mass. 478, 492 n.19 (2014) ("mere speculation . . . does not satisfy the requisite standard" for motion to dismiss).
The third criterion also applies, because the essence of Todino's claims is that the identified defendants are liable for publishing the content that a third party had posted. Todino seeks to avoid the application of this criterion by maintaining that he is suing the identified defendants not for posting the content, but for refusing to remove it. However, none of the cases draws such a distinction. To the contrary, the cases establish that whether to withdraw a posting is an editorial decision covered by § 230 immunity, and that such immunity "applies even after notice of the potentially unlawful nature of the third-party content." Universal Communication Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 420 (1st Cir. 2007). Recasting the defamation claim as one for negligence does nothing to save it from falling within § 230's ambit.
We are unpersuaded by Todino's additional arguments. For example, while it is true that § 230 does not shield any party from criminal liability, see 47 U.S.C. § 230(e)(1), Todino has not alleged that the identified defendants have violated any criminal statutes and, in any event, whether to enforce such laws would fall to the relevant prosecutors, not to Todino.
For completeness, we note a procedural issue not addressed by any party. In each of the four actions that are the focus of this appeal, Todino joined as a defendant the unidentified user(s) who had posted the content (referenced as "John Doe"). Of course, John Doe "himself" is not entitled to § 230 immunity. In his memorandum of decision and order allowing the identified parties' motions to dismiss, the judge did not address Todino's claims against John Doe. Nevertheless, the various judgments of dismissal that entered are not limited to the claims that Todino brought against the identified parties. Rather, those judgments ordered simply that Todino's "Complaint be and hereby is dismissed." In his brief, Todino raises no argument that his
John Doe claims were improperly dismissed. Accordingly, such arguments are not before us. See note 3, supra.
Lest our ruling be misunderstood, one final clarification is warranted. If someone in Todino's position had secured injunctive relief requiring third parties to remove defamatory content that they had posted to a social media site, but those parties refused to comply, the question would arise whether such a plaintiff could secure an order requiring the social media sites themselves to remove the material (on the theory that the plaintiff was not invoking their own liability but simply enforcing the judgment against the third party). See Murcia, Section 230 of the Communications Decency Act: Why California Courts Interpreted It Correctly and What That Says About How We Should Change It, 54 Loy. L.A. L. Rev. 235 (2020) (discussing issue). Compare Hassell v. Bird, 5 Cal. 5th 522, 527-533, 548 (2018) (plurality opinion concluding that § 230 immunity applies even in that context), with id. at 565-566 (Liu, J. dissenting). We do not reach this issue because it is not presented in the current appeal.
The judgments of dismissal entered in this case and in the eight companion cases are affirmed. We additionally affirm the orders denying Todino's motions for reconsideration.
So ordered.
Milkey, Shin & Englander, JJ .
The panelists are listed in order of seniority.