Civil No. PJM 97-3463

OPINION

I.

Pro se Plaintiff Alan J. Truelove, for himself and as parent and next friend of Alison H. Truelove, his minor daughter, has filed a one-count Second Amended Complaint against four Defendants -- Mensa International, Ltd., American Mensa Ltd., L-Soft International Inc., and CompuServe, Inc. Although framed in a single count, the Complaint actually appears to allege several distinct causes of action, viz, breach of contract against the two Mensa organizations; negligent permission to use its equipment and computers against CompuServe; negligent permission to use its computer software against L-Soft; and defamation and intentional infliction of emotional distress against all Defendants.(1)

Defendant L-Soft has filed a Motion to Dismiss, which Plaintiffs oppose. The Court has determined to GRANT the Motion.

II.

The relevant facts may be stated succinctly. Plaintiffs assert that they are members of the Mensa organizations (2) and that they have been denied certain benefits of membership, including access to chat rooms on the Internet reserved for members of Mensa. They also say that they have been defamed by the Mensa organizations, particularly on Mensa message boards on the Internet.

Plaintiffs allege no contract of their own nor any breach of same as far as L-Soft is concerned. What they say is that the Mensa defendants have a contract with L-Soft which "provides a physical Computer platform host and relevant Computer Software." L-Soft maintains an Internet News group and List for Mensa members on which the members may post messages and send and receive e-mails without prior screening. According to Plaintiff Alan Truelove, he was wrongly terminated from membership on the L-Soft Mensa list and subsequently libelled on the list, events which took place on the Computer platform owned by L-Soft and located on L-Soft’s premises in Laurel, Maryland. Plaintiffs’ claim against L-Soft is that, either negligently or willfully, it permitted the Mensa Defendants to remove Truelove from use of the list and allowed the libelous statements to appear on it.

Plaintiffs pray injunctive relief against L-Soft --specifically that it preserve Plaintiffs’ right to see and respond to all Mensa messages on the Internet and that it respond in damages for injury to Plaintiffs’ reputation and loss of membership privileges.

III.

L-Soft has moved to dismiss on several grounds, only one of which need be considered, viz, that Plaintiffs’ claim is barred by § 230 of the Communications Decency Act, 47 U.S.C. § 230. The Court finds this argument well taken.

Section 230 of the CDA states that "[n]o provider … of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." 47 U.S.C. § 230(c) (1) .(3) Accordingly, any lawsuit attempting to hold "service providers liable for information originating with a third party user of the service" is barred. Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997), cert. denied, 118 S.Ct. 2341 (1998) ("By its plain language, § 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").

The Fourth Circuit has also held that § 230 precludes courts from entertaining lawsuits that seek to hold an interactiVe computer service liable for failure to exercise traditional editorial functions of a publisher such as deciding "whether to publish, withdraw, postpone or alter content." Id. When enacting § 230, Congress made a policy choice not to attempt to deter harmful or defamatory online speech by imposing tort liability on interactive computer services. Id. at 330-31. In essence "[Congress] made the legislative judgment to effectively immunize providers of interactive computer services from civil liability in tort with respect to material disseminated by them but created by others." Blumenthal v. Drudge, 992 F. Supp. 44, 49 (D.D.C. 1998). Section 230, on the other hand, in no way restricts the accountability of the party who posted the defamatory messages in the first place.

IV.

Plaintiffs concede that L-Soft is an "interactive computer service" under § 230. It provides a list mailing service through its computer hardware and software, enabling many people to access the Internet. Information provided by others passes through

L-Soft’s equipment and software without any intervention by L-Soft or its personnel. L-Soft exerts no control over material posted through its services, nor does it determine who may subscribe to the lists provided by their equipment. In the instant case, for example, it was the Mensa organizations that controlled posting and subscribing to the L-Soft List.

That, quite simply, is the end of the matter. As an "interactive computer service" under § 230, L-Soft is immune from precisely the type of liability Plaintiffs seek to impose here. Plaintiffs’ claims against L-Soft, however they may be styled, must fail.

V.

For the foregoing reasons, the Court will GRANT Defendant L-Soft’s Motion to Dismiss. L-Soft’s request for an award of costs and fees in defending this action are DENIED.

A separate Order will be entered implementing this decision.

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PETER J. MESSITTE
UNITED STATES DISTRICT JUDGE

February 10, 1999

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1 The preferred practice in pleading is that each cause of action be set out in a separate count. See Fed. R. Civ. P. 10(b), ElA Am. Jur. 2d, Pleading, §§ll6-119. The Court assumes that in the course of these proceedings Defendants will file appropriate dispositive motions to test the viability of these various claims.

2 "Mensa" is the collective name for international and national membership organizations whose members have intelligence quotients in the top 2% of the population.

3 The statute defines "interactive computer service" as "any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access by the Internet and such systems operated or services offered by libraries or educational institutions." 47 U.S.C. §230(e) (2). An "information content provider" is defined in the statute as "any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service." Id. § 230(e) (3). In the instant case, the unidentified third party Mensa members who posted the allegedly defamatory material fit the definition of an "information content provider."

Civil No. PJM 97-3463

FINAL ORDER AS TO DEFENDANT L-SOFT ONLY

Upon consideration of Defendant L-Soft’s Motion to Dismiss and Plaintiffs’ Opposition thereto, it is for the reasons set forth in the accompanying Opinion this 10th day of February, 1999

ORDERED that Defendant L-Soft’s Motion to Dismiss is hereby GRANTED; and it is further

ORDERED that said Defendant’s Motion for Attorney’s Fees is hereby DENIED; and it is further

ORDERED that final judgment is hereby ENTERED in favor of Defendant L-Soft and against Plaintiffs.