Section 230 Protects GMAC – For Now

Much like an activated airbag, it appears that section 230 of the Federal Communications Decency Act protects GMAC in a defamation suit stemming from an online posting made by one of its employees. At least according to a federal court in Arizona. A GMAC employee made a disparaging comment about John Mealer – an inventor who claims to have come with technology that will vault his company – Mealer Companies LLC (real creative guy) into direct competition with GM and other major car companies. Mealer had posted a note about the GM bankruptcy on the Automotive News Web site. GMAC employee Kris Kordella posted a response on the GMAC Web site that apparently disparaged Mealer and his fledgling company. Mealer claims the comments cost him potential capital of $200,000,000. GMAC moved to dismiss stating that it was protected by § 230. That section says that “no provider of an interactive computer service” shall be deemed the publisher of content provided by another. Mealer’s claims against GMAC were apparently based solely on the fact that Kordella made the comments “by and through the Internet Service Provider . . . which is owned, located, registered to and secured within the GMAC corporate headquarters.” Which makes GMAC pretty much a “provider of an interactive computer service.” Which makes GMAC not the publisher of Kordella’s comment under § 230. And all of that is true to a point. But the court did not seem to consider the doctrine of “respondeat superior.” That is a fancy term for the notion that an employer is responsible for the acts of its employee when the employee is acting in the interests of the employer. Simply put, if you get rear ended by a UPS driver while he’s making a delivery, UPS is liable. So, the question here, it seems to me, is whether Kordella was acting in GMAC’s interests when he trashed Mealer. If so, then respondeat superior would say that GMAC was the content provider, and § 230 would not shield it from liability. It’s not clear why the court didn’t address this issue, but it could be that Mealer, who was representing himself, didn’t plead the case right. So while this case is sort of encouraging if you’re an employer, note that the protection it offers may be a little more limited than it first appears. And it’s probably a good idea to discourage your employees from spouting off about competitors on or off line.