Donato v. Moldow

Citation: Donato v. Moldow, 374 N.J. Super. 475, 499 (App. Div. 2005).

Factual Background
Appellants, Vincent Donato and Gina A. Calogero, elected members of the Emerson Borough Council, sued the website operator, defendant Stephen Moldow, and numerous fictitious parties, identifying them by the pseudonyms they used when posting their messages. Moldow established a website where he posted information about local government activities. The site also included a discussion forum, in which any user could post messages, either with attribution or anonymously.

Negative messages were posted about appellants. Appellants claim that the messages posted constitute defamation, harassment and intentional infliction of emotional distress, and that Moldow is liable for damages because he was the publisher.

Trial Court Proceedings
The trial judge found that Moldow was immune from liability under Section 230 of the Communications Decency Act and granted Moldow’s motion to dismiss the complaint against him for failure to state a claim upon which relief can be granted.

Appellate Court Proceedings
Appellants’ contention on appeal was that Moldow should be potentially liable because he published defamatory statements made by third parties. They further allege that Moldow was more than passive in his role as publisher, and “has actively participated in selective editing, deletion, and re-writing of anonymously posted messages.”

The appellate court did not agree. The court found that the defendant website operator qualified as a user and was covered by the general immunity provision under Section 230. Furthermore, the fact that the defendant allowed users to post messages anonymously or knew the identity of users was not relevant to the terms of Congress’ grant of immunity. The website operator was not responsible for the creation or development of the defamatory messages. The trial court decision was affirmed.