Inglewood attorney Evelyn Regina Gillespie sent a letter to STDCarriers.com containing her own snitch paperwork along with demands that the website remove a page about her client Jolen Sanders. The letter was addressed to the founder of the site by name at the site's post office box and falsely accused him personally of "maliciously spreading false and unfounded information." She then cited a civil statute from an inapplicable jurisdiction, quoted the accusations made by a user of the website as if they were made by the website itself, and added "We have additionally filed criminal complaints with the local police and the Federal Bureau of Investigation."
"You understand that all postings, messages, text, files, images, photos, or other materials ("Content") posted on, transmitted through, or linked from the Service, are the sole responsibility of the person from whom such Content originated... You understand that STDCarriers.com does not control, and is not responsible for Content made available through the Service, and that by using the Service, you may be exposed to Content that is offensive, indecent, inaccurate, misleading, or otherwise objectionable... You agree that you must evaluate, and bear all risks associated with, the use of any Content, that you may not rely on said Content, and that under no circumstances will STDCarriers.com be liable in any way for any Content or for any loss or damage of any kind incurred as a result of the use of any Content posted, emailed or otherwise made available via the Service. You acknowledge that STDCarriers.com does not pre-screen or approve Content, but that STDCarriers.com shall have the right (but not the obligation) in its sole discretion to refuse, delete or move any Content that is available via the Service, for violating the letter or spirit of the TOU or for any other reason."
By checking the box on the online form, Mr. Sanders agreed that STDCarriers.com is not legally liable for UGC. The TOU further states:
"You and STDCarriers.com agree to submit to the personal and exclusive jurisdiction of the courts located within the Kingdom of the Netherlands."
By agreeing to submit to Dutch courts, Mr. Sanders agreed that the California statutes do not apply. The Kingdom of the Netherlands is the appropriate jurisdiction because the STDCarriers.com server hosting the content in question is physically located within that jurisdiction and it is ultimately the Dutch courts that have final say over what can or cannot be hosted on servers in that country. STDCarriers.com does not have a physical presence in the state of California, so even if Mr. Sanders had not agreed to Dutch jurisdiction the California courts still would not have jurisdiction in this matter.
Even if the California courts had jurisdiction in this matter, Section 230 of the Communications Decency Act (CDA) grants immunity from liability for UGC to service providers including STDCarriers.com. The relevant part reads, "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider" (https://www.eff.org/issues/cda230). That means that a website cannot be treated as the speaker of statements made by its users. It directly contradicts Ms. Gillespie's accusations against STDCarriers.com including:
"Under California Civil Code Section 45a, it is unlawful for an individual to put in print and/or disseminate information that intends to harm a person's reputation without factual evidence or based on hearsay." - Evelyn Gillespie
Gillespie is twisting the California Civil Code to make it sound as if STDCarriers.com can be treated as the speaker. That simply is not true. STDCarriers.com covers this in disclaimers that are available at the click of an obvious button on every profile:
"It is possible for UGC to be inaccurate for a number of reasons including, but not necessarily limited to false positives (Type I errors that reject an accurate null hypothesis stating that a non-existent condition exists), fabrications by the authors in violation of the TOU, dissemination of false statements made by third parties, or information derived from sources published elsewhere that are not accurate. UGC is 100% accurate as a presentation of alphanumeric and non-alphanumeric strings of characters as they exist in a database regardless of the order in which they are arranged. Due to the fact that UGC can be false or otherwise misleading STDCarriers.com does not claim that any material published by an End User including any and all statements regarding the sexually transmitted disease (STD) status of an individual or group of individuals is true in fact."
The page in question has to be considered in its entirety and not just in part. Gillespie's approach is typical of civil litigators in these situations; they look at a web page and evaluate it on its face with no knowledge of how it came to exist in the first place; this is not a case of someone working for the website creating anything; this is not a case where someone at the website read and approved anything; it is a case where a third party inserted data into an automated system. An automated system does not have a state of mind let alone the culpable state of mind necessary to defame a person. Taken as a whole that page does not make any factual claims about Mr. Sanders other than the fact that someone made statements about him. The site accurately claims that someone else made a statement, that the statement may or may not be accurate, and then accurately displays the statement in its entirety. California Civil Code 45a reads:
"A libel which is defamatory of the plaintiff without the necessity of explanatory matter, such as an inducement, innuendo or other extrinsic fact, is said to be a libel on its face. Defamatory language not libelous on its face is not actionable unless the plaintiff alleges and proves that he has suffered special damage as a proximate result thereof. Special damage is defined in Section 48a of this code."
In any court case the burden of proof is on the plaintiff to prove that the statements are not true. One cannot prevail with allegations alone. Assuming for the sake of argument that Mr. Sanders is telling the truth, the statute does not cover the unknowing quotation of a defamatory statement by someone other than the speaker. If you were to make a defamatory statement and someone were to tell others what you said that person is not defaming the person that you defamed. Now, we don't know if Mr. Sander or Ms. Gillespie are telling the truth. We just know that a third party signed up for a membership and made the statements in question. If true the statements are not defamatory and if false they are. Either way STDCarriers.com does not know which side is telling the truth. One cannot knowingly disseminate a defamatory statement unless they know that it is defamatory.
Section 230 is a vital part of our democracy. If service providers were treated as speakers then free speech would not exist on the internet. Imagine what the internet would look like if websites had to remove posts every time someone disputed their accuracy? Under those circumstances it would not take the subjects of negative statements long to figure out that all they needed to do to bury the truth would be denying it with defamation claims. That is why sites like STDCarriers.com must stick to their guns and protect their users in these situations. Neither Ms. Gillespie nor Mr. Sanders have produced any evidence that this user has lied or otherwise abused the TOU. We will not be intimidated by threats. We will not remove a post just because somebody paid a lawyer to say that it includes false statements.
We have a process in place for Mr. Sanders to clear his name (https://stdcarriers.com/legal/recordremoval.aspx). That policy mentions the fact that anyone can send a message to any post author and that author can remove their own work at any time. If at any time we are convinced that the user has violated the TOU then their account will be suspended, their posts removed, and their information made available. Users found in breach of contract agree to compensate their victims and STDCarriers.com:
"If you are found to have violated this section you agree to compensate the victim a monetary amount not less than $5,000 United States Dollars plus all legal expenses including, but not necessarily limited to attorney fees, court fees, medical expenses for any lab work performed to disprove statements made about the victim, and investigation expenses up to the maximum monetary amount allowed by law."
That part of the TOU was put in place to help people like Mr. Sanders if he can prove that the user falsely accused him. Other parts of the TOU incentivize us to pursue damages of our own against such people. If the statements about Mr. Sanders are false then disproving them is in our mutual interest.
Finally, Mr. Sanders already agreed not to pursue legal action against STDCarriers.com, "You agree that regardless of any statute or law to the contrary, not to file any claim or cause of action against STDCarriers.com arising out of or related to use of the Service or the TOU." Filing any lawsuit for any reason is a breach of that agreement.