IN THE DISTRICT COURT OF APPEAL FOR THE FOURTH DISTRICT OF FLORIDA. Case No. 4D MEDYTOX SOLUTIONS, INC., SEAMUS LAGAN and WILLIAM G.

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1 IN THE DISTRICT COURT OF APPEAL FOR THE FOURTH DISTRICT OF FLORIDA Case No. 4D MEDYTOX SOLUTIONS, INC., SEAMUS LAGAN and WILLIAM G. FORHAN, Plaintiffs/Appellants, v. INVESTORSHUB.COM, INC., Defendant/Appellee. On Appeal from the Seventeenth Judicial Circuit Court in and for Broward County, Florida. INITIAL BRIEF Michael C. Marsh Francisco A. Rodriguez Naim S. Surgeon AKERMAN, LLP SunTrust International Center One S.E. Third Avenue, Suite 2500 Miami, Florida Telephone: Telefax:

2 TABLE OF CONTENTS Page TABLE OF AUTHORITIES... iii I. INTRODUCTION II. STATEMENT OF THE CASE AND OF THE FACTS A. STATEMENT OF THE CASE B. STATEMENT OF THE FACTS C. STANDARD OF REVIEW III. SUMMARY OF THE ARGUMENT IV. ARGUMENT A. The Communications Decency Act does not preempt Florida law as to equitable claims B. The preemption recognized by Doe v. America Online is limited to tort based claims seeking monetary liability C. Giordano v. Romeo did not hold that the Communications Decency Act preempts Florida law as to equitable claims V. CONCLUSION CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE II

3 TABLE OF AUTHORITIES Cases Page(s) Bell v. Indian River Mem l Hosp., 778 So.2d 1030 (Fla. 4th DCA 2001) Cubby, Inc. v. CompuServe, Inc., 776 F.Supp. 135 (S.D.N.Y. 1991) Diamond Aircraft Indus., Inc. v. Horowitch, 107 So.3d 362 (Fla. 2013) Doe v. America Online, Inc., 783 So. 2d 1010 (Fla. 2001)...passim Doe v. Franco Productions, No. 99 C 7885, 2000 WL (N.D.Ill. June 22, 2000) Doe v. GTE Corp., 347 F.3d 655 (7th Cir. 2003) Fla. Dep't of Envtl. Prot. v. ContractPoint Fla. Parks, LLC, 986 So. 2d 1260 (Fla. 2008) Gade v. Nat l Solid Wastes Mgmt. Ass n, 505 U.S. 88, 112 S.Ct. 2374, 120 L.Ed.2d 73 (1992) (plurality opinion)... 15, 16 Giordano v. Romeo, 76 So.3d 1100 (Fla. 3d DCA 2011)...passim Grant's Dairy Me., LLC v. Comm'r of Me. Dep't of Agric., Food & Rural Res., 232 F.3d 8 (1st Cir. 2000), aff'd 538 U.S. 644, 123 S.Ct. 1855, 155 L.Ed.2d Heldenmuth v. Groll, No. 4D12-541, 2013 WL (Fla. 4th DCA Dec. 18, 2013) III

4 Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581 (1941) Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 110 S.Ct. 1570, 108 L.Ed.2d 842 (1990) Mainstream Loudon v. Board of Trustees of the Loudon Country Library, 2 F.Supp.2d 783 (E.D.Va. 1998)... 13, 22 Pharm. Research & Mfrs. of America v. Concannon, 249 F.3d 66 (1st Cir. 2001) Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987) Pulkkinen v. Pulkkinen, No. 1D , 2013 WL (Fla. 1st DCA Nov. 26, 2013) Reno v. ACLU, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997) State v. Harden, 938 So. 2d 480 (Fla. 2006) Stratton Oakmont, Inc. v. Prodigy Servs. Co., 1995 WL (N.Y.Sup. May 24, 1995)... 3, 4, 18, 19 United States v. Morton, 467 U.S. 822, 104 S.Ct. 2769, 81 L.Ed.2d 680 (1984) Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997)... 21, 25, 26 Statutes 47 U.S.C , 25 Communications Decency Act...passim 230 of the Communications Decency Act...passim 230(c) of the Communications Decency Act...passim IV

5 (1) Fla. Stat. (1993) (2) Fla. Stat. (1993) Other Authorities Title V of the Telecommunications Act of 1996, Pub.L , 110 Stat. 56 (1996) V

6 I. INTRODUCTION This Court should reverse the Circuit Court s Order dismissing with prejudice the action filed by Appellants Medytox Solutions, Inc., Seamus Lagan, and William G. Forhan (the Medytox Parties ) against INVESTORSHUB.COM, Inc. ( Investorshub ). The Medytox Parties sued Investorshub seeking as their sole remedy a permanent injunction removing the defamatory postings uploaded on the internet forums maintained by Investorshub by third-party Christopher Hawley. The postings were found to be false and libelous by a jury in a separate action brought against Mr. Hawley by the Medytox Parties. However, Investorshub argued that Section 230(c) of the Communications Decency Act which is titled the Protection for Good Samaritan blocking and screening of offensive material preempts and bars any remedy otherwise available to the Medytox Parties under state law. The Circuit Court struggled with the consequences of this draconian argument, but ultimately dismissed the action with prejudice finding preemption under Doe v. America Online, Inc., 783 So. 2d 1010 (Fla. 2001) and Giordano v. Romeo, 76 So. 3d 1100 (Fla. 3d DCA 2011). This Court should reverse the order of dismissal because the Communications Decency Act does not preempt state law with respect to claims AKERMAN SENTERFITT, ONE SOUTHEAST THIRD AVENUE, SUITE 2500, MIAMI, FL

7 for injunctive relief. Indeed, nothing in the language of Section 230(c) or the legislative history - indicates that Congress intended to preempt equitable causes of action traditionally available under state law for the removal of libelous statements. II. STATEMENT OF THE CASE AND OF THE FACTS A. STATEMENT OF THE CASE. On February 19, 2013, the Medytox Parties filed a one-count Complaint against Investorshub for declaratory and injunctive relief seeking the removal of the libelous statements posted by Mr. Hawley on the Investorshub site. 1 It is undisputed that the substance of the statements made by Mr. Hawley constitute libel per se, the statements are libelous on their face. The Complaint, however, did not seek to hold Investorshub liable for any monetary damages caused by the posting of the libelous statements. Investorshub responded by moving to dismiss the Complaint on the grounds that the action was preempted by the Communications Decency Act. 2 Investorshub also filed a motion for sanctions against the Medytox Parties. 3 In an effort to expedite the proceedings and secure the removal of the libelous postings, the 1 See Compl. (February 19, 2013) [App. 1-83]. Citations are to filings contained in the Record. 2 See Motion to Dismiss (April 3, 2013) [App ]. 3 See Motion for Sanctions (April 3, 2013) [App ]

8 Medytox Parties agreed that the Circuit Court was compelled to follow the decision of the Third District Court in Giordano v. Romeo, 76 So. 3d 1100, 1102 (Fla. 3d DCA 2011) as the only decision by a Florida court on the availability of injunctive relief against an internet service provider. However, given the pendency of a meritless motion for sanctions, the Medytox Parties insisted on having a hearing on the Motion to Dismiss. A hearing on the motion to dismiss was held on April 30, 2013, and the Circuit Court expressed concerns about a rule that would immunize libel per se on the internet and asked the Medytox Parties to file a memorandum of law on the issue. The Medytox Parties filed their memorandum of law on May 6, In their memorandum of law, the Medytox Parties argued that Section 230 of the Communications Decency Act had only been enacted in response to the decision in Stratton Oakmont, Inc. v. Prodigy Servs. Co., 1995 WL (N.Y.Sup. May 24, 1995), which held that an internet service provider that acted as a Good Samaritan and screened the content of statements posted on its site subjected itself to liability for allowing the posting of libelous statements. The Medytox Parties argument was consistent with the actual focus of Section 230, namely the Protection for Good Samaritan blocking and screening of offensive material. 4 See Memorandum of Law (May 6, 2013) [App ]

9 The Circuit Court held another hearing on June 12, At the hearing, counsel for Investorshub surprisingly argued that Section 230 had been in effect long before 1995 and the Stratton Oakmont decision. The Circuit Court ordered Investorshub to file a copy of the pre-1995 version of Section 230. However, counsel for Investorshub had to admit her error and confirmed that Section 230 had in fact been enacted in response to the Stratton Oakmont decision. 5 On June 17, 2013, the Circuit Court dismissed the Complaint without prejudice on the grounds that the Complaint did not state a cause of action for injunctive relief as the claim for injunctive relief had to be pled as a separate count. 6 On June 21, 2013, the Medytox Parties filed an amended complaint which was identical to the initial complaint except for the pleading of separate count for injunctive relief in addition to the count for declaratory relief. Like the initial complaint, the Amended Complaint did not seek to hold Investorshub liable for 5 See Notice of filing (June 14, 2013) filing letter from Investorshub's counsel apologizing for her misrepresentations to the Circuit Court. [App ]. 6 See Order of Dismissal without prejudice (June 17, 2013) [App. 145]

10 any monetary damages suffered by the Medytox Parties as a result of the posting of the libelous (per se) statements. 7 Investorshub moved to dismiss the Amended Complaint on July 1, 2013 arguing, among other things, immunity under the Communications Decency Act. 8 The Circuit Court dismissed the Amended Complaint on August 15, 2013 based upon Doe v. America Online and Giordano v. Romeo. 9 On September 12, 2013, the Medytox Parties filed a timely Notice of Appeal, seeking review of the Order of Dismissal by this Court. 10 B. STATEMENT OF THE FACTS. 1. Medytox is a public company that provides general healthcare related services, including expedited urine toxicology screenings. See Amended Compl. at 8 [App ]. 2. Mr. Lagan is an executive of Medytox and represents the company in various business affairs both here and abroad. Id. at 9. 7 See Amended Complaint (June 21, 2013) [App ]. 8 See Motion to Dismiss Amended Complaint (July 1, 2013) [App ]. 9 See Order of Dismissal (August 15, 2013) [App. 273]. 10 See Notice of Appeal (September 12, 2013) (App )

11 3. Mr. Forhan is the Chief Executive Officer of Medytox and also represents the company in various domestic business affairs. Id. at The Plaintiffs learned that a series of public postings had been made to a website identified as Investorshub sometime between the period beginning January 1, 2012 and October 12, Id. at Investorshub is a website that is purportedly designed to serve as a forum for serious investors to gather and share market insights and other information about public companies and their employees through discussion platforms. Id. at At the time the Amended Complaint was filed, Investorshub had approximately 383,540 members who had posted more than 84,612,594 postings on its 21,628 message boards. New postings were added at a rate of 40,000 new messages on each trading day. Id. at Consequently, Investorshub provides a platform for a broad swath of the investment community seeking information about investments. Id. at Medytox is the kind of company that investors would seek to learn more about through the Investorshub platform. Id. at The public postings referenced above were posted to the Investorshub forum by a user identified as Seamus outer under the ticker symbol for Medytox, - 6 -

12 MMMS. Notably, the user identification name selected by the poster is a direct reference to Mr. Lagan s uncommon first name. Id. at Between the dates of May 19 and May 20, 2012, the user identified as Seamus outer published false and libelous or defamatory statements about Medytox, Mr. Lagan, and Mr. Forhan on the Investorshub discussion boards. Id. at Contained within the four original postings were statements such as, (i) if you are thinking of investing... or loaning money... to these folks [these folks being Medytox Solutions and/or Mr. Lagan]... I gotta bridge for sale in Brooklyn...; (ii) Pyramid scam penny stock pump-and-dump company: Medytox Solutions, Inc.... He [Mr. Lagan] thinks that like all his other scams... he will skate because it s a white-collar crime... As I write; The FBI, US Attorney, Office of Inspector General, IRS and U.S. State Department are all investigating his crooked ass, and all the rest of the Medytox toxic waste... ; and, finally, (iii) Medytox Solutions, Inc. FRAUD FRAUD FRAUD FRAUD. Make sure to read all the posts on these thieves here on this site. Id. at These statements were false and continue to be false. Id. at On October 3, 2012, counsel for the Medytox Parties served a subpoena to the Records Custodian of Investorshub in order to determine the identity of the poster Seamus outer. Id. at

13 14. On October 11, 2012, the Records Custodian for Investorshub produced a sworn affidavit of authenticity and accuracy. Id. at The business records, which are kept in the ordinary course of Investorshub s business, identify the user Seamus outer as Christopher K. Hawley, a defendant/counter plaintiff in a related action. Id. at Through Investorshub, a website aimed at informing a substantial community of investors about public companies and thereby guiding the investment activities of those investors, Mr. Hawley repeatedly published false and libelous statements concerning Mr. Lagan, Mr. Forhan and Medytox Solutions. Id. at As a result, Medytox Solutions and Mr. Lagan filed a third-party complaint against Hawley for defamation and tortious interference with business relationships as a result of the impact that his postings had on Medytox s investors and Mr. Lagan s reputation. Id. at At a hearing on Mr. Hawley s motion to dismiss conducted before the Honorable Jeffrey E. Streitfeld, Judge Streitfeld stated the he found the postings offensive and Hawley, through his counsel, agreed to pursue efforts to remove the identified postings. Id. at

14 19. On December 21, 2012, through counsel, Medytox and Lagan reached out to Investorshub, through its counsel, to inform the company of the discussion before the court and to seek means to remove the postings. Id. at As a result of those exchanges, and after considerable resistance, two of the libelous postings were removed. But, Investorshub has refused to the remove the two remaining postings, which are equally defamatory and, among other things, contain the following language: (a) Posting 2: That property [referring to the location of one of Medytox s Labs] belongs to another Shell : Phoenix Family LP, who just bought it August of Humm... wonder who they are? Can t find that company listed or any of its directors. Interesting though that a Big Global credit Master Fund has its US offices at a private residence in Hollywood Florida that you can t easily find out who the owner of is... You may want to look up a website for their Laboratory...if you date call it that. Here it is: Lots of pretty pictures and polished pronouncements. Its all B.S. Put PB Laboratories address into Google Earth (7451 S. Military Trail Lake Worth, Florida 33463). You ll find a 30 wide store front in a strip shopping center. Wow... All those pretty photos are the free ones you can get of [sic] the internet. NOT ONE OF THEM WAS TAKEN IS THEIR SHITTY LITTLE store front!!! - 9 -

15 (b) Posting 3: Here is the latest... Medytox Solutions (F/K/A Casino Players, Inc.) new website has their new corporate structure listed: By clicking that link you ll no doubt note that CEO is none other than William (Wild Bill) Forhan. You ll also no doubt note that one of their directors is none other than the famous (Now famous) Miami Dolphin Star offensive lineman: Robert Kuechenberg. It seems that both have had their fair share of run ins with the law. Why Wild Bill himself was caught steeling monies from an employee 401k plan and has a long and distinguished track record of being COO, CEO of public companies that seem to lose their shirts while he is at the helm. He s a savy old con man though and has many a time lulled unsuspecting people into believing that he wasn t really at the helm but just asleep at the wheel. Don t be fooled. Even an old grifter can steel the pencils from a blind beggar given the opportunity. Id. at The language contained in the remaining postings is false and has caused, and continues to cause, irreparable harm to Medytox, Mr. Lagan, and Mr. Forhan. Id. at Medytox, as a business, is damaged by the suggestion that its laboratory, a laboratory responsible for, among other things, screening urine specimens from rehabilitation facilities and reporting reliable results, is nothing more than a ruse operating as a mere storefront. Id. at

16 23. Medytox is further damaged because its reputation is intractably bound up in the reputations of its principal executives, Mr. Lagan and Mr. Forhan, who are also personally damaged by the categorically false statements set forth in Hawley s postings. Id. at These postings have undermined or negatively impacted the reputations and goodwill of the Medytox Parties. 25. On July 2, 2013, a jury found that the statements posted by Mr. Hawley on Investorshub s site were false and had caused Mr. Lagan $750,000 in pain and suffering damages Nonetheless, Investorshub has continued hosting the false and defamatory statements about Medytox, Mr. Lagan, and Mr. Forhan, perpetuating the irreparable harm to their reputations, goodwill and standing in the community of investors. Id. at As of the date of this filing, a search on the Investorshub website for the ticker symbol MMMS brings up the postings, including those that were removed indicating only that their content is no longer available. Id. at See Verdict Form (July 2, 2013 Case No (07) in the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County, Florida)

17 C. STANDARD OF REVIEW. This Court reviews de novo an order dismissing a complaint with prejudice. See Heldenmuth v. Groll, No. 4D12-541, 2013 WL , at * 1 (Fla. 4th DCA Dec. 18, 2013) ( A motion to dismiss tests whether the plaintiff has stated a cause of action... When determining the merits of a motion to dismiss, the trial court s consideration is limited to the four corners of the complaint, the allegations of which must be accepted as true and considered in the light most favorable to the nonmoving party. ); see also Bell v. Indian River Mem l Hosp., 778 So. 2d 1030, 1032 (Fla. 4th DCA 2001) ( Because a ruling on a motion to dismiss for failure to state a cause of action is an issue of law, it is reviewable on appeal by the de novo standard of review. ) (citations omitted). III. SUMMARY OF THE ARGUMENT The Circuit Court reluctantly dismissed the Amended Complaint, concluding that the liability immunity of 230(c) of the Communications Decency Act preempted an equitable action for the removal of libelous postings. This decision is erroneous. Nothing in the Communications Decency Act or its legislative history suggests that Congress intended to preempt equitable claims for injunctive relief. On the contrary, the preemption mandate of Section 230 is titled Civil Liability

18 Indeed, the draconian interpretation of the Communications Decency Act advocated by Investorshub seeks to turn the civil liability immunity afforded by 230 into an unfettered license to maintain defamatory postings that Congress could not possibly have envisioned, and, not surprisingly, this position has been rejected by several federal and state courts. As the U.S. Court for the Eastern District of Virginia noted in one of the few reported cases that have addressed the issue directly, 230 (c) focuses on tort-based immunity to civil liability. Mainstream Loudon v. Board of Trustees of the Loudon Country Library, 2 F.Supp.2d 783, 790 (E.D.Va. 1998). Since Congress did not proscribe equitable relief, it stands to reason that the common law right to an injunction in equity remains. Id. Not only was Congress silent about the unavailability of injunctive relief, advocated by Investorshub, but such a broad immunity is contrary to the purpose of the Communications Decency Act: Yet [Section] 230(c) which is, recall, part of the Communications Decency Act bears the title Protection for Good Samaritan blocking and screening of offensive material, hardly an apt description if its principal effect is to induce [web site operators] to do nothing about the distribution of indecent and offensive materials via their services. Doe v. GTE Corp., 347 F.3d 655, 660 (7th Cir. 2003)

19 This Court should follow the federal and state cases that apply the immunity of Section 230(c) to bar any and all claims for monetary relief as Congress intended, but uphold the viability of the remedy of injunctive relief. Injunctive relief is a necessary remedy to prevent the irreparable harm that the Medytox Parties have suffered and continue to suffer as a result of Investorshub s stubborn and inflexible refusal to remove the offensive postings despite the poster s own request that they be removed and the jury s finding that the statements were false. IV. ARGUMENT A. The Communications Decency Act does not preempt Florida law as to equitable claims. The Circuit Court reluctantly accepted the argument that the Communications Decency Act immunizes internet service providers from any action for injunctive relief. The Circuit Court based its decision on the reasoning of the Florida Supreme Court in Doe v. America Online, which held that the Communications Decency Act preempted Florida law as to causes of actions based on alleged negligence. 783 So. 2d at But, this analysis ignores that while the Communications Decency Act has an explicit provision preempting tort-based liability, there is nothing in the act preempting injunctive relief

20 1. Preemption requires evidence of preemptive intent. The Florida Supreme Court, echoing numerous decisions of the U.S. Supreme Court, has made clear that preemption of Florida law by a federal statute requires evidence of preemptive intent. As the Florida Supreme Court explained in State v. Harden, 938 So. 2d 480, (Fla. 2006), under the Supremacy Clause, a federal law may expressly or impliedly preempt state law and causes of action based on state law. However, to find a state law or cause of action preempted, the federal law must fall under one of three limited categories of preemption: (1) express preemption, where a federal statute contains explicit pre-emptive language ; (2) implied field preemption, where the scheme of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it ; and (3) implied conflict preemption, in which compliance with both federal and state regulations is a physical impossibility or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Gade v. Nat l Solid Wastes Mgmt. Ass n, 505 U.S. 88, 98, 112 S.Ct. 2374, 120 L.Ed.2d 73 (1992) (plurality opinion) (explaining categories of preemption recognized in Supreme Court case law). In any preemption case, the court s ultimate task... is to determine whether state regulation is consistent with the structure and purpose of the statute as a whole. Id. (plurality opinion). This

21 involves looking to the provisions of the whole law, and to its object and policy. Id. (plurality opinion) (quoting Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 51, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987)). The nature of the power exerted by Congress, the object sought to be attained, and the character of the obligations imposed by the law, are all important in considering the question of whether supreme federal enactments preclude enforcement of state laws on the same subject. Hines v. Davidowitz, 312 U.S. 52, 70, 61 S.Ct. 399, 85 L.Ed. 581 (1941). In analyzing a claim of preemption, a reviewing court assumes that the historic police powers of the States [are] not to be superceded by... Federal Act unless that [is] the clear and manifest purpose of Congress. Pharm. Research & Mfrs. of America v. Concannon, 249 F.3d 66, 75 (1st Cir. 2001) (quoting Grant's Dairy Me., LLC v. Comm'r of Me. Dep't of Agric., Food & Rural Res., 232 F.3d 8, (1st Cir. 2000)), aff'd 538 U.S. 644, 123 S.Ct. 1855, 155 L.Ed.2d 889 (2003). Federal preemption of a state law is strong medicine, and is not casually to be dispensed. Id. (quoting Grant's Dairy, 232 F.3d at 18). As such, preemption of Florida s equitable laws providing for an injunction of libelous (per se) statements should not be found unless there is clear evidence of a Congressional intent to preempt Florida law, which is absent in this case

22 2. Section 230 is intended to encourage the blocking of offensive material on the internet. The preemption analysis begins with the plain language of the purportedly preemptive federal statute, which is the best evidence of legislative intent. See Pulkkinen v. Pulkkinen, No. 1D , 2013 WL , at * 3 (Fla. 1st DCA Nov. 26, 2013) (citing Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 835, 110 S.Ct. 1570, 108 L.Ed.2d 842 (1990); Diamond Aircraft Indus., Inc. v. Horowitch, 107 So.3d 362, 367 (Fla. 2013)). To understand the meaning of any particular provision of either statute, the provisions of the whole law should be considered. See United States v. Morton, 467 U.S. 822, 828, 104 S.Ct. 2769, 81 L.Ed.2d 680 (1984); Fla. Dep t of Envt l. Prot. v. ContractPoint Fla. Parks, LLC, 986 So. 2d 1260, 1265 (Fla. 2008). The application of these principles to Section 230(c) makes clear that this section was not intended to preempt a cause of action seeking the removal of libelous (per se) material from the internet. Section 230(c) of the Communications Decency Act is entitled Protection for Good Samaritan blocking and screening of offensive material. Sub-section C is divided in two sub-parts. The first sub-part has a clear and explicit mandate that internet service providers should not be treated as publishers. Section 230(c)(1) states in relevant part that:

23 (c) Protection for Good Samaritan blocking and screening of offensive material (1) Treatment of publisher or speaker 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. As the Florida Supreme Court explained in Doe v. America Online, the intent of Section 230(c)(1) was to resolve the conflict created by two conflicting decisions from New York. 783 So. 2d at The cases are Cubby, Inc. v. CompuServe, Inc., 776 F.Supp. 135 (S.D.N.Y. 1991), and Stratton Oakmont, Inc. v. Prodigy Services Co., 1995 WL (N.Y.Sup. 1995). In Cubby, the federal district court held in a defamation action that CompuServe, a service provider that offered its subscribers access to an electronic library of news publications, was a mere distributor of information and could not be held liable for libelous statements made in news publications without a showing of actual knowledge. Subsequent to the federal decision in Cubby, a New York state court decided Stratton Oakmont and concluded that an internet service provider could be held liable as a publisher of defamatory statements if the internet service provider retained editorial control over the postings contained on its site WL , at *4. This decision created a paradox in that internet service providers were penalized for trying to control what was placed on the internet

24 In 1996, Congress enacted 47 U.S.C. 230, which was adopted as Title V of the Telecommunications Act of 1996, Pub.L , 110 Stat. 56 (1996) (codified in scattered sections of 15 and 47 U.S.C.). See Reno v. ACLU, 521 U.S. 844, 859 n. 24, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997). The Congressional Conference Report on section 230 specifically states: [T]his section provides Good Samaritan protections from civil liability for providers or users of an interactive computer service for actions to restrict or enable restriction of access to objectionable online material [O]ne of the specific purposes of [section 230] is to overrule Stratton-Oakmont [Stratton Oakmont] v. Prodigy and any other similar decisions which have treated such providers and users as publishers or speakers of content that is not their own because they have restricted access to objectionable material. S. Conf. Rep. No , at 435 (1996)). Congress, therefore, enacted 230(c) and part (1) in particular - to remove the disincentives to self-regulation created by the Stratton Oakmont decision. Under the holding of Stratton Oakmont, computer service providers who regulated the dissemination of offensive material on their services risked subjecting themselves to liability because such regulation cast the service provider in the role of a publisher. Fearing that the specter of liability would therefore deter service providers from blocking and screening offensive material, Congress enacted 230. The Florida Supreme Court has found that Section 230 had a second purpose. According to the Florida Supreme Court, in addition to establishing the

25 freedom to screen and edit user-generated content, the Communications Decency Act was intended to encourage the unfettered and unregulated development of free speech on the Internet... by eliminating civil liability for the distribution of offensive material posted by a third-party. Doe v. America Online, 783 So. 2d at To this end, the second part of Section 230(c) contains an explicit preemption or bar of any civil liability for the distribution of offensive material posted by third-parties: (c) Protection for Good Samaritan blocking and screening of offensive material (2) Civil liability No provider or user of an interactive computer service shall be held liable on account of (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or (B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1). 47 USC 230(c). The title of sub-part 2 Civil Liability confirms that Congress intended to eliminate civil liability for internet service providers. Congress decided to bar the imposition of publisher liability on a service provider for the exercise of its editorial and self-regulatory functions. Id. As such, Section 230(c) bars any and

26 all action seeking to hold an interactive service provider liable as a publisher. Nothing more and nothing less. The Fourth Circuit further explained the purpose of this section in the case of Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997), where the court explained that: Section 230 was enacted, in part, to maintain the robust nature of Internet communication, and accordingly, to keep government interference in the medium to a minimum... The specter of tort liability in an area of such prolific speech would have an obvious chilling effect. It would be impossible for service providers to screen each of their millions of postings for possible problems. Faced with potential liability for each message republished by their services, interactive computer service providers might choose to severely restrict the number and type of messages posted. Congress considered the weight of the speech interests implicated and chose to immunize service providers to avoid any such restrictive effect. (emphasis added). Because of this restriction, the Medytox Parties did not sue Investorhub for any tort-based claim or for the damages caused by the libelous statements, which have been calculated to be $750,000 as of July 2, Instead, the Medytox Parties have filed a two-count complaint seeking declaratory relief and the removal of postings that are offensive and libelous and that the poster has requested to be removed. This is an available remedy. 12 Infra at

27 Investorshub seeks to turn Section 230 on its head and argue that this section allows internet service providers to maintain offensive materials on their websites with impunity. Nothing in Section 230 supports this argument. In rejecting a similar argument the court in Mainstream Loudon noted that [D]efendants cite no authority to suggest that the tort-based immunity to civil liability described by 230 would bar the instant action, which is for declaratory and injunctive relief. 2 F.Supp.2d at 790. The same is true in this case. The same conclusion was reached by the Northern District of Illinois in Doe v. Franco Productions, No. 99 C 7885, 2000 WL (N.D.Ill. June 22, 2000) in concluding that the plaintiff s claims for injunctive relief were not preempted by the Communications Decency Act. 13 There is no statutory authority that can be construed to bar the availability of injunctive relief in this case. While Section 230 contains a sub-part that explicitly bars civil liability, nothing in the text of the statute bars injunctive relief. B. The preemption recognized by Doe v. America Online is limited to tort based claims seeking monetary liability. The Florida Supreme Court held in Doe v. America Online that the Communications Decency Act preempts tort-based causes of action against internet service providers for the distribution of offensive material posted by third- 13 The case was ultimately dismissed as moot because the offending postings had in fact been removed. But, the holding of the court about the availability of injunctive relief to remove a defamatory posting stands

28 parties. But, this preemption does not extend to equitable claims for injunctive relief. In Doe v. America Online, the plaintiff sought to hold an internet service provider liable for negligence. 783 So. 2d 1010, (Fla. 2001). The plaintiff in Doe v. America Online sued for the alleged emotional injuries suffered by her son, John Doe, as a result of the posting in an internet chat room hosted by America Online ( AOL ) of pictures of John Doe, who was then eleven years old, and two other minor males engaging in sexual activity with each other and an adult male. Id. In her six-count complaint, Doe claimed that AOL violated criminal statutes, specifically section and section (2) Florida Statutes (1993). Id. at She alleged that AOL was liable under a negligence per se theory for violating section (2) Florida Statutes by allowing the distribution of an advertisement offering a visual depiction of sexual conduct involving [John Doe] and by allowing the adult in the sexual acts to sell or arrange to sell child pornography, thus aiding in the sale and distribution of child pornography, including obscene images of John Doe. Id. Doe further asserted a separate claim for negligence based on the allegation that AOL knew or should have known that the service was used to market and distribute child pornography; that it should have used reasonable care in its operation; that it breached its duty;

29 and that the damages to John Doe were reasonably foreseeable as a result of AOL s breach. Id. at Doe further claimed that complaints had been communicated to AOL as to the transmission of obscene and unlawful photographs or images and that although AOL reserved the right to terminate without notice the service of any member who did not abide by its Terms of Service and Rules of the Road AOL did not warn this particular user or terminate his access to the service. Id. at The circuit court dismissed the complaint based on the Communications Decency Act, and this Court certified the following question as rephrased by the Florida Supreme Court: Whether section 230 preempts Florida law as to causes of action based in negligence against an Internet Service Provider (ISP) as a distributor of information allegedly in violation of Florida criminal statutes prohibiting the distribution of obscene literature and computer pornography? Doe v. America Online, 783 So. 2d at The Florida Supreme Court answered this question only with respect to tort-based claims seeking liability, stating: Id. We answer the rephrased certified question in the affirmative and find that section 230 does preempt Florida law as to such a cause of action based upon alleged negligence. The Florida Supreme court based its analysis on the explicit language of Section 230(2), which explicitly preempts civil liability and states that:

30 2) Civil liability No provider or user of an interactive computer service shall be held liable on account of (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or (B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1). 47 USC 230(c). In this analysis, the Florida Supreme Court adopted the analysis of the court in Zeran, which focuses on the disincentive created by monetary liability: The scant legislative history reflects that the disincentive Congress specifically had in mind was liability of the sort described in Stratton Oakmont. There, Prodigy, an interactive computer service provider, was held to have published the defamatory statements of a third party in part because Prodigy had voluntarily engaged in some content screening and editing and therefore knew or should have known of the statements. Congress, concerned that such rulings would induce interactive computer services to refrain from editing or blocking content, chose to grant immunity to interactive computer service providers from suits arising from efforts by those providers to screen or block content. Thus, Congress clear objective in passing 230 of the CDA was to encourage the development of technologies, procedures and techniques by which objectionable material could be blocked or deleted either by the interactive computer service provider itself or by the families and schools receiving information via the Internet. If this objective is frustrated by the imposition of distributor liability on Internet providers, then preemption is warranted. Closely examined, distributor liability has just this effect. Id. at (quoting Zeran, 958 F.Supp. at ) (emphasis added)

31 Neither Zeran nor Doe v. America Online discuss the availability of injunctive relief. This distinction is critical because, while there is an explicit clause preempting Civil Liability, no such clause exists with respect to injunctive relief. Unlike the litany of tort-based claims alleged against AOL in Doe v. America Online, the Medytox Parties do not seek to hold Investorshub liable for any tort-based claim. This action has been filed seeking the removal of libelous (per se) statements, nothing more than that. This claim is not preempted. C. Giordano v. Romeo did not hold that the Communications Decency Act preempts Florida law as to equitable claims. The Third District Court of Appeal in its recent decision in Giordano, 76 So.3d at 1102 held that web site operators enjoy complete immunity from any action brought against it as a result of the postings of third party users of its website. It is not clear whether the Third District intended to join the other courts that held that 230(c) affords complete civil liability immunity or whether, as Investorshub suggests, it intended to chart new ground and hold that 230(c) preempts even injunctive relief. The Giordano opinion has a concise analysis section and does not have any indication suggesting that the court was making new law that somehow converted the liability immunity supported by the language of 230(c) into a complete lawsuit immunity. In any event, this Court should not

32 follow Giordano because Giordano is based on an erroneous interpretation of the holding of the Florida Supreme Court in Doe v. America Online. The Giordano court did not engage in the type of thorough preemption analysis required to find that state law is preempted by a federal statute. There is no analysis in Giordano regarding any statutory language requiring the preemption of equitable claims. Instead, the Giordano court concluded that the Florida Supreme Court had decided this issue and that its hands were tied: The Florida Supreme Court has held that the CDA provides absolute immunity to interactive computer services like Xcentric. 76 So.3d at 1101 (emphasis added). Indeed, the Giordano court explicitly stated that it wished the law were different, but that its hands were tied: However much as this Court may disapprove of business practices like those embraced by Xcentric, the law on this issue is clear. Xcentric enjoys complete immunity from any action brought against it as a result of the postings of third party users of its website. Giordano, 76 So.3d at However, as established above, the preemption established in Doe v. America Online is not an absolute preemption. Instead, this preemption is limited to tort-based actions and based on the explicit preemption of civil liability

33 Because there is no equivalent preemption of injunctive relief, Doe v. America Online does not require the dismissal of this action. This Court is not impotent. This Court may properly order the removal of the libelous postings that, despite the requests of the poster, and a determination by a jury that the statements were libelous, Investorshub has stubbornly refused to remove. At a minimum, the Medytox Parties are entitled to their day in court and prove their entitled to injunctive relief. V. CONCLUSION For these reasons, Appellants request that this Court reverse the Circuit Court s Order dismissing the complaint and allow the underlying action for injunctive relief to proceed

34 Respectfully submitted, /s Francisco A. Rodriguez Michael Marsh, Esq. Florida Bar No Francisco A. Rodriguez, Esq. Florida Bar No Naim S. Surgeon, Esq. Florida Bar No AKERMAN LLP SunTrust International Center One S.E. Third Avenue 25th Floor Miami, Florida Telephone: (305) Facsimile: (305) Attorneys for Appellants CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this petition is printed in Times New Roman 14-point font in compliance with the requirements of the Florida Rules of Appellate Procedure. /s Francisco A. Rodriguez Attorney

35 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was e- mailed this 23 rd day of December 2013 to : Deanna K. Shullman, Esq., Thomas & LoCicero PL, 401 SE 12 th Street, Suite 300, Ft. Lauderdale, FL /s Francisco A. Rodriguez Attorney