Injunction To Remove Defamatory Content Not Enforced Against Non-Party Website
BLOCKOWICZ v. WILLIAMS (December 27, 2010)
David, Mary, and Lisa Blockowicz filed a lawsuit against Joseph Williams and Michelle Ramey. They alleged that the defendants defamed them by posting untruthful statements on several websites. The defendants never responded to the lawsuit. The court entered a default judgment and issued an injunction requiring the defendants to remove the defamatory statements. When the defendants made no attempt to comply with the injunction, the Blockowiczs contacted the operators of each of the websites at issue and asked each to remove the offending statements. Each website complied with the request -- except www.ripoffreport.com ("ROR"). ROR is a website whose purpose is to host comments about bad business practices. Posters must first enter into a contract with the site operator. Among other things, posters agree not to post defamatory remarks, agree to indemnify the operator, and agree that the operator will not remove material even at their request. The Blockowiczs sought to enforce their injunction directly against ROR under Rule 65 as a third party with actual notice who was "in active concert or participation" with a bound party. Chief Judge Holderman (N.D. Ill) denied the request. The Blockowiczs appeal.
In their opinion, Seventh Circuit Judges Cudahy, Flaum, and Wood affirmed. The Court first rejected ROR's personal jurisdiction defense. Although it mentioned it in a footnote in its initial response below, ROR waived the defense when it participated in the briefing and oral argument in the district court. On the merits, the Court noted that Rule 65(d)(2) binds not only the parties but other persons with actual notice who are in "active concert or participation" with the parties. Here, ROR conceded that it had actual notice -- the only issue was its "concert or participation." The Court rejected the Blockowiczs’ bases for that requirement: a) the contract between ROR and the defendants was entered into before the alleged wrongdoing and cannot be the basis for "active concert," and b) ROR’s mere inactivity of not removing the postings cannot be the basis for "active concert." Finally, the Court stated that the Blockowiczs’ argument that the district court should have invoked its inherent authority was waived since it was not raised below. Even if not waived, however, the Court noted that it would have been an inappropriate remedy. The only appropriate avenue for relief is a contempt charge against the original defendants.
Michael Rigney practices in the law offices of GVC Ltd. in Chicago. In this blog, he reports on select