May 11 2022

Adam Mordecai Secures NH Supreme Court Dismissal of Defamation Claim involving Tweets, Retweets and Section 230

Morrison Mahoney Partner Adam Mordecai recently prevailed in an appeal to the New Hampshire Supreme Court in an interesting case that centered on tweets, retweets and much-debated Section 230 of Title 47 of the Communications Decency Act (CDA), which generally protects providers and users of internet services from liability for information provided online by third parties.

In this case, the appellant, a middle school teacher, challenged a trial court’s dismissal of defamation claims arising out of the use of Twitter by the appellees—several of her former students, including our client—to share allegedly defamatory material. More specifically, the teacher accused a former student of “hacking” her school website page and replacing it with a post suggesting that she was “sexually perverted and desirous of seeking sexual liaisons” with students and parents. Another student took a screenshot of the altered page and tweeted that image over Twitter. Our client was a classmate of the “hacker” and “tweeter” and himself is alleged to have retweeted the original tweet—as did a number of other students. The plaintiff sued the “hacker,” the “tweeter” and the “retweeters” for defamation and infliction of emotional distress. The retweeters moved to dismiss, arguing that Section 230 provided immunity from the plaintiff’s defamation claim and derivative causes of action. The trial court agreed and dismissed all claims against the “retweeter” group.

On appeal, the plaintiff argued primarily that the retweeters should not be considered “users” of an interactive computer service entitled to immunity under Section 230, which provides that “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.” She argued that Section 230 was intended to protect “primary access points” like libraries, colleges, computer cafes and other places where people were often accessing the internet with Section 230 was adopted, and not individual users.

The New Hampshire Supreme Court disagreed, however. It held that the retweeter defendants were “users of an interactive computer service” entitled to the immunity provided by Section 230, and it upheld and affirmed the trial court’s dismissal of the claims against our client.

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