Ex Parte HuffingtonPost.com, Inc.

376 So.3d 432

EX PARTE The HUFFINGTONPOST.COM, INC.

(In re: K.G.S., individually and as guardian and next friend of Baby Doe, a minor child

v.The HuffingtonPost.com, Inc., d/b/a The Huffington Post, et al.)

1200871

Supreme Court of Alabama.

August 12, 2022

Rehearing Denied November 18, 2022

John C. Neiman, Jr., Richard J. Davis, and Brandt P. Hill of Maynard Cooper & Gale, P.C., Birmingham, for petitioner.

Andrew P. Campbell, Yawanna N. McDonald, and Erin G. Godwin of Campbell Partners, LLC, Birmingham; and Joel A. Williams of Friedman Dazzio Zulanus & Bowling, Birmingham, for respondent.

BOLIN, Justice.

The HuffmgtonPost.com, Inc. ("HuffPost"), petitions this Court for a writ of mandamus directing the Jefferson Circuit Court to vacate its order denying HuffPost’s motion for a summary judgment based on the immunity provided in the Communications Decency Act of 1996, 47 U.S.C. § 230, and to enter a summary judgment in its favor pursuant to the immunity provided in 47 U.S.C. § 230. Parties to this case have previously been before this Court. See Facebook, Inc. v. K.G.S., 294 So. 3d 122 (Ala. 2019).

Facts and Procedural History

In K.G.S., this Court set forth the following relevant facts:

"In June 2015, K.G.S. filed a petition in the Mobile Probate Court to adopt Baby Doe, and, shortly thereafter, the birth mother filed a contest to K.G.S.’s petition for adoption. The birth mother subsequently came in contact with Mirah Riben, ‘a well-known critic of the United States’ adoption system’ and a contributor to the Huffington Post[, a Web site operated by HuffPost]. The birth mother shared with Riben her version of the events that led her to contest K.G.S.’s petition to adopt Baby Doe. On July 7, 2015, the Huffington Post, which K.G.S. describes as ‘a prominent media outlet,’ published two online articles about Baby Doe’s adoption that included the full name of the birth mother; identified K.G.S. by her full name as the prospective adoptive mother of Baby Doe; identified Baby Doe by the name the birth mother had given Baby Doe; and included photographs of, Baby Doe. The articles detailed how, after signing a pre-birth consent to allow K.G.S. to adopt Baby Doe, the birth mother notified K.G.S. and K.G.S.’s attorney, before Baby Doe was born, that she had changed her mind about allowing BabyDoe to be adopted; the birth mother, however, never legally withdrew the pre-birth consent to adoption, and K.G.S. obtained custody of and filed a petition to adopt Baby Doe approximately three weeks after Baby Doe was born.

"The day after the articles were published, Claudia¹ D’Arcy, a resident of New York state, created a page on Facebook’s social-media Web site dedicated to reuniting the birth mother and Baby Doe (‘the Facebook, page’), which ‘attached’ the articles published by the Huffington Post. The Facebook page also included K.G.S.’s full name and a ‘number’ of photographs of Baby, Doe, who was then in the custody of K.G.S. … After the creation of the Facebook page, K.G.S. was ‘inundated with appallingly malicious and persistent cyber-bullying.’ In a letter dated July 28, 2015, K.G.S.’s attorney notified Facebook that the Facebook page needed to be removed because it was in violation of the Alabama Adoption Code, § 26-10A-1 et seq., Ala. Code 1975 (‘the Adoption Code’), which, the attorney said, prohibits the disclosure of ‘any matters concerning an adoption, including parties’ actual names.’ Facebook removed the ‘cover photo, but refused to delete the [Facebook] page or otherwise prevent it from disseminating its harmful and false message.’ "

294 So. 3d at 127-28 (footnote omitted).

On July 7, 2017, K.G.S., individually and as the guardian and next friend of Baby Doe, sued HuffPost, Mirah Riben, and a number of other defendants alleging that the defendants had made statements relating to the adoption that subjected them to civil liability and had unlawfully disclosed confidential information about the adoption "to create a sensationalized, salacious, and scandal-driven trial in the court of public opinion to pressure K.G.S. into relinquishing her custody of Baby Doe." Specifically, as the complaint relates to HuffPost, K.G.S. alleged that Riben was "not an independent third-party content provider" for HuffPost; that Riben held "herself out to be an agent/employee of’ HuffPost; and that HuffPost likewise represented that Riben was its "agent/employee," as evidenced by, among other things, "its presentation of her biography on its Web site, the number of pieces attributed to her that it has published, the description of her it includes in many of those pieces, and its willingness to promote and associate itself with her work." K.G.S. further alleged that HuffPost had "assisted [Riben] in creating, developing, and writing" the articles relating to the adoption that were posted on the Huffington Post Web site operated by HuffPost. K.G.S. asserted, against HuffPost claims of invasion of privacy (false light, misappropriation, and making private information public); negligence per se by violating confidentiality provisions of Alabama’s Adoption Code, § 26-10A-1 et seq., Ala. Code 1975; the tort of outrage; negligence; wantonness; negligent hiring and supervision; unjust enrichment; and conspiracy.

On October 20, 2017, HuffPost moved the circuit court to dismiss the claims asserted against it based upon the Communications Decency Act of 1996, 47 U.S.C. § 230, which provides online publishers immunity from, state-law claims arising from content created and developed by other parties. On November 8, 2019, the circuit court entered an order denying the motion to dismiss.

On October 29, 2020, HuffPost moved the circuit court for a summary judgment, again arguing, among other things, that it was entitled to immunity pursuant to § 230 because, it asserted, as the provider of an "interactive computer service," it could not be held liable as the "publisher or speaker" of information provided by Riben, who was an "information content provider."

HuffPost further argued that it could not be considered an "information content provider" with respect to the articles written by Riben, based on K.G.S.’s allegations that an agency relationship existed between it and Riben, because, it asserted, there was no evidence indicating that Riben was its agent or employee. HuffPost argued that the evidence showed that it had assumed no control over Riben, as demonstrated by the "blogger terms and conditions" that Riben had agreed to before posting content to the Huffington Post Web site; that Riben had characterized her relationship with HuffPost as being an "unpaid blogger"; and that no evidence existed indicating that HuffPost had held out Riben as having authority to act on HuffPost’s behalf.

On December 22, 2020, K.G.S. filed a response in opposition to the motion for a summary judgment, arguing that a summary judgment was generally inappropriate on the issue of agency and that substantial evidence existed that created genuine issues of material fact as to whether Riben was acting as HuffPost’s agent when she wrote the articles regarding K.G.S.’s adoption of Baby Doe that were posted on the Huffington Post Web site. K.G.S. argued that, because, in her opinion, an agency relationship existed between HuffPost and Riben, HuffPost, as the principal, "step[ped] into the shoes of Riben" and, thus, must be considered an "information content provider" that is not entitled to immunity under § 230.

On August 13, 2021, the circuit court entered an order granting the motion for a summary judgment as to the invasion-of-privacy (misappropriation) claim but denying the motion as to the remaining claims. The circuit court found that K.G.S. had presented substantial evidence creating genuine issues of material fact as to whether an agency relationship existed between Riben and HuffPost at the time the articles were written. The circuit court also found that HuffPost was not entitled to § 230 immunity because, it said, HuffPost had failed to present sufficient evidence to support any distinction between the "Voices" section of the Huffington Post Web site -- which published "blogs" and contributor-created content -- and the "News" section of the Huffington Post Web site -- which published original HuffPost-created content. The circuit court determined that the failure of the evidence to demonstrate such a distinction was important because both the "Voices" section and the "News" section were published on the Huffington Post Web site, and HuffPost had admitted that it would be liable for content published in the "News" section.

Standard of Review

[1-5] " ‘ "While the general rule is that the denial of a motion for summary judgment is not reviewable, the exception is that the denial of a motion for summary judgment grounded on a claim of immunity is reviewable by petition for writ of mandamus." Ex parte Rizk, 791 So. 2d 911, 912 (Ala. 2000). A writ of mandamus is an extraordinary remedy available only when there is: "(1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court." Ex parte BOC Group, Inc., 823 , So. 2d 1270, 1272 (Ala. 2001).’

"Ex parte Nall, 879 So. 2d 541, 543 (Ala. 2003). Also,

"‘whether review of the denial of a summary-judgment motion is by a petition for a writ of mandamus or by permissive appeal, the appellate court’s standard of review remainsthe same. If there is a genuine issue as to any material fact on the question whether the movant is entitled to immunity, then the moving party is not entitled to a summary judgment. Rule 56, Ala. R. Civ. P. In determining whether there is a [genuine issue of] material fact on the question whether the movant is entitled to immunity, courts, both trial and appellate, must view the record in ,the light most favorable to the nonmoving party, accord

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