2020 July 31

Trout Point Lodge Limited v. Automattic, Inc., 2020 NSSC 212

On a motion for summary judgment, the Nova Scotia Supreme Court dismissed a claim by the plaintiffs that the defendant blog web-hosting service breached a binding contract to remove a disputed blog from WordPress.com.  The contract claim was based on an exchange of two emails between the plaintiffs and Automattic in August, 2011.    The plaintiffs’ email of August 18, 2011 asked Automattic to remove the “offensive material” and indicated failure to do so “may be sufficient” to add Automattic as a defendant.  The response email by Automattic on August 20, 2011 stated: “You must provide a court order finding the content to be defamatory and specifically requesting its removal” and noted that WordPress.com is an Internet Service Provider “protected by section 230(c) of the U.S. Communications Decency Act which states that Internet service providers are not held liable for content (such as allegedly defamatory, offensive, inaccurate, or harassing content…”   The Court noted that Automattic did not agree to remove the disputed blog if the plaintiffs did not add Automattic as a defendant to the proceeding.  “Automattic was  simply explaining to the Plaintiffs what steps they had to take in order to request the removal of the content from its servers.”  “In the present case, the emails, viewed objectively, do not indicate there was a mutual intention to create legal relations.”