IN THE SUPREME COURT OF THE STATE OF GEORGIA

MATTHEW CHAN,

Appellant, DOCKET NO.: S14A1652

LOWER COURT NO.:

-against - SU13DM409

LINDA ELLIS, COURT OF APPEALS

Appellee DOCKET NO.: A14A0014

SUPPLEMENTAL BRIEF OF APPELLANT MATTHEW CHAN

Respectfully Submitted,

Oscar Michelen

Georgia Bar No.: H10048

Cuomo LLC

Attorneys for Appellant

9 East 38th

Street

Third Floor

New York, NY 10016

William J. McKenney

Georgia Bar No.: 494725

McKenney & Froehlich

Attorneys for Appellant

50 Polk Street NW

Marietta, GA 30064

i

TABLE OF CONTENTS

1. Table of Authorities …………………………………………………… ii

2. Preliminary Statement …………………………………………………. 1

3. Statement of Facts ……………………………………………………… 1

4. Argument ……………………………………………………………… 1

POINT I

A RECENT DECISION FROM A FLORIDA APPELLATE COURT

RECOGNIZED THAT AN INJUNCTION AGAINST AN INTERACTIVE SERVICE

PROVIDER BASED ON DEFAMATORY CONDUCT POSTED BY A THIRD PARTY

WAS PREEMPTED BY THE COMMUNICATIONS DECENCY ACT OF 1996

5. Conclusion ……………………………………………………………… 3

6. Certificate of Service …………………………………………………… 4

ii

TABLE OF AUTHORITIES

Cases

Giordano v. Romeo, 76 So.3d 1100 (Fla. 3d DCA 2011) ............................. 2

Medytox Solutions, Inc. v. Investorshub.com, Inc., _____So.3d ______,

2014 WL 6775236 (2014).............................................................................. 1

Statutes

The Communications Decency Act of 1996, 47 U.S.C. § 230 ...................... 2

1

PRELIMINARY STATEMENT

This supplemental brief is submitted by Appellant Matthew Chan

(“Appellant”) to discuss a recent relevant case from a neighboring

jurisdiction that has been decided since the submission of the original briefs

and the oral argument in this appeal.

STATEMENT OF FACTS

The Appellant incorporates by reference the Statement of Facts set

forth in Appellant’s Brief.

ARGUMENT

POINT I

A RECENT DECISION FROM A FLORIDA APPELLATE COURT

RECOGNIZED THAT AN INJUNCTION AGAINST AN

INTERACTIVE SERVICE PROVIDER BASED ON DEFAMATORY

CONDUCT POSTED BY A THIRD PARTY WAS PREEMPTED BY

THE COMMUNICATIONS DECENCY ACT OF 1996

On December 3, 2014, the Fourth District, Florida District Court of

Appeals decided the case of Medytox Solutions, Inc. v. Investorshub.com,

Inc., _____So.3d ______, 2014 WL 6775236 (2014) (a copy is attached).

In Medytox, the plaintiffs sued to force an interactive computer

service provider to remove statements from its website made by a third

party; plaintiffs alleged the remarks defamed the plaintiffs. The appellate

court affirmed the trial court's dismissal of the complaint and denied

2

plaintiffs’ request for an injunction holding that the website operator enjoyed

immunity from such relief under Section 230 of the Communications

Decency Act, 47 U.S.C. § 230 (“CDA”).

The Medytox plaintiffs had argued that the CDA did not preempt an

equitable action under Florida law for the removal of libelous postings. They

contended that any preemption by the CDA was limited to tort-based claims

seeking monetary liability, and that nothing in the CDA suggested that

Congress intended to preempt equitable claims for injunctive relief.

Medytox, at page 1. In rejecting this argument, the court relied on Giordano

v. Romeo, 76 So.3d 1100 (Fla. 3d DCA 2011) which held that Section 230 of

the CDA “creates a federal immunity to any cause of action that would make

service providers liable for information originating with a third-party user of

the service.” Giordano at page 1102.

The Medytox court held that the broad terms of the CDA apply not

only as shield from liability for third-party conduct but also as a shield from

any form of cause of action based on third party conduct stating:

An action to force a website to remove content on the sole basis that the

content is defamatory is necessarily treating the website as a publisher, and

is therefore inconsistent with Section 230. Thus, by the plain language of the

statute, the immunity afforded by Section 230 encompasses the claims for

declaratory and injunctive relief sought in this case.

Medytox, supra, at pages 3-4.

3

In this present action, the court below issued a permanent

injunction against Appellant based in large part on content posted by third

parties. Medytox establishes that Appellant is immune from those claims and

that Appellant was protected by the Communications Decency Act of 1996.

CONCLUSION

For the foregoing reasons, the order below must be reversed.

Respectfully Submitted,

/s/ Oscar Michelen /s/ William J. McKenney

Oscar Michelen William J. McKenney

Georgia Bar No.: H10048 Georgia Bar No.: 494725

Cuomo LLC McKenney & Froehlich

Attorneys for Appellant Attorneys for Appellant

9 East 38th

Street 50 Polk Street NW

Third Floor Marietta, GA 30064

New York, NY 10016 (678) 354-4700

(212) 448-9933 wjm@wjmlaw.org

omichelen@cuomollc.com

4

CERTIFICATE OF SERVICE

This is to certify that in accordance with Georgia Supreme Court Rule

14, I have on this day served this Supplemental Brief and Exhibit before

filing with the Court by mailing a copy of same to the opposing counsel

listed below in a properly addressed envelope with adequate postage to the

address below and by electronically filing the Brief with the Court:

Page, Scrantom, Sprouse, Tucker, Ford

Attorneys for Appellee

1111 Bay Avenue

Third Floor

Columbus, GA 31901

Mr. Timothy B. McCormack

Amicus Filer on Behalf of Appellee

167 Lee Street

Seattle, WA 98109

This 18th

day of December 2014

/s/ Oscar Michelen

Oscar Michelen

Georgia Bar No.: H10048

Cuomo LLC

Attorneys for Appellant

9 East 38th

Street

Third Floor

New York, NY 10016

(212) 448-9933