One week’s time, two takes on Section 230 immunity

In the past week, two important courts, the U.S. District Court for the Northern District of Illinois, and the Supreme Court of California, have issued opinions examining the contours of the immunity provided under the Communications Decency Act at 47 U.S.C. 230. That section provides, among other things, that “[n]o provider or user of any interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Although both cases were defense victories, the two courts gave different treatment to Section 230 in their reading of the statute and in their interpretation of the leading case on point.

CLC v. Craigslist

On November 14, 2006, the Northern District of Illinois issued its decision in the case of CLC v. Craigslist [No. 06-657]. In that case, a Chicago-based nonprofit organization had filed suit against Craigslist, asserting that the popular site should be held liable under the Fair Housing Act for the publication of certain discriminatory online advertisements for apartment rentals.

In a 28 page decision, the court held that Craigslist could not be liable for any discriminatory postings, because to impose such liability “would be to treat Craigslist as if it were the publisher of third-party content, [and] the plain language of Section 230(c) forecloses [the] cause of action.”

But in the process of arriving at that conclusion, Judge St. Eve gave a thorough rundown of Section 230 immunity, taking a close and critical look at what the court called the “fountainhead” of Section 230 immunity, the Fourth Circuit’s decision in Zeran v. America Online, 129 F.3d 327 (4th Cir. 1997).

Despite the wide acceptance that the case has enjoyed over the past decade, Judge St. Eve “respectfully declin[ed] to follow Zeran’s lead.” She identified three problems with its holding. First, Zeran overstated the plain language of the statute when it held that Section 230 creates a federal immunity to any cause of action that would make service providers liable for information originating with third party users of the service. Secondly, the court found Zeran’s holding to be internally inconsistent. Third, the court noted that application of the statute would be problematic, inasmuch as the policy of encouraging providers of online computer services to police for objectionable content is at odds with the immunity that would attach to providers that choose to do nothing to filter objectionable content.

In the end, Judge St. Eve’s observations about Zeran were merely dicta, as the court ultimately held that Craigslist was entitled to the publisher immunity provided for by Section 230. What’s more, the court aptly observed (notwithstanding the rough treatment of Zeran), that plaintiffs in cases against interactive computer services attempting to hold them liable for content provided by others will still have “a tough road [sic.] to hoe.”

More on the CLC v. Craigslist case. [Kevin Thompson]

Barret v. Rosenthal

In a much anticipated ruling, the California Supreme Court handed down its decision on November 20, 2006 in the case of Barret v. Rosenthal. In this case, the state Supreme Court overturned the Court of Appeal, and, in contrast to the court in the Craigslist case, heartily endorsed the Zeran holding. (“We conclude that the Zeran court’s construction of the term ‘publisher’ is sound.”)

At issue in the Barret case was whether the defendant Rosenthal could be liable for defamatory content contained in an article written by another party, which she posted to a message board. The court examined whether, given the circumstances, Rosenthal should be considered a “user” of an interactive computer service as provided for in Section 230(c) and thus subject to immunity. The court answered that question in the affirmative.

The heavy endorsement of Zeran came in rejecting the Court of Appeal’s distinction between distributor and publisher liability. The Court of Appeal (as had the plaintiff in Zeran), reasoned that Section 230 might not foreclose liability for one in Rosenthal’s position as a distributor of defamatory content. But the Supreme Court held that the distinction was one without a difference in the modern online publishing context, and that “distributor” is encompassed within “publisher” as the term is used in Section 230.

More on the Barret v. Rosenthal case. [Eric Goldman]