“Immunity” not accurate description for 47 USC 230 protection

So says a trial court judge from Arizona.

Children of America, Inc. v. Edward Mageson, et al., CV 2007-003720, Superior Court of Maricopa County, Arizona (October 24, 2007)

Ripoffreport.com is a website where individuals can post information about companies, ostensibly to warn other consumers of unscrupulous practices or bad service. Children of America, Inc. sued Ripoffreport.com in Arizona state court for defamation. Ripoffreport.com moved to dismiss, asserting “immunity” under provisions of the Communications Decency Act at 47 U.S.C. 230, which state that “[n]o 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.” The court granted the motion in part and denied it in part.

Many commentators on Section 230 (including myself) have used the term “immunity” to describe the protection that the section provides. But in this case, the court eschewed this characterization, observing that it “tends to cast the applicability of the statute as an all-or-nothing question focused upon the overall character of the Defendant’s computer services.” Instead, the court held that whether Section 230 serves as a defense depends on the particular content at issue.

The plaintiffs alleged that Ripoffreport.com had edited and authored the headlines that accompanied the user generated content, and that certain headlines, standing alone, were actionable as defamatory. Because the court was constrained, at the motion to dismiss stage, to accept the allegations as true, it denied the motion as to the headlines allegedly authored by Ripoffreport.com. The motion was granted as to the content provided by third parties.

Professor Goldman also reports on this case, and points out that the court says “confidently” that Ripoffreport.com cannot face liability “for their actions in promoting the site, organizing the content, making the contents more accessible on search engines or soliciting contributions of content.” He speculates, I think interestingly, that this court was “going out of its way to reject [Judge] Kozinski’s opinion” in the Roommates.com decision.