No CDA immunity for letting co-defendant use computer to post material

Capital Corp. Merchant Banking, Inc. v. Corporate Colocation, Inc., No. 07-1626, 2008 WL 4058014 (M.D.Fla., August 27, 2008)

Professor Goldman points us to a recent decision in a case where the plaintiff alleged that one of the individual defendants “allowed [a co-defendant] to use ‘a computer registered in her name’ to make . . . defamatory statements.” The defendants filed a 12(b)(6) motion to dismiss, arguing that the Communications Decency Act (CDA) at 47 U.S.C. 230 barred the claims. The court denied the motion.

With little analysis, the court cited to the 9th Circuit’s Roommates.com decision, holding that “[t]he CDA provides immunity for the removal of content, not the creation of the content.” While that is not an incorrect statement, it is troublesome in this context inasmuch as it tells half the story.

Yes, 47 U.S.C. 230(c) does provide protection to “Good Samaritan” operators of interactive computer services who remove offensive content. The user whose content has been removed would not have a cause of action against the operator who took down the content in good faith. See 47 U.S.C. 230(c)(2).

But 47 U.S.C. 230(c)(1) provides that no provider of an interactive computer service shall be treated as a publisher or speaker of any information provided by a third party. Courts have usually held that when a defamation plaintiff brings a claim against the operator of the computer service used to post defamatory content (who was not responsible for creating the content), such a claim is barred, as the plaintiff would not be able to satisfy the publication element of a defamation prima facie case.

Maybe in this situation the court found that the defendant who let a co-defendant use her computer did not meet the definition of a service provider as contemplated by the CDA. But it would have been nice to see that analysis written down, rather than having to merely surmise or speculate.