Has Section 230 immunity passed its apex?

Barnes v. Yahoo!, Inc., No. 05-36189, 9th Cir. May 7, 2009

Yesterday’s decision from the Ninth Circuit in Barnes v. Yahoo is kind of a big deal. Jeff Neuberger observes that Section 230 took a hit. Characterizing it differently, Thomas O’Toole called it a nice win for online publishers. I’m thinking that the halcyon days of robust Section 230 immunity may be on the wane.

Barnes alleged that her ex-boyfriend did some pretty rotten things using various Yahoo services. Since I think my mom reads my blog I won’t elaborate on Prince Charming’s shenanigans. But if the allegations are true, one can understand why Barnes would be mad. Simply stated, they involved nude photos and men looking to cavort showing up where Barnes worked.

Barnes contacted Yahoo and asked it to take the offending content down. Folks there said they would. Months later, when the content remained online, Barnes sued Yahoo for negligent undertaking and promissory estoppel.

The district court dismissed Barnes’ claims, holding that 47 U.S.C. 230 protected Yahoo because, according to that section, “no 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.”

It’s no big surprise that the appeallate court affirmed the lower court on the question of negligent undertaking. Barnes’ claim was that Yahoo was negligent in undertaking to remove the content. Since the removal of content is one of the quintessential functions of a publisher, it would contravene Section 230 to hold Yahoo liable for that.

The more intriguing part of the case comes from the court’s reversal on the question of promissory estoppel. Yahoo’s breach of an alleged promise to remove the content was of a different nature than the act of removing the content. “Promising is different because it is not synonymous with the performance of the action promised.” Liability arising from failing to live up to that promise was outside the scope of Section 230. In other words, pursuing Yahoo for breaking its promise to take down the offending content did not treat it as the publisher or speaker of that content.

This holding seems to be another chip away at Section 230 immunity. Smart intermediaries (e.g. website operators) are likely to communicate less now with individuals who feel aggrieved, because the intermediary may fear that anything it says could be construed as a breakable promise putting it at risk for liability.

Made in onto ABC World News Tonight

The Sheriff of Cook County (that means Chicago) has sued Craigslist claiming that the site is a public nuisance. [Here’s the Complaint. ABC News interviewed me this afternoon to get my comments on the case. I enjoyed talking about it for about 20 minutes on camera. As these things usually go, most of my flashes of insight comments ended up on the proverbial cutting room floor, but one complete sentence made it onto ABC World News tonight. Click here to see the segment.

Click for video
(Click for video)

Professor Goldman has this rundown of the case.

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.

Google doesn’t have to pay $50 billion to defamation plaintiff

Steele v. Mengelkoch, 2008 WL 2966529 (Minn.App. August 5, 2008).

Pro se plaintiff Steele sued Google in Minnesota state court for $50 billion because Google indexed an article which Steele though defamed him. Google moved to dismiss the complaint for failure to state a claim and the lower court granted the motion. Steele sought review with the Court of Appeals of Minnesota. On appeal, the court affirmed.

The court held that 47 U.S.C. §230, by its plain language, creates a federal immunity to any cause of action that would make Google – as the provider of an interactive computer service – liable for information originating with a third party user of the service.

In the court’s language, §230(c)(1) “precludes courts from entertaining claims that would place a computer service provider in a publisher’s role.” So a lawsuit seeking to place responsibility on Google to exercise traditional roles of the publisher – e.g., deciding to publish, withdraw, postpone or alter content – was not legally sufficient to survive.

Other coverage:
Techdirt
Professor Goldman

A look back at Doe v. MySpace

Court of Appeals upholds Section 230 immunity for MySpace. Social networking provider not subject to suit for negligence for failing to implement technological measures to weed out underage users.

Doe v. MySpace, Inc., — F.3d —-, 2008 WL 2068064 (5th Cir. May 16, 2008).

I’ve been pretty busy the past few weeks with work and speaking engagements, and I also slipped in a little vacation awhile back. So I’m doing some catching up, looking over a number of interesting decisions from the past few weeks. While I was on the beach in Florida with my family, the Fifth Circuit issued this intriguing opinion in a case that has gotten quite a bit of publicity since it was filed back in 2006. Here’s the story.

When Julie Doe was 13, she lied about her age and set up a profile on MySpace. A year later, she met — first online, then offline — a 19 year-old named Solis. That Solis allegedly assaulted Doe.

MySpace Section 230 graphic

Julie and her mother filed suit against MySpace alleging, among other things, negligence. The plaintiffs claimed that MySpace should have done more to prevent Doe and Solis from meeting.

The case bounced around Texas and New York state court, then to New York federal court, then back to Texas where it ended up in the U.S. District Court for the Western District of Texas. Last year, the district court dismissed the case, holding that the Communications Decency Act at 47 U.S.C. 230 immunized MySpace from liability.

The Does sought review with the Fifth Circuit. On appeal, the court affirmed.

Section 230 provides, in relevant part, 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 Does had argued that Section 230 should not bar the negligence claim, as the allegations dealt not with MySpace’s publication of information, but with the site’s failure to implement appropriate security.

Agreeing with the lower court, the appellate court rejected what it called disingenuous artful pleading by the plaintiffs. It found that the allegations were “merely another way of claiming that MySpace was liable for publishing the communications and they [spoke] to MySpace’s role as a publisher of online third-party-generated content.”

No CDA immunity for adult-oriented Web site in right of publicity case

Doe v. Friendfinder Network, Inc., — F.Supp.2d —-, No. 07-286, 2008 WL 803947 (D.N.H. March 28, 2008)

Plaintiff Doe learned that a nude image and some biographical information about herself had been used to set up a bogus profile on the adult-oriented personal-ad Web site Adult Friend Finder. She sued the operator of the site alleging a number of claims, like defamation and intentional infliction of emotional distress. She also alleged misappropriation of her right of publicity under state law, and false designation of origin and false advertising under the federal Lanham Act.

Adult Friend Finder moved to dismiss the claims, arguing that the Communications Decency Act (“CDA”) at 47 U.S.C. 230 immunized the site from liability for the information provided by someone other than the site operator. The court agreed with Adult Friend Finder as to the majority of the claims, holding that the claims were barred by the CDA where the plaintiff sought to impose liability on the site as the publisher or speaker of the information.

But the court held that the CDA did not immunize Adult Friend Finder from Doe’s state law claims for violation of the right of publicity, or for violation of the federal Lanham Act.

Section 230(e)(2) provides that “[n]othing in this section shall be construed to limit or expand any law pertaining to intellectual property.” You may recall that last year the Ninth Circuit [in Perfect 10, Inc. v. CC Bill, LLC, 488 F.3d 1102 (9th Cir. 2007)] held that 230(e)(2)’s restriction on immunity only applied to federal claims involving intellectual property (leaving state law claims barred).

The court in this case disagreed with the Ninth Circuit on this point, looking at the plain language of the statute and finding no meaningful distinction between state and federal causes of action involving intellectual property, especially given the presence of the word “any” when decribing “law[s] pertaining to intellectual property.”

Complaint amended in AutoAdmit defamation lawsuit

The saga surrounding the defamation lawsuit filed by a couple of Yale law students against some anonymous posters to the AutoAdmit forum board keeps brewing. According to this article from the Yale Daily News, the plaintiffs, two female law students, have amended their complaint against the 38 John Doe defendants. This time around, they omitted from the list of defendants a former employee of AutoAdmit, who was a defendant in the original complaint. Looks like the plaintiffs have considered the effect of 47 USC 230 on their chances of success against the provider of the forum board service.

“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.

SexSearch.com afforded Section 230 protection in a case with an unconventional plaintiff

Doe v. SexSearch.com, No. 07-604, — F.Supp. —-, (N.D. Ohio August 22, 2007)

Hat tip to Michael Erdman of the new Online Liability Blog for his comprehensive post on this week’s decision by the U.S. District Court for the Northern District of Ohio in an interesting case involving Section 230 immunity.

The facts of the case are pretty wacky, and the alignment of the parties is not what you’d expect. Anonymous plaintiff Doe sued SexSearch.com for, among other things, breach of contract, fraud and breach of warranty after he was arrested for illegal sexual conduct with a minor he met through the SexSearch.com website. The girl’s profile stated she was 18 when in reality she was only 14.

SexSearch filed a 12(b)(6) motion to dismiss, asserting immunity under the Communications Decency Act at 47 U.S.C. § 230. Section 230 provides 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,” and that “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” The court granted the motion to dismiss.

There are a couple of particularly interesting points in the court’s decision, although the outcome is not surprising, considering the generally favorable treatment Section 230 has gotten over the past decade or so, starting with the 4th Circuit’s decision in Zeran v. America Online, Inc., 129 F.3d 327, 330-31 (4th Cir.1997).

In this case, the plaintiff argued that SexSearch, and not the author of the profile, was the actual information content provider because SexSearch “reserved the right, and [did] in fact, modify the content of profiles when they [did] not meet the profile guidelines and as such they [were] responsible in whole or part for the creation or development of the information.” The court rejected this argument, because while SexSearch may have reserved the right to modify the content, the complaint did not allege that SexSearch modified the content in question.

Another interesting point in the case was the court’s confirmation that Section 230 applies not only to tort claims, but other causes of action as well. The plaintiff had argued that Section 230 immunized service providers only from causes of action for defamation. Citing to a number of cases, however, in which Section 230 had immunized defendants for causes of action such as breach of contract, negligence and violation of state commercial e-mail laws, the court looked to the plain language of the statute, which provides that “no cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.

Case appears below (or click through if it doesn’t show up in the RSS feed):

A look back at the Fair Housing Council v. Roommates.com decision

Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, No. 04-56916 (9th Cir. May 15, 2007)

Ed. note: Funny thing about the blogosphere — news gets old fast. The case of Fair Housing Council v. Roommates.com was released more than 2 weeks ago, and I’m just getting around to reviewing it. When the opinion came down, it got lots of attention [see, e.g., here and here]. I hope you won’t mind this belated review of an important decision.

The Fair Housing Councils of San Fernando Valley and San Diego, California sued Roommates.com, alleging that the the popular roommate matching service violated the federal Fair Housing Act and a number of state laws. The plaintiffs moved for summary judgment at the trial court level, arguing that Roommates.com is liable for making and publishing “discriminatory statements that indicate preferences based on race, religion, national origin, gender, familial status, age, sexual orientation, source of income, and disability, all in violation of fair housing laws.”

Both parties moved for summary judgment, and the trial court dismissed the case, holding that the Communications Decency Act [at 47 U.S.C. 230] provided Roommates.com with immunity from liability. The plaintiffs sought review with the Ninth Circuit. On appeal, the court reversed most of the holding as to Section 230 immunity.

At issue was Roommates.com’s series of online questionnaires that new members filled out when signing up for the service. Individuals signing up for the service were required to provide a variety of information, including whether they would be willing to live with members of the opposite sex, or with gay men or lesbians.

Roommates.com argued that it could not be held liable for violation of the Fair Housing Act, as the website was merely an interactive computer service allowing access to information provided by third party information content providers, and therefore Section 230 immunity should apply. The Ninth Circuit disagreed, however, providing two different reasons why immunity was inapplicable.

First, the court differentiated the case from Carafano v. Metrosplash, 339 F.3d 1119 (9th Cir. 2003). In Carafano, the Ninth Circuit upheld Section 230 immunity for a dating website accused of publishing defamatory material provided in response to online questionnaires used to generate user profiles. The present case differed from Carafano inasmuch as the interactive questionnaires in that case did not specifically solicit tortious content. It was the user of the site which provided the objectionable content. In this case, however, the Roommates.com site provided the mechanism and framework to solicit tortious content, i.e., content that would indicate a preference for a roommate which could potentially violate the Fair Housing Act.

Aside: Judge Kozinski uses a hypothetical involving a website called “harrassthem.com” to illustrate the above point. After the decision came down, Joe Gratz grabbed that domain name. He’s asking for suggestions about how the domain might be used.

Despite the differences between Roommates.com and the website in Carafano, the court found another, independent basis for determining that Section 230 did not apply. The mechanism by which users could search available listings made Roommates.com an information content provider itself, and thereby outside the scope of Section 230 immunity. For example, users could search for listings matching certain criteria (e.g., will only live with straight people). Results for searches would exclude listings that did not match the searcher’s criteria. The court held that this exclusion of information in the search results added a layer of information in addition to the information provided by the site’s members. Accordingly, by adding the layer of information, Roommates.com became an information content provider, and outside Section 230 immunity which only protects providers that distribute information provided by third parties.

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