Tag Archives: immunity

How will we handle the legal issues of self-driving cars?

The technology to support self-driving cars is a reality. At this point the challenge is largely economic — it costs around $100,000 to equip a self-driving car with the sensors and other hardware to push it toward autonomy. Another challenge is social. We tie a lot of our identity to our cars and the freedom they afford. This freedom might as well be in our human DNA. There’s no one still living on the planet who knew a time before the automobile.

A third challenge is legal. And it’s much easier to ask the questions than to answer them.

  • How will we set the standards for hardware and software performance?
  • Should we adjust the speed limit?
  • How will we allocate fault when there is an accident?
  • Will the cost of insurance go down if there is less risk on the road?
  • Are we willing to give over so much information when our self-driving cars join the “internet of things”?
  • What protections will we give to automobile makers and the manufacturers of autonomous systems?

On that last question, legislative protection of entire industries is not unprecedented. Gun makers and internet service providers find protection from the unfortunate choices made by the users of their products.

In any event, the self-driving norm is emerging, and is bolstered by new data about how safe and cost-effective it is. There are big savings in terms of dollars and lives. The legal and social issues will have to sort themselves out.

Website operators not liable for third party comments

Spreadbury v. Bitterroot Public Library, 2012 WL 734163 (D. Montana, March 6, 2012)

Plaintiff was upset at some local government officials, and ended up getting arrested for allegedly trespassing at the public library. Local newspapers covered the story, including on their websites. Some online commenters said mean things about plaintiff, so plaintiff sued a whole slew of defendants, including the newspapers (as website operators).

The court threw out the claims over the online comments. It held that the Communications Decency Act at 47 U.S.C. 230 immunized the website operators from liability over the third party content.

Defendant argued that the websites were not protected by Section 230 because they were not “providers of interactive computer services” of the same ilk as AOL and Yahoo. The court soundly rejected that argument. It found that the websites provided a “neutral tool” and offered a “simple generic prompt” for subscribers to comment about articles. The website operators did not develop or select the comments, require or encourage readers to make defamatory statements, or edit comments to make them defamatory.

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.

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.”