Quora gets Section 230 victory in the Tenth Circuit

Pro se plaintiff Silver filed suit in federal court in New Mexico against the online question-and-answer website Quora, alleging that statements made by two different individuals concerning his professional services were defamatory. Quora moved to dismiss, arguing that the immunity provisions of the Communications Decency Act, at 47 U.S.C. 230 shielded it from liability arising from content posted by its users. The district court granted the motion to dismiss. Plaintiff sought review with the Tenth Circuit Court of Appeals. On review, the court affirmed the lower court’s dismissal of the case.

Citing to its previous Section 230 precedent, Ben Ezra, Weinstein, & Co. v. Am. Online Inc., 206 F.3d 980 (10th Cir. 2000), the court held that Quora was a provider of “an interactive computer service,” that its actions forming the basis of alleged liability, namely, in hosting the content, were that of a “publisher or speaker,” and that the content giving rise to the alleged liability was from “another information content provider,” i.e., the users who posted the content.

Silver v. Quora, Inc., 2016 WL 6892146 (10th Circuit, November 23, 2016)

Evan_BrownAbout the Author: Evan Brown is a Chicago technology and intellectual property attorney. Call Evan at (630) 362-7237, send email to ebrown [at] internetcases.com, or follow him on Twitter @internetcases. Read Evan’s other blog, UDRP Tracker, for information about domain name disputes.

Yelp not liable for allegedly defamatory customer reviews

In a recent case having an outcome that should surprise no one, the United States Court of Appeals for the Ninth Circuit has affirmed a lower court’s decision that held Yelp immune from liability under the Communications Decency Act (47 U.S.C. 230 – the “CDA”) over customer reviews that were allegedly defamatory.

Plaintiff sued Yelp for violations under RICO and the Washington Consumer Protection Act, as well as libel under Washington law. Yelp moved to dismiss for failure to state to claim upon which relief may be granted. The lower court found that plaintiff had failed to allege any facts that plausibly suggested Yelp was responsible for the content, and therefore dismissed the case. Plaintiffs sought review with the Ninth Circuit. On appeal, the court affirmed.

The appellate court observed that plaintiff’s complaint, which he filed pro se, “pushed the envelope” of creative pleading. The court observed that plaintiff cryptically – “to the point of opacity” – alleged that Yelp was the one that created and developed the offending content. The court declined to open the door to such “artful skirting” of the Communications Decency Act’s safe harbor provision.

The key question before the court was whether the alleged defamatory reviews were provided by Yelp or by another information content provider. CDA immunity does not extend to situations where the web site itself is responsible for the creation or development of the offending content. The immunity protects providers or users of interactive computer services when the claims being made against them seek to treat them as a publisher or speaker of the information provided by another information content provider.

In this case, the court found that a careful reading of plaintiff’s complaint revealed that he never specifically alleged that Yelp created the content of the allegedly defamatory posts. Rather, plaintiff pled that Yelp adopted them from another website and transformed them into its own stylized promotions. The court found that these “threadbare” allegations of Yelp’s fabrication of allegedly defamatory statements were implausible on their face and were insufficient to avoid immunity under the Communications Decency Act. The court was careful to note that CDA immunity does not extend to content created or developed by an interactive computer service. “But the immunity in the CDA is broad enough to require plaintiffs alleging such a theory to state the facts plausibly suggesting the defendant fabricated content under a third party’s identity.”

The plaintiff had alleged in part that Yelp’s rating system and its use by the author of the allegedly defamatory content resulted in the creation or development of information by Yelp. The court rejected this argument, finding that the rating system did “absolutely nothing to enhance the defamatory sting of the message beyond the words offered by the user.” The court further observed that the star rating system was best characterized as a neutral tool operating on voluntary inputs that did not amount to content development or creation.

Finally, the court addressed plaintiff’s cryptic allegations that Yelp should be held liable for republishing the alleged defamatory content as advertisements or promotions on Google. A footnote in the opinion states that plaintiff was not clear whether the alleged republication was anything more than the passive indexing of Yelp reviews by the Google crawler. The decision’s final outcome, however, does not appear to depend on whether Google indexed that content as Yelp passively stood by or whether Yelp affirmatively directed the content to Google. “Nothing in the text of the CDA indicates that immunity turns on how many times an interactive computer service publishes information provided by another information content provider.” In the same way that Yelp would not be liable for posting user generated content on its web site, it would not be liable for disseminating the same content in essentially the same format to a search engine. “Simply put, proliferation and dissemination of content does not equal creation or development of content.”

Kimzey v. Yelp! Inc., — F.3d —, 2016 WL 4729492 (9th Cir. September 12, 2016)

Evan_BrownAbout the Author: Evan Brown is a Chicago technology and intellectual property attorney. Call Evan at (630) 362-7237, send email to ebrown [at] internetcases.com, or follow him on Twitter @internetcases. Read Evan’s other blog, UDRP Tracker, for information about domain name disputes.

Communications Decency Act shields Backpage from liability for violation of federal sex trafficking law

backpage

Three Jane Doe plaintiffs, who alleged they were victims of sex trafficking, filed suit against online classified ad provider Backpage.com (“Backpage”), asserting that Backpage violated the federal Trafficking Victims Protection Reauthorization Act (“TVPRA”) by structuring its website to facilitate sex trafficking and implementing rules and processes designed to actually encourage sex trafficking.

The district court dismissed the TVPRA claims for failure to state a claim, holding that the Communications Decency Act, at 47 U.S.C. §230, provided immunity from the claims. Plaintiffs sought review with the First Circuit. On appeal, the court affirmed the lower court’s dismissal.

Section 230 principally shields website operators from being “treated as the publisher or speaker” of material posted by users of the site. In this case, the court held that plaintiffs’ claims were barred because the TVPRA claims “necessarily require[d] that the defendant be treated as the publisher or speaker of content provide by another.” Since the plaintiffs were trafficked by means of the third party advertisements on Backpage, there was no harm to them but for the content of the postings.

The court rejected plaintiffs’ attempts to characterize Backpage’s actions as “an affirmative course of conduct” distinct from the exercise of the “traditional publishing or editorial functions” of a website owner. The choice of what words or phrases to be displayed on the site, the decision not to reduce misinformation by changing its policies, and the decisions in structuring its website and posting requirements, in the court’s view, were traditional publisher functions entitled to Section 230 protection.

Does v. Backpage.com, LLC, No. 15-1724 (1st Cir., March 14, 2016)

Evan Brown is a Chicago attorney advising enterprises on important aspects of technology law, including software development, technology and content licensing, and general privacy issues.

See also:
Seventh Circuit sides with Backpage in free speech suit against sheriff

Website operator was too involved with development of content to be immune under Section 230

Defendant started up a website to — in her own words — provide a place for others to have a dialogue and post information about their experiences at Plaintiff’s youth drug rehab facilities. Plaintiff found the content of Defendant’s website offensive, and sued for defamation and intentional interference with prospective economic advantage. Defendant filed a motion to strike under California’s Anti-SLAPP law. The court denied the motion.

In denying the Anti-SLAPP motion, the court found, among other things, that Plaintiff had established a probability of prevailing on most of its claims. This chance of prevailing withstood Defendant’s argument that she was shielded from liability by the Communications Decency Act.

This Act 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.” 47 U.S.C. § 230(c)(1).

Defendant acknowledged that her defense was relevant only to the extent that she was alleging that comments by third parties on her website were defamatory.

She quoted Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2008) to assert that “the exclusion of ‘publisher’ liability necessarily precludes liability for exercising the usual prerogative of publishers to choose among proffered material and to edit the material published while retaining its basic form and message.” She argued that she was entitled to Section 230 immunity because she was an exempt publisher — she either simply posted others’ statements or made minor edits to those statements before posting.

The court did not agree with Defendant’s characterization of her publishing activities.

It found that her posts would not lead a visitor to believe that she was quoting third parties. Rather, in the court’s view, Defendant adopted the statements of others and used them to create her comments on the website. She posted her own articles, and summarized the statements of others.

Moreover, Defendant did more than simply post whatever information third parties provided. She elicited statements through two surveys that contained specific questions to gather information about specific issues. The court found this to disqualify Defendant from Section 230 immunity under the holding of Fair Housing Council v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008) (wherein the website operator was not immune under the Communications Decency Act because it created discriminatory questions and choice of answers).

Diamond Ranch Academy, Inc. v. Filer, 2016 WL 633351 (D. Utah, February 17, 2016)

Evan Brown is a Chicago attorney advising enterprises on important aspects of technology law, including software development, technology and content licensing, and general privacy issues.

Newspaper not liable for alleged defamatory letter to editor published online

The Appellate Court of Illinois has sided in favor of a local newspaper in a defamation lawsuit brought against the paper over a reader’s allegedly defamatory letter to the editor. The court held that the Communciations Decency Act (at 47 U.S.C. 230) “absolved” the newspaper of liability over this appearance of third party content on the newspaper’s website.

Plaintiff — a lawyer and self-identified civil rights advocate — sent several letters to local businesses claiming those businesses did not have enough handicapped parking spaces. Instead of merely asking the businesses to create those parking spaces, he demanded each one pay him $5,000 or face a lawsuit.

One local resident thought plaintiff’s demands were greedy and extortionate, and wrote a letter to the editor of the local newspaper covering the story. The newspaper posted the letter online. Both the newspaper and the letter’s author found themselves as defendants in plaintiff’s defamation lawsuit.

The letter-writer settled with plaintiff, but the newspaper stayed in as a defendant and moved to dismiss, arguing that federal law immunized it from liability for content provided by the third party letter-writer.

The lower court dismissed the defamation claim against the newspaper, holding that the Communications Decency Act (at 47 U.S.C. §230) protected the newspaper from liability for the third party letter-writer’s comments posted on the newspaper’s website.

Plaintiff sought review with the Appellate Court of Illinois. On appeal, the court affirmed the dismissal.

The Communications Decency Act (at 47 U.S.C §230(c)(1)) says 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 appellate court found that the leter-writer was another information content provider that placed comments on the newspaper’s website. Therefore, it held that the Communications Decency Act “absolved” the newspaper from responsibility.

Straw v. Streamwood Chamber of Commerce, 2015 IL App (1st) 143094-U (September 29, 2015)

Evan Brown is an attorney in Chicago helping clients manage issues involving technology and new media.

When is it okay to use social media to make fun of people?

There is news from California that discusses a Facebook page called 530 Fatties that was created to collect photos of and poke fun at obese people. It’s a rude project, and sets the context for discussing some intriguing legal and normative issues.

Apparently the site collects photos that are taken in public. One generally doesn’t have a privacy interest in being photographed while in public places. And that seems pretty straightforward if you stop and think about it — you’re in public after all. But should technology change that legal analysis? Mobile devices with good cameras connected to high speed broadband networks make creation, sharing and shaming much easier than it used to be. A population equipped with these means essentially turns all public space into a panopticon. Does that mean the individual should be given more of something-like-privacy when in public? If you think that’s crazy, consider it in light of what Justice Sotomayor wrote in her concurrence in the 2012 case of U.S. v. Jones: “I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables [one] to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.”

Apart from privacy harms, what else is at play here? For the same reasons that mobile cameras + social media jeopardizes traditional privacy assurances, the combination can magnify the emotional harms against a person. The public shaming that modern technology occasions can inflict deeper wounds because of the greater spatial and temporal characteristics of the medium. One can now easily distribute a photo or other content to countless individuals, and since the web means the end of forgetting, that content may be around for much longer than the typical human memory.

Against these concerns are the free speech interests of the speaking parties. In the U.S. especially, it’s hardwired into our sensibilities that each of us has great freedom to speak and otherwise express ourselves. The traditional First Amendment analysis will protect speech — even if it offends — unless there is something truly unlawful about it. For example, there is no free speech right to defame, to distribute obscene materials, or to use “fighting words.” Certain forms of harassment fall into the category of unprotected speech. How should we examine the role that technology plays in moving what would otherwise be playground-like bullying (like calling someone a fatty) to unlawful speech that can subject one to civil or even criminal liability? Is the impact that technology’s use makes even a valid issue to discuss?

Finally, we should examine the responsibility of the intermediaries here. A social media platform generally is going to be protected by the Communications Decency Act at 47 USC 230 from liability for third party content. But we should discuss the roles of the intermediary in terms other than pure legal ones. Many social media platforms are proactive in taking down otherwise lawful content that has the tendency to offend. The pervasiveness of social media underscores the power that these platforms have to shape normative values around what is appropriate behavior among individuals. This power is indeed potentially greater than any legal or governmental power to constrain the generation and distribution of content.

Evan Brown is an attorney in Chicago advising clients on matters dealing with technology, the internet and new media.

No Section 230 immunity for healthcare software provider

Company could be liable for modifications made to its software that provided abbreviated third-party warnings for prescription drugs.

Cases dealing with the Communications Decency Act often involve websites. See, for example, the recent decision from the Sixth Circuit involving thedirty.com, and earlier cases about Roommates.com and Amazon. But this case considered a sort of unique suggested application of Section 230 immunity. The question was whether a provider of software that facilitated the delivery of prescription monographs (including warning information) could claim immunity. It’s unusual for Section 230 to show up in a products liability/personal injury action, but that is how it happened here.

Plaintiff suffered blindness and other injuries allegedly from taking medication she says she would not have taken had it been accompanied with certain warnings. She sued several defendants, including a software company that provided the technology whereby warnings drafted by third parties were provided to pharmacy retailers.

Defendant software company moved to dismiss on several grounds, including immunity under the Communications Decency Act, 47 U.S.C. 230. The trial court denied the motion to dismiss and defendant sought review. On appeal, the court affirmed the denial of the motion to dismiss, holding that Section 230 immunity did not apply.

At the request of the retailer that sold plaintiff her medicine, defendant software company modified its software to provide only abbreviated product warnings. Plaintiff’s claims against defendant arose from that modification.

Defendant argued that Section 230 immunity should protect it because defendant did not play any role in the decisions of the product warning. Instead, defendant was an independent provider of software that distributed drug information to pharmacy customers. Its software enabled pharmacies to access a third party’s database of product warnings. Defendant did not author the warnings but instead, provided the information under an authorization in a data license agreement. Defendant thus functioned as a pass through entity to distribute warnings that were prepared by third parties to retailers selling prescription drugs, and were printed and distributed to the individual customer when a prescription was filled.

The court found unpersuasive defendant’s claim that Section 230 immunized it from liability for providing electronic access to third party warnings. Section 230 provides, in relevant part, that (1) “[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 (2) “[n]o cause of action may be brought and no liability may be imposed under any State or local rule that is inconsistent with this section.”

It held that plaintiff’s claim against defendant did not arise from defendant’s role as the software or service provider that enabled the retailer to access the third-party drafted warnings. Instead, the court found that plaintiff’s claim arose from defendant’s modification of its software to allow the retailer to distribute abbreviated drug monographs that automatically omitted warnings of serious risks. The appellate court agreed with the trial court which found, “this is not a case in which a defendant merely distributed information from a third party author or publisher.” Instead, in the court’s view, defendant’s conduct in modifying the software so that only abbreviated warnings would appear, it participated in creating or modifying the content.

Hardin v. PDX, Inc., 2014 WL 2768863 (Cal. App. 1st June 19, 2014)

Sixth Circuit holds thedirty.com entitled to Section 230 immunity

Plaintiff Jones (a high school teacher and Cincinnati Bengals cheerleader) sued the website thedirty.com and its operator for defamation over a number of third party posts that said mean things about plaintiff. Defendants moved for summary judgment, arguing that the Communications Decency Act — 47 USC § 230(c)(1) — afforded them immunity from liability for the content created by third parties. Articulating a “goofy legal standard,” the district court denied the motion, and the case was tried twice. The first trial ended in a mistrial, and the second time the jury found in favor of plaintiff.

Defendants sought review with the Sixth Circuit Court of Appeals on the issue of whether whether the district court erred in denying defendants’ motion for judgment as a matter of law by holding that the CDA did not bar plaintiff’s state tort claims. On appeal, the court reversed the district court and ordered that judgment as a matter of law be entered in defendants’ favor.

Section 230(c)(1) 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.” At its core, § 230 grants immunity to defendant service providers in lawsuits seeking to hold the service provider liable for its exercise of a publisher’s traditional editorial functions—such as deciding whether to publish, withdraw, postpone or alter content.

But the grant of immunity is not without limits. It applies only to the extent that an interactive computer service provider is not also the information content provider of the content at issue. A defendant is not entitled to protection from claims based on the publication of information if the defendant is responsible, in whole or in part, for the creation or development of the information.

The district court held that “a website owner who intentionally encourages illegal or actionable third-party postings to which he adds his own comments ratifying or adopting the posts becomes a ‘creator’ or ‘developer’ of that content and is not entitled to immunity.” Thus, the district court concluded that “[d]efendants, when they re-published the matters in evidence, had the same duties and liabilities for re-publishing libelous material as the author of such materials.”

The appellate court held that the district court’s test for what constitutes “creation” or “development” was too broad. Instead, the court looked to the Ninth Circuit’s decision in Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008) and adopted the material contribution test from that opinion:

[W]e interpret the term “development” as referring not merely to augmenting the content generally, but to materially contributing to its alleged unlawfulness. In other words, a website helps to develop unlawful content, and thus falls within the exception to section 230, if it contributes materially to the alleged illegality of the conduct.

In the Sixth Circuit’s language, “[A] material contribution to the alleged illegality of the content does not mean merely taking action that is necessary to the display of allegedly illegal content. Rather, it means being responsible for what makes the displayed content allegedly unlawful.”

In this case, the defendants did not author the statements at issue. But they did select the statements for publication. The court held that defendants did not materially contribute to the defamatory content of the statements simply because those posts were selected for publication. Moreover, the website did not require users to post illegal or actionable content as a condition of use. The website’s content submission form simply instructed users generally to submit content. The court found the tool to be neutral (both in orientation and design) as to what third parties submit. Accordingly, the website design did not constitute a material contribution to any defamatory speech that was uploaded.

Jones v. Dirty World, No. 13-5946 (6th Cir. June 16, 2014)

Evan Brown is an attorney in Chicago advising clients on matters dealing with technology, the internet and new media. Contact him.

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.

School district has to stop filtering web content

PFLAG v. Camdenton R–III School Dist., 2012 WL 510877 (W.D.Mo. Feb. 16, 2012)

Several website publishers that provide supportive resources directed at lesbian, gay, bisexual, and transgender (LGBT) youth filed a First Amendment lawsuit against a school district over the district’s use of internet filtering software. Plaintiffs asked the court for an injunction against the district’s alleged practice of preventing students’ access to websites that expressed a positive viewpoint toward LGBT individuals.

The court granted a preliminary injunction. It found that by using URL Blacklist software, the district (despite its assertions to the contrary) engaged in intentional viewpoint discrimination, in violation of the website publishers’ First Amendment rights. The URL Blacklist software — which relied in large part on dmoz.org — classified positive materials about LGBT issues within the software’s “sexuality” filter, and it put LGBT-negative materials under “religion,” which were not blocked.

It found that the plaintiffs had a fair chance of success on the merits of their First Amendment claims. The school district had claimed it was simply trying to comply with a federal law that required the blocking of content harmful to minors. But the court found that the chosen method of filtering was not narrowly tailored to meet that interest.

One may wonder whether Section 230 of the Communications Decency Act could have protected the school district in this lawsuit. After all, 47 U.S.C. 230(c)(2)(A) provides that:

No provider or user of an interactive computer service shall be held liable on account of—

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected. . . . (Emphasis added.)

Section 230 would probably not have been much help, because the plaintiffs were seeking injunctive relief, not money damages. An old case called Mainstream Loudoun v. Bd. of Trustees of Loudoun, 24 F. Supp. 2d 552 (E.D. Va. 1998) tells us that:

[Section] 230 provides immunity from actions for damages; it does not, however, immunize [a] defendant from an action for declaratory and injunctive relief. . . . If Congress had intended the statute to insulate Internet providers from both liability and declaratory and injunctive relief, it would have said so.

One could understand the undesirability of applying Section 230 to protect filtering of this sort even without the Mainstream Loudoun holding. If Section 230 completely immunized government-operated interactive computer service providers, allowing them to engage freely in viewpoint-based filtering, free speech would suffer in obvious ways. And it would be unfortunate to subject Section 230 to this kind of analysis, whereby it would face the severe risk of being unconstitutional as applied.

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