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.

Video: my appearance on the news talking about isanyoneup.com

Last night I appeared in a piece that aired on the 9 o’clock news here in Chicago, talking about the legal issues surrounding isanyoneup.com. (That site is definitely NSFW and I’m not linking to it because it doesn’t deserve the page rank help.) The site presents some interesting legal questions, like whether and to what extent it is shielded by Section 230 of the Communications Decency Act for the harm that arises from the content it publishes (I don’t think it is shielded completely). The site also engages in some pretty blatant copyright infringement, and does not enjoy safe harbor protection under the Digital Millennium Copyright Act.

Here’s the video:

Amazon and other booksellers off the hook for sale of Obama drug use book

Section 230 of the Communications Decency Act shields Amazon, Barnes & Noble and Books-A-Million from some, but not all claims brought over promotion and sale of scandalous book about presidential candidate.

Parisi v. Sinclair, — F.Supp.2d —, 2011 WL 1206193 (D.D.C. March 31, 2011)

In 2008, Larry Sinclair made the ultra-scandalous claim that he had done drugs and engaged in sexual activity with then-presidential candidate Barack Obama. Daniel Parisi, owner of the infamous Whitehouse.com website, challenged Sinclair to take a polygraph test.

Not satisfied with the attention his outlandish claims had garnered, Sinclair self-published a book detailing his alleged misadventures. The book was available through print-on-demand provider Lightening Source.

Amazon, Barnes & Noble, and Books-A-Million (“BAM”) each offered Sinclair’s book for sale through their respective websites. (Barnes & Noble and BAM did not sell the book at their brick and mortar stores.) Each company’s website promoted the book using the following sentence:

You’ll read how the Obama campaign used internet porn king Dan Parisi and Ph.D. fraud Edward I. Gelb to conduct a rigged polygraph exam in an attempt to make the Sinclair story go away.

Parisi and his Whitehouse Network sued for, among other things, defamation and false light invasion of privacy. BAM moved to dismiss pursuant to Rule 12(b)(6) while Amazon and Barnes & Noble moved for summary judgment. The court granted the booksellers’ motions.

Section 230 applied because booksellers were not information content providers

The booksellers’ primary argument was that Section 230 of the Communications Decency Act shielded them from liability for plaintiffs’ claims concerning the promotional sentence. The court found in defendants’ favor on this point.

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 major issue in this case was whether the online booksellers had provided the information comprising the promotional sentence. The court found that the pleadings (as to BAM) and the evidence (as to Amazon and Barnes & Noble) did not credibly dispute that the booksellers did not create and develop the promotional sentence.

But not so fast, Section 230, on some of those other claims!

The court’s treatment of Section 230 in relation to plaintiffs’ false light claim and the claims relating to the actual sale of the book were even more intriguing.

Plaintiffs argued that their false light claim was essentially a right of publicity claim. And Section 230(e)(2) says that immunity does not apply to claims pertaining to intellectual property. There is some confusion as to whether this exception to immunity applies only to federal intellectual property claims or to both federal and state IP claims. On one hand, Perfect 10, Inc. v. CCBill says that only federal intellectual property claims are excepted from immunity (which would mean that state law IP claims would be barred by Section 230). On the other hand, cases like Atlantic Recording Corp. v. Project Playlist, Doe v. Friendfinder Network and Universal Communication System v. Lycos suggest that both state and federal IP claims should withstand a Section 230 challenge.

In this case, the court indicated that it would have sided with the cases that provide for both federal and state claims making it past Section 230: “I am not inclined to extend the scope of the CDA immunity as far as the Ninth Circuit. . . . ”

But ultimately the court did not need to take sides as to the scope of Section 230(e)(2), as it found the use of plaintiff Parisi’s name fit into the newsworthiness privilege. One cannot successfully assert a misappropriation claim when his name or likeness is used in a newsworthy publication unless the use has “no real relationship” to the subject matter of the publication.

The court also seemed to constrain Section 230 immunity as it related to the online booksellers’ liability for selling the actual book. (Remember, the discussion above, in which the court found immunity to apply, dealt with the promotional sentence.) The court rejected defendants’ arguments that the reasoning of Gentry v. eBay should protect them. In Gentry, eBay was afforded immunity from violation of a warranty statute. But it merely provided the forum for the sale of goods, unlike the online booksellers in this case, which were the distributors of the actual allegedly defamatory book.

Even though Section 230 did not serve to protect BAM, Barnes & Noble and Amazon from liability for defamation arising from sales of the book, the court dismissed the defamation claim because of the lack of a showing that the booksellers acted with actual malice. It was undisputed that the plaintiffs were limited-purpose public figures. Persons with that status must show that the defendant acted with actual malice. That standard was not met here.

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