Scope of Communications Decency Act Section 230 Immunity

Negligence

A number of recent cases have reinforced §230 immunity, despite plaintiffs’ repeated attempts to plead creatively around the statute. Doe v. MySpace, Inc. (5th Cir 2008) 528 F3d 413, is one of several cases involving underage girls who were sexually assaulted by men with whom they communicated on social networking websites. Plaintiffs argued that MySpace was negligent in failing to police its postings, but the court dismissed this argument as simply another way of holding MySpace liable as a publisher of content generated by its users. The court dismissed the failure-to-police argument as a thinly disguised claim based on the defendant’s editorial practices, which were precisely what §230 immunizes.

Negligence versus Promissory Estoppel

In Barnes v Yahoo!, Inc. (9th Cir 2009) 565 F3d 560, amended by 570 F3d 1096, the Ninth Circuit re-emphasized the point that §230 preempts negligence claims. In Barnes, the defendant failed to remove unauthorized nude photographs of the plaintiff and a fraudulent profile in which the plaintiff’s former boyfriend impersonated the plaintiff after the plaintiff had requested removal. Although the plaintiff’s negligence claim was barred by §230, the court held that the plaintiff could recover under a promissory estoppel theory because the host website had promised to remove the offending content. Thus, if a host service promises to remove offending content but does not do so, §230 will not bar a claim for promissory estoppel.

Injunctions (Federal Rule of Civil Procedure 65)

An interesting question arises when a website that publishes user content is ordered by injunction to take down certain content. Is the site required to comply with the injunction, or may the site ignore it and claim CDA §230 immunity? Although the court in Blockowicz v Williams (ND Ill, Dec 21, 2009, No. 09-C-3955) 2009 US Dist Lexis 118599, did not answer this question directly, it did not require the website (ripoffreport.com) to comply with the injunction. In Blockowicz, a user posted allegedly defamatory remarks concerning the plaintiff on a number of websites, the plaintiff obtained a declaratory judgment, and all sites except ripoffreport.com removed the content. The court concluded that ripoffreport.com had only a “tenuous” relationship with the poster and could not be termed “in active concert or participation with” the enjoined party under Fed R Civ P 65(d)(2)(C). 2009 US Dist Lexis 118599, *5.

Preemption of State Intellectual Property Law Claims

Arguably, if state intellectual property law claims—such as a claim of violation of the right of publicity—are not preempted by §230, conflicts between federal and state law could chill experimentation and the creation of new media services. Yet the language of §230 strongly supports the conclusion that state intellectual property law claims should not be preempted. Section 230(e)(2) reads, “[n]othing in this section shall be construed to limit or expand any law pertaining to . . . intellectual property,” without limiting preemption to “federal” intellectual property only.

Doe v Friendfinder Network, Inc (D NH 2008) 540 F Supp 2d 288 is one of many §230 cases involving an adult dating service’s online publication of a false user-supplied profile. Friendfinder, however, contained two new allegations: (1) although the site removed the false profile, it replaced the removed profile with a message that read, “Sorry, this member has removed his/her profile,” which, plaintiff alleged, meant that at one point she had authorized the profile; and (2) portions of the false profile were reused by the defendant as advertisements on third party websites. 540 F Supp 2d at 292. The court quickly dismissed the plaintiff’s tort claims on the grounds of §230, despite the dating service’s affirmative reposting and despite the dropdown menus that it provided to users to build profiles. However, the court denied preemption of the plaintiff’s right of publicity claims and any other state intellectual property law claims.

NOTE The Friendfinder decision directly conflicts with the Ninth Circuit’s ruling in Perfect 10, Inc. v CCBill LLC (9th Cir 2004) 488 F3d 1102, which held that §230 does not preempt federal intellectual property claims but does preempt state claims, such as trade secret misappropriation. The Friendfinder court makes a strong interpretative argument that the word “federal” should not be read into §230(e)(2), but it is not binding precedent within the Ninth Circuit.

Illegal Content: The Roommates.com Case

As discussed above, a number of cases have explored the extent to which a service provider retains §230 immunity when it involves itself in the content of user submissions. The Ninth Circuit’s decision in Fair Housing Council of San Fernando Valley v Roommates.com LLC (9th Cir 2008) 521 F3d 1157, succeeds in highlighting the confusion. In that case, the Ninth Circuit ruled that courts should err in favor of the service provider if faced with a grey area, but the criteria used by the court to find Roommates.com liable for its search functionality were not well defined.

In Roommates.com, users were required to provide information about their gender, sexual orientation, and whether they would bring children into a household, as well as their preference for roommates based on the same criteria. The website also provided a fill-in “Additional Comments” section for users. 521 F3d at 1161. The site published the information provided by users and used it to connect users with compatible roommate preferences. The Ninth Circuit held that Roommates.com did not qualify for §230 immunity because of (1) the specific questions it posed to users, (2) the users’ profile answers using Roomates’ pull-down menus, and (3) its search and e-mail system which displayed and suppressed results based on unlawful criteria. Roomates did, however, receive §230 immunity for its open-ended “Additional Comments” field, despite any unlawful content submitted by users in that field. 521 F3d at 1174.

The Roommates.com opinion attempted to narrow the defendant’s offending behavior by reinforcing that pull-down menus are not inherently problematic. The court stated that “[a] dating website that requires users to enter their sex, race, religion and marital status through drop-down menus, and that provides means for users to search along the same lines, retains its CDA immunity insofar as it does not contribute to any alleged illegality.” 521 F3d at 1169. The court also stated: “The message to website operators is clear: If you don’t encourage illegal content, or design your website to require users to input illegal content, you will be immune.” 521 F3d at 1175. The problem is that ambiguities exist in the opinion regarding what actions by a website would “encourage illegal content,” and uncertainty can breed caution among websites that wish to provide advanced, structured searches of user-generated content.

Contrary to some expectations, the Roommates.com decision has not spawned more cases narrowing §230 immunity. Only a few cases in which online hosting services lost cite Roommates.com, such as the Tenth Circuit’s decision in FTC v Accusearch Inc. (10th Cir 2009) 570 F3d 1187. In Accusearch, the court held that an online seller of illegal telephone records did not qualify for immunity, even though it received the records from a third party rather than obtaining the records itself. Indeed, the Ninth Circuit’s effort in Roommates.com to limit its findings to services that “encourage illegal content” has resulted in more citations of the case in favor of defendants. See, e.g., Nemet Chevrolet, Ltd. v Consumeraffairs.com (4th Cir 2009) 591 F3d 250.

Marketing Representations

Mazur v eBay Inc. (ND Cal, Mar. 3,  2008, No. C 07-03967) 2008 US Dist Lexis 16561, explores the boundaries of liability for marketing representations. In Mazur, the court held that eBay was entitled to §230 immunity for (1) information provided by third party vendors, (2) failing to prevent a seller’s illegal conduct, and (3) asserting that certain auction houses were screened. The court found, however, that the following three statements were not immunized: (1) that live bidding was “safe,” (2) that bidding was conducted against “floor bidders,” and (3) that bidding involved international auction houses. Mazur illustrates how a combination of representations by the service provider and user-generated content—which was distinguished by the court as not merely a regurgitation of the user’s content—may result in liability. The decision has been criticized for its failure to immunize service providers for marketing representations. As a result, the case may open up a significant opportunity for plaintiffs to bypass §230.

Benefits of CDA §230 Immunity

The case law solidifies the broad immunity provided by CDA §230. Although plaintiffs have been relentless in attempting to plead around CDA §230 immunity, and some boundaries of §230 remain to be defined, courts have resisted imposing liability on intermediaries for content that is truly created by a third party independently of the host service. Section 230 immunity continues to provide critical protection for the Internet’s middlemen.