Section 230 – Page 5 – Attorney Evan Brown

May 31, 2016 Section 230, Social Media

Immunity denied for website that failed to warn of dangerous activity

Jane Doe sued Internet Brands, the owner of the website Model Mayhem, for negligence after she was lured into a trap by two criminals who used the site to target victims. Plaintiff asked the court to hold Internet Brands liable for failing to warn users about the known threat posed by the criminals. The district court dismissed the case, finding the claim barred by the provision of the Communications Decency Act (CDA) found at 47 U.S.C. 230. However, the Ninth Circuit reversed that decision, holding that the CDA did not shield Internet Brands from liability for failing to warn.

Plaintiff, an aspiring model, joined Model Mayhem, a networking site for modeling professionals. In 2011, Plaintiff was contacted by individuals associated with the defendant, who posed as talent scouts and convinced her to travel to Florida for an audition. Once there, Plaintiff was drugged, raped, and recorded for pornography. The lawsuit revealed that Internet Brands had known since 2010 about these criminals and their use of the site to target victims but did not warn users.

Plaintiff argued that Internet Brands had a duty to warn users like her about the danger. Defendant argued that the CDA, which protects websites from liability as “publishers” of third-party content, barred the claim. Defendant claimed that issuing a warning would have effectively treated it as a publisher of user-generated content, a role protected under the CDA.

The court disagreed. It found that plaintiff’s claim did not depend on treating defendant as a publisher or speaker of third-party content. Instead, the claim arose from defendant’s alleged failure to act on its knowledge of the rapists’ activities. The court explained that the CDA does not provide blanket immunity for websites, especially when the obligation to warn does not require altering or removing user-generated content.

The Ninth Circuit reversed the district court’s dismissal and sent the case back for further proceedings, stating that the CDA did not block Plaintiff’s negligence claim.

Three reasons why this case matters:

Defining CDA Immunity: This decision clarified that the CDA does not protect websites from all legal claims, especially those unrelated to user-generated content.
Website Accountability: The case demonstrates that platforms can be held liable for failing to protect users from known risks.
Victim Protection: It shows that courts may balance user safety with the legal protections for online platforms.

Doe v. Internet Brands, Inc., 824 F.3d 846 (9th Cir., May 31, 2016)

March 24, 2016 Privacy, Section 230

Facebook’s Terms of Service protect it from liability for offensive fake account

Someone set up a bogus Facebook account and posted, without consent, images and video of Plaintiff engaged in a lewd act. Facebook finally deleted the account, but not until two days had passed and Plaintiff had threatened legal action.

Plaintiff sued anyway, alleging, among other things, intrusion upon seclusion, public disclosure of private facts, and infliction of emotional distress. In his complaint, Plaintiff emphasized language from Facebook’s Terms of Service that prohibited users from posting content or taking any action that “infringes or violates someone else’s rights or otherwise would violate the law.”

Facebook moved to dismiss the claims, making two arguments: (1) that the claims contradicted Facebook’s Terms of Service, and (2) that the claims were barred by the Communications Decency Act at 47 U.S.C. 230. The court granted the motion to dismiss.

It looked to the following provision from Facebook’s Terms of Service:

Although we provide rules for user conduct, we do not control or direct users’ actions on Facebook and are not responsible for the content or information users transmit or share on Facebook. We are not responsible for any offensive, inappropriate, obscene, unlawful or otherwise objectionable content or information you may encounter on Facebook. We are not responsible for the conduct, whether online or offline, of any user of Facebook.

The court also examined the following language from the Terms of Service:

We try to keep Facebook up, bug-free, and safe, but you use it at your own risk. We are providing Facebook as is without any express or implied warranties including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement. We do not guarantee that Facebook will always be safe, secure or error-free or that Facebook will always function without disruptions, delays or imperfections. Facebook is not responsible for the actions, content, information, or data of third parties, and you release us, our directors, officers, employees, and agents from any claims and damages, known and unknown, arising out of or in any way connected with any claims you have against any such third parties.

The court found that by looking to the Terms of Service to support his claims against Facebook, Plaintiff could not likewise disavow those portions of the Terms of Service which did not support his case. Because the Terms of Service said, among other things, that Facebook was not responsible for the content of what its users post, and that the a user uses the service as his or her on risk, the court could not place the responsibility onto Facebook for the offensive content.

Moreover, the court held that the Communications Decency Act shielded Facebook from liability. The CDA immunizes providers of interactive computer services against liability arising from content created by third parties. The court found that Facebook was an interactive computer service as contemplated under the CDA, the information for which Plaintiff sought to hold Facebook liable was information provided by another information content provider, and the complaint sought to hold Facebook as the publisher or speaker of that information.

Caraccioli v. Facebook, 2016 WL 859863 (N.D. Cal., March 7, 2016)

About the Author: 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.

March 15, 2016 Section 230

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.

February 28, 2016 Section 230

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.

October 6, 2015 Defamation, Section 230

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.

September 5, 2015 Computer Crime, Section 230

Washington Supreme Court keeps victims’ lawsuit against Backpage.com moving forward

Plaintiffs – three minor girls – alleged that they were subjected to multiple instances of rape by adults who contacted them through advertisements posted on Backpage.com. Plaintiffs sued the website and its owner alleging various claims.

Defendants moved to dismiss the claims, arguing that Section 230 (47 U.S.C. § 230) shielded the website from liability arising from content posted by the site’s users. The lower court denied the motion to dismiss, finding that the site’s involvement went beyond passive hosting. Plaintiffs had claimed the website’s advertisement posting rules were intentionally designed to aid in evading law enforcement scrutiny, thereby facilitating the illegal trafficking and exploitation of minors. Defendants sought review with the court of appeals, which certified the question to the Washington state Supreme Court.

The Supreme Court affirmed the denial of the motion to dismiss. The court emphasized the necessity for further investigation into the website’s practices to determine the extent of its involvement in the alleged illegal activities. It found that plaintiffs’ allegations suggested that Backpage had specific content requirements and posting rules that, while outwardly appearing to comply with legal standards by prohibiting explicit content, were allegedly crafted in such a manner as to facilitate the concealment of illegal activities, including the sexual exploitation of minors.

J.S. v. Village Voice Media Holdings, LLC, 359 P.3d 714 (Wash., September 3, 2015)

March 1, 2015 Section 230

Third Circuit upholds Communications Decency Act immunity for Google, Yahoo and others

Plaintiff filed suit against Google, Yahoo and some unknown (John Doe) defendants for defamation, tortious interference with contract, and negligent and intentional infliction of emotional distress based on various online postings. The district court dismissed the complaint, holding that the Communications Decency Act (47 U.S.C. §230) provided immunity to defendants over the third party content giving rise to the complaint. 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.” Because defendants were not the creators of the information, and the claims attempted to treat them as the publisher or speaker of that content, Section 230 barred the claims.

Kabbaj v. Google, Inc., 2015 WL 534864 (3rd Cir. Feb. 10, 2015)

About 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.

July 22, 2014 Defamation, Privacy, Section 230

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.

June 23, 2014 Section 230

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)

June 16, 2014 Defamation, Section 230

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.