Defamation: CDA Cases
Section 230 of Title 47 of the United States Code (47 U.S.C. § 230) was passed as part of the much-maligned Communication Decency Act of 1996. Many aspects of the CDA were unconstitutional restrictions of freedom of speech, but this section survived and has been a valuable defense for Internet intermediaries ever since. "By its plain language, § 230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service”. Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997), cert. denied, 524 U.S. 937 (1998).
EFF maintains an archive of CDA cases: http://www.eff.org/legal/ISP_liability/CDA230/
- 1 Upheld in Variety of Factual Contexts
- 2 Causes of Action Covered
- 3 Scope of Interactive Computer Service
- 4 Exercise of Editorial Functions
- 5 Minority Views
- 6 Key Cases
Upheld in Variety of Factual Contexts
Courts across the country have upheld Section 230 immunity and its policy of regulatory forbearance in a variety of factual contexts.
- Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003) (website operator immune for distributing email sent to listserv)
- Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th Cir. 2003) (Internet dating service provider was entitled to Section 230 immunity from liability stemming from third party’s submission of false profile);
- Gentry v. eBay, Inc., 99 Cal. App. 4th 816 (2002) (eBay is entitled to immunity);
- Kathleen R. v. City of Livermore, 87 Cal. App. 4th 684 (2001) (library not liable for providing access);
- Universal Commc'ns Sys., Inc. v. Lycos, Inc., 478 F.3d 413 (1st Cir. 2007) (message board not liable for users' messages);
- Schneider v. Amazon.com, Inc., 31 P.3d 37, 39 (Wash. Ct. App. 2001) (online bookseller providing forum for others to submit book reviews is “interactive computer service” provider (“ICS provider”));
- Doe v. America Online, 783 So.2d 1010, 1013-1017 (Fl. 2001), cert. denied, 122 S.Ct. 208 (2000) (§ 230 immunizes America Online (“AOL”) for negligence);
- Ben Ezra, Weinstein & Co. v. America Online, 206 F.3d 980, 984-985 (10th Cir. 2000), cert. denied, 531 U.S. 824 (2000) (no liability for posting of incorrect stock information);
- Marczeski v. Law, 122 F.Supp.2d 315, 327 (D. Conn. 2000) (individual who created private “chat room” was ICS provider entitled to immunity);
- Blumenthal v. Drudge, 992 F. Supp. 44, 49-53 (D.D.C. 1998) (AOL has Section 230 immunity from liability for content of independent contractor’s news reports, despite agreement with contractor allowing AOL to modify or remove such content).
- Global Royalties, Ltd. v. Xcentric Ventures, LLC, 544 F.Supp.2d 929 (D. Ariz. 2008) (website operator immune under 230 for refusing to remove post despite notification of its potentially defamatory content).
- Goddard v. Google, Inc., 640 F. Supp. 2d 1193 (N.D. Cal. 2009). Plaintiff, Jenna Goddard, claimed that she and a class of similarly situated individuals suffered injury at the hands of Google, Inc., Defendant, as a result of clicking on Google AdWords web-based advertisements created by allegedly fraudulent providers of services for various mobile devices. In its prior decision, the court granted Defendant’s motion to dismiss with leave to amend, holding that, “[e]ach of Plaintiff’s claims, as currently pled, is premised fundamentally on Google’s publication of the AdWords advertisements,” and therefore Plaintiff was unable to avoid section 230 immunity. 2008 WL 5245490 (N.D. Cal. Dec. 17, 2008) at *7. In the latest decision, the court dismissed without leave to amend under 12(b)(6) and CDA § 230, because "Plaintiff has not come close to substantiating the 'labels and conclusions' by which she attempts to evade the reach of the CDA." 640 F. Supp. 2d at 1196. Furthermore, the court stressed that the CDA “must be interpreted to protect websites not merely from ultimate liability, but from having to fight costly and protracted legal battles.” Id. at 1202.
- Nemet Chevrolet Ltd. v. ConsumerAffairs.com, Inc., 591 F.3d 250 (4th Cir. 2009). The court granted immunity from defamation and tortious interference with a business expectancy claims to a website that included consumer complaints. The court found the allegations that ConsumerAffairs.com was a ICP because it fabricated complaints or helped write them was insufficiently supported by facts to survive a motion to dismiss.
- Johnson v. Arden, 614 F. 3d 785 (8th Cir. 2010). The interactive website www.ComplaintsBoard.com immune for allegedly defamatory statements about the Cozy Kitten Cattery because Section 230 "bar[s] plaintiffs from holding ISPs legally responsible for information that third parties created and developed."
Causes of Action Covered
Courts have routinely held that the immunity conferred by Section 230 is available for myriad causes of action.
State Causes of Action
Section 230 is not limited to defamation actions. It extends to claims of negligence. Doe v. America Online, 783 So. 2d at 1013-1017; Schneider, 31 P.3d at 41-42 (negligent misrepresentation and interference with business expectancy). It extends to state causes of action for violating a statute that forbids dealers in autographed sports items from misrepresenting those items as authentically autographed. Gentry, 99 Cal. App. 4th at 828-833 (§ 230 immunity protects against liability under Civil Code § 1739.7). It extends to unfair competition laws. Stoner v. eBay, Inc., 2000 WL 1705637, (Cal. Super. 2000) (unpublished) (claiming eBay violated Calif. Bus. & Prof. Code § 17200 for auctions of bootleg and other unauthorized ‘infringing’ sound recordings); Perfect 10, Inc. v. CCBill, LLC,340 F. Supp. 2d 1077 (C.D. Cal. 2004) (applying § 230 to claim of unfair competition based on state law). It protects a library from being held liable for misuse of public funds, nuisance, and premises liability for providing computers allowing access to pornography. Kathleen R., 87 Cal. App.4th at 692. Novak v. Overture Services, Inc., 309 F. Supp. 2d 446 (E.D.N.Y. 2004) (applying § 230 to claim of tortious interference with prospective economic advantage); Beyond Systems, Inc. v. Keynetics, Inc., 422 F. Supp. 2d 523 (D. Md. 2006) (state anti-spam law); Doe v. MySpace, 528 F.3d 413 (5th Cir. 2008). (negligence and gross negligence); Cornelius v. Deluca, 2009 WL 2568044 (E.D. Mo. Aug. 18, 2009) (civil conspiracy claim).
It also extends to breaches of state securities laws and cyberstalking, Universal Communications Systems, Inc. v. Lycos, Inc., 478 F.3d 413 (1st Cir. 2007). Additionally, the 9th Circuit has found that section 230 extends to state intellectual property claims, but courts in other circuits have found the opposite. See Section 230 and Intellectual Property for details.
Section 230 extends to contract claims. Morrison v. America Online, Inc., 153 F.Supp.2d 930, 934 (N.D. Ind. 2001) (rejecting attempt to evade § 230 immunity by claiming to be third-party beneficiary of AOL’s member agreement with chat-room users); Jane Doe One v. Oliver, 755 A.2d 1000, 1003-1004 (Conn. Super. Ct. 2000) (applying § 230 to dismiss breach of contract action against AOL, as well claims such as negligence, breaching a mandated public policy, intentional nuisance, and emotional distress); Promissory Estoppel can waive the immunity provided by section 230. The court in Barnes v. Yahoo!, Inc., 570 F.3d 1096, as amended at 2009 U.S. App. LEXIS 20053 at *33-34 (9th Cir. June 22, 2009) (amending 565 F.3d 560) stated that, "once a court concludes a promise is legally enforceable according to contract law, it has implicitly concluded that the promisor has manifestly intended that the court enforce his promise. By so intending, he has agreed to depart from the baseline rules (usually derived from tort or statute) that govern the mine-run of relationships between strangers. Subsection 230(c)(1) creates a baseline rule: no liability for publishing or speaking the content of other information service providers. Insofar as [a party] made a promise with the constructive intent that it be enforceable, it has implicitly agreed to an alteration in such baseline."
Section 230 also protects against state criminal laws and civil claims based on federal criminal statutes. Voicenet Communications, Inc. v. Corbett, No. 04-1318, 2006 WL 2506318 (E.D. Pa. Aug. 30, 2006) (finding the "CDA confers a § 1983-enforceable right upon internet service providers and users to not be 'treated' under state criminal laws as the publisher or speaker of information provided by someone else..."); Doe v. Bates, No. 5:05-CV-91-DF-CMC, 2006 WL 3813758 (E.D. Tex. Dec. 27, 2006) (230 preempts civil claims predicated on federal criminal statutes). Additionally, the Michigan Court of Appeals, in an unpublished decision, stated that section 230 applies to criminal prosecutions. In People v. Gourlay, 2009 WL 529216, at *5 (Mich. App. Ct. March 3, 2009), the court found that, “the prosecution of defendant for distributing or promoting images of child sexually abusive material, as tried and argued before the jury, was based on defendant’s active involvement in the creation of [multiple] websites;” and thus his conviction on state criminal charges was not inconsistent with § 230.
Federal Causes of Action
Section 230 Immunity
Section 230 has been held to immunize ISPs from federal causes of action. See Noah v. AOL Time Warner, Inc., 261 F. Supp. 2d 532 (E.D. Va. 2003), aff'd by unpublished per curiam opinion 2004 WL 602711 (4th Cir. 2004) (AOL immune from federal civil rights claim that treated it as a publisher); see also Associated Bank-Corp. v. Earthlink, Inc., 05-C-0233-S, 2005 WL 2240952 (W.D. Wis. Sept. 13, 2005) (Section 230 protected against claim under Lanham Act, 1125(a)); see also Chicago Lawyers’ Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666 (7th Cir. 2008) (Section 230 immunizes Craigslist against Fair Housing Act claims).
Internet Service Provider v. Internet Content Provider
The dividing line in determining whether an entity is an "internet service provider" or an "internet content provider" hinges on editorial publisher function and when something is a statement being made by the information content provider. An emerging trend, though, has been noted in some recent 230 cases where courts have begun to develop an inducement model. In these cases, facilitating or inducing illegal behavior seems to be troubling for claiming 230 immunity.
In Fair Housing v. Roommates.com, 489 F.3d 921 (9th Cir. 2007), [hereinafter Roommates], in which the 9th Circuit held that the housing locator site, Roommates.com, was not immune under Section 230. Roommates was not a passive publisher of the content; rather, the site had developed questionnaires to elicit potentially discriminatory information from users. Although the court found that Roommates.com was immune in regard to open-ended questions that suggested no particular information to be provided by members, the court found that its search mechanism and e-mail notifications meant that it was neither a passive pass-through of information provided by others nor merely a facilitator of expression. "By categorizing, channeling and limiting the distribution of users' profiles, Roommates provides an additional layer of information that it is 'responsible' at least 'in part' for creating or developing." Id. at 17. The court therefore held that the site was an information content provider and not immune under the publisher provisions of the CDA.
Concurring in Roommates, Judge Ikuta disagreed with the majority's narrow interpretation of a content provider, writing, "Unless a website operator directly provides 'the essential published content,'... it is not an 'information content provider.'" Id. at 26. Judge Reinhardt argued in dissent that no immunity should attach at all because the user profiles had to be conceived as a whole, over which Roommates.com was exercising editorial control, and that therefore no part of the site deserved immunity.
The Ninth Circuit revised the Roommates decision en banc. Fair Housing v. Roommates.com, 521 F.3d 1157 (9th Cir. 2008). The Court clarified that "providing neutral tools to carry out what may be unlawful or illicit searches does not amount to 'development' for purposes of the immunity exception." Id. at 1169. Likewise, a "website operator who edits user-created content-such as by correcting spelling, removing obscenity or trimming for length-retains his immunity for any illegality in the user-created content, provided that the edits are unrelated to the illegality." Id.
Like Roommates, the court in Mazur v. eBay Inc., No. C 07-03967 MHP, 2008 WL 618988 (N.D. Cal. March 4, 2008) also found the defendant to be an information content provider. In this case, eBay made statements regarding the safety, circumstances and caliber of its live auctions. The court found that, “[t]hough eBay styles safety as a screening function whereby eBay is responsible for the screening of safe auctioneers, this court is unconvinced. eBay's statement regarding safety affects and creates an expectation regarding the procedures and manner in which the auction is conducted and consequently goes beyond traditional editorial discretion."
Similarly, in NPS LLC v. StubHub, Inc., 25 Mass.L.Rptr. 478, 2009 WL 995483 (Mass. Super. Ct. Jan. 26, 2009), the court found StubHub to be an “information content provider” if it could be shown that they encouraged their users to violate ticket scalping laws. The court held that, “there is evidence in the record that StubHub materially contributed to the illegal ‘ticket scalping’ of its sellers. In effect the same evidence that is sufficient, if proven, to establish improper means is also sufficient to place StubHub outside the immunity provided by the CDA.” Id. at *14.
The Tenth Circuit, noting that the meaning of “development” is more than simply creation, broadens the definition of “information content provider” in F.T.C. v. Accusearch Inc., 570 F.3d 1187 (10th Cir. 2009), and finds Accusearch responsible for the development of content as a result of their converting legally protected records from confidential material to publicly exposed information. In doing so, the court found “that a service provider is 'responsible' for the development of offensive content only if it in some way specifically encourages development of what is offensive about the content." Id. at 1199. The Court distinguished Ben Ezra, Weinstein & Co. v. America Online, 206 F.3d 980 (10th Cir. 2000), which held AOL not responsible for inaccurate stock information, because, although AOL solicited the stock information, "America Online had done nothing to encourage what made the content offensive." Id. at 1199-1200.
Alternatively, the Seventh Circuit in Chicago Lawyers' Committee for Civil Rights Under Law v. Craigslist, Inc., 519 F.3d 666 (7th Cir. 2008) [hereinafter Craigslist], mirrored part of the decision in Roommates, where the court found craigslist not responsible for the open-ended “Additional Comments” form on their website. Like Roommates, where the court found Defendant did not prompt or solicit any of the questionable material submitted by its users, the court in Craigslist also held that, “[n]othing] in the service craigslist offers induces anyone to post any particular listing or express a preference for discrimination; for example, craigslist does not offer a lower price to people who include discriminatory statements in their postings.” Id. at 671-672. From this, it appears that the point at which an "internet service provider” becomes an “internet content provider” is when the provider takes an active role in inducing their users to engage in illegal activity.
In Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250 (4th Cir. 2009), the Fourth Circuit distinguished Roommates, and found that the "structure and design of the website" was not sufficiently contributing to the content to transform Consumeraffairs.com into an information content provider.
Section 230 and Intellectual Property
"Nothing in [Section 230] shall be construed to limit or expand any law pertaining to intellectual property." Section 230(e)(2). No legislative history exists regarding subsection (e)(2).
This provision has led courts to hold that Section 230 immunity is not available for federal intellectual property claims. See Gucci Am., Inc. v. Hall & Assocs., 135 F. Supp. 2d 409, 413 (S.D.N.Y. 2001) (holding that to immunize defendant from trademark claims would limit laws pertaining to intellectual property); Ford Motor Co. v. GreatDomains.com, Inc., No. 00-CV-71544-DT, 2001 WL 1176319, at *1 (E.D. Mich. Sept. 25, 2001) (holding that if defendant violated federal trademark laws Section 230 would not provide immunity); Parker v. Google, Inc., 422 F. Supp. 2d 492, 502 n.8 (E.D. Pa. 2006) ("Google argues that it is immune from Lanham Act claims because of its § 230 immunity under the CDA. We agree with those courts that have rejected this argument based on § 230(c)(2)'s exception for intellectual property laws."); cf. Associated Bank-Corp. v. Earthlink, Inc., 2005 WL 2240952 (W.D. Wis. Sept. 13, 2005) (dismissing Lanham Act claim ("15 U.S.C. § 1125(a), Injury to Business Reputation") under Section 230).
The Ninth Circuit has "constru[ed] the term 'intellectual property' to mean 'federal intellectual property.'" Perfect 10, Inc. v. CCBill, LLC, 488 F.3d 1102, 1119 (9th Cir. 2007); accord Curran v. Amazon.com, Inc., 2008 WL 472433 (S.D. W.Va. Feb. 19, 2008). In Perfect 10, Inc. v. CCBill, LLC, 340 F. Supp. 2d 1077 (C.D. Cal. 2004), the District Court had initially found that a state law right of publicity was an intellectual property right, and therefore not covered by Section 230. However, the Ninth Circuit reversed "[b]ecause material on a website may be viewed across the Internet, and thus in more than one state at a time, permitting the reach of any particular state’s definition of intellectual property to dictate the contours of this federal immunity would be contrary to Congress’s expressed goal of insulating the development of the Internet from the various state-law regimes." Id. at 1118.
In an earlier Ninth Circuit decision, Carafano v. Metrosplash.Com, Inc., 339 F.3d 1119, 1125 (9th Cir. 2003), the Ninth Circuit dismissed a right of publicity claim pursuant to Section 230, but without any discussion. Alternatively, the court in Doe v. Friendfinder Network, Inc., 540 F. Supp. 2d 288 (D.N.H. 2008) [hereafter Friendfinder] followed the First Circuit's dictum in Universal Commc'n Sys., Inc. v. Lycos, Inc., 478 F.3d 413 (1st Cir. 2007), and disagreed "with the Ninth Circuit's decision in Perfect 10 that [section] 230(e)(2) exempts only federal intellectual property laws from the operation of [section] 230." The Friendfinder court stated that, "[c]onsistent with its text, § 230(e)(2) applies simply to 'any law pertaining to intellectual property,' not just federal law." Moreover, the court in Atlantic Recording Corp. v. Project Playlist, Inc. [hereafter Atlantic], relying on the plain language of the CDA, disagreed with the Ninth Circuit. 603 F. Supp. 2d 690 (S.D.N.Y. 2009) (holding that the CDA did not bar New York state law claims for common law copyright infringement and unfair competition). The Atlantic court reasoned that "Congress specified whether it intended a subsection to apply to local, state, or federal law. It is therefore clear from the statute that if Congress wanted the phrase 'any law pertaining to intellectual property' to actually mean 'any federal law pertaining to intellectual property,' it knew how to make that clear, but chose not to." Id. at 703 (citations omitted; emphasis in original).
Almeida v. Amazon.com, Inc., 456 F.3d 1316 (11th Cir. 2006) declined to rule on whether 230 preempts right of publicity rights claim, but engaged in extensive discussion. See also Stayart v. Yahoo! Inc., 651 F.Supp.2d 873 (E.D.Wis. 2009) (also discussing without deciding).
Scope of Interactive Computer Service
Courts have almost unanimously held that, while the phrase “provider . . . of interactive computer services” may seem to refer only to the activities of traditional ISPs, the broad language and policy rationale behind Section 230 require that entities as different as an online matchmaking service, a copy shop, an online bookseller, an online auction service, a public library, and an Internet user who created a chat room all receive immunity from civil liability. Accordingly, courts have interpreted Section 230 protection to be “quite robust, adopting a relatively expansive definition of ‘interactive computer service[.]’” Carafano v. Metrosplash.com, Inc., 339 F. 3d 1119, 1123 (9th Cir. 2003); see also Parker v. Google, 422 F. Supp. 2d 492, 501 n.6 (E.D. Pa. 2006) (same); Associated Bank-Corp. v. Earthlink, Inc., No. 05-C-0233-S, 2005 WL 2240952, at *3 (W.D.Wis. Sept. 13, 2005) (quoting Carafano, 339 F.3d at 1123)."[T]he most common interactive computer services are websites." Roommates.com, 521 F.3d at 1162 n.6.
- Carafano, 339 F.3d 1119 (online matchmaking service is an ICS);
- PatentWizard, Inc. v. Kinko’s, Inc., 163 F. Supp. 2d 1069, 1071 (D.S.D. 2001) (photocopy shop not contested as ICS provider under § 230);
- Schneider v. Amazon.com, Inc., 31 P.3d 37, 39 (Wash. Ct. App. 2001) (online bookseller providing forum for others to submit book reviews is “interactive computer service” provider); Corbis v. Amazon.com, 351 F. Supp. 2d 1090, 1118 (W.D. Wash. 2004) (same);
- Gentry, 99 Cal. App. 4th at 931 n.7 (eBay an ICS);
- Kathleen R., 87 Cal. App. 4th at 692-693 (public library protected by § 230);
- Marczeski v. Law, 122 F. Supp. 2d 315, 327 (D. Conn. 2000) (organizer of chat room for discussion of dispute about plaintiff held to be ICS provider);
- Batzel, 333 F.3d at 1031 (website and listserv operator held to be ICS provider and user);
- Smith v. Intercosmos Media Group, Inc., 2002 WL 31844907 (E.D. La. 2002) (domain name registrar is an ICS provider).
- Parker v. Google, Inc., 422 F. Supp. 2d 492 (E.D.Pa. 2006), aff'd 242 Fed. Appx. 833 (3rd Cir. 2007) (search engine Google immune for archiving of, caching of, or providing access to allegedly defamatory, unauthorized, or threatening usenet postings).
- DiMeo v. Max, full text of opinion, 433 F. Supp. 2d 523 (E.D. Pa. May 26, 2006) (online message board is covered by section 230 despite editorial review by message board operator), aff'd 248 Fed. Appx. 280 (3rd Cir. 2007).
- Prickett v. infoUSA, Inc., 561 F. Supp. 2d 646 (E.D. Tex. 2006) (database publisher retains section 230 immunity for content furnished to it by third parties even if the database publisher later licenses the database content to third parties).
- D’Alonzo v. Truscello, No. 0274, 2006 Phila. Ct. Comm. Pl. LEXIS 244 (Phila. Ct. Comm. Pl. May 31, 2006), 2006 WL 1768091 (Pa. Com. Pl. 2006) (website was "interactive computer service," and not "internet content provider," within meaning section 230 immunity provision. )
- Delfino v. Agilent Technologies, Inc., 52 Cal. Rptr. 3d 376, 145 Cal. App. 4th 790 (Cal. App. Ct. 2006) (employer that provided its employees with Internet access through employer's internal computer system was “provider or user of an interactive computer service” within meaning of section 230 immunity provision).
Application to Users of Interactive Computer Services
Section 230 expressly grants providers and users the same immunity on the same terms. 47 U.S.C. § 230(c)(1) (“[n]o provider or user . . .”); see also Barrett v. Rosenthal, 40 Cal. 4th 33, 146 P.3d 510 (Cal. 2006) (“By declaring that no ‘user’ may be treated as a ‘publisher’ of third party content, Congress has comprehensively immunized republication by individual Internet users.”); Batzel v. Smith, 333 F.3d 1018, 1030 (9th Cir. 2003), cert. denied, 124 S.Ct. 2812 (2004) (“language of § 230(c)(1) confers immunity not just on ‘providers’ of such services, but also on ‘users’ of such services”); Optinrealbig.com, LLC v. Ironport Systems, Inc., 323 F. Supp. 2d 1037 (N.D. Cal. 2004) (defendant protected where it “uses interactive computer services to distribute its on-line mailing and to post the reports on its website”); Barrett v. Fonorow, 799 N.E. 2d 916, 923-24 (Ill. App. 2003) (poster of Bolen’s messages was ICS “provider or user”). This parity of treatment is also reflected in the statute’s second immunity provision, subsection 230(c)(2), which uses the same phrasing of “[n]o provider or user. . . .” Cf. Novartis Vaccines and Diagnostics, Inc v. Stop Huntingdon Cruelty USA, Inc. 143 Cal. App. 4th 1284, 1301 (Cal. App. 2006) (in a decision prior to the California Supreme Court in Barrett, limiting 230 to interactive computer service providers without discussing or addressing statutory language).
Court have generally found that website operators are both providers and users of interactive computers services. As one court opined, for a “Web site to exist, it must access the Internet through some form of interactive computer service; otherwise, the public could not view it. Thus, [the defendant's] Web site is also the ‘user’ of an interactive computer service.” DiMeo v. Max, 433 F. Supp. 2d at 529-530 (E.D. Pa. 2006); see also Donato v. Moldow, 374 N.J. Super. at 488 (finding website operator both provider and user); Batzel at 1031 (finding no need to determine if website and listserv was user or provider, since it was clearly one or the two).
Exercise of Editorial Functions
Section 230 forbids the imposition of publisher liability on a service provider for the exercise of its editorial and self-regulatory functions. As the Fourth Circuit noted:
[L]awsuits seeking to hold a service liable for its exercise of a publisher’s traditional editorial functions – such as deciding whether to publish, withdraw, postpone or alter content – are barred. The purpose of this statutory immunity is not difficult to discern. Congress recognized the threat that tort-based lawsuits pose to freedom of speech in the new and burgeoning Internet medium. . . . Section 230 was enacted, in part, to maintain the robust nature of Internet communication[.]
Zeran v. America Online, 129 F.3d 327, 330-31 (4th Cir. 1997) (in enacting § 230, Congress sought "to encourage service providers to self-regulate the dissemination of offensive material over their services" and to remove disincentives to self-regulation); see also Blumenthal v. Drudge, 922 F. Supp. 44, 52 (D.D.C. 1998) (§ 230 forbids the imposition of publisher liability on a service provider for the exercise of its editorial and self- regulatory functions); 141 Cong. Rec. H8460-01, H8470 (1995) (statement of Rep. Barton) (Congress enacted § 230 to give interactive service providers "a reasonable way to . . . help them self-regulate themselves without penalty of law").
As noted by the Ninth Circuit, a central purpose of Congress in enacting Section 230 “was to protect from liability service providers and users who take some affirmative steps to edit the material….” Batzel, 333 F.3d at 1031. Accordingly, Section 230 “precludes liability for exercising the usual prerogative of publishers … to edit the material published….” Id. "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." Id.
Numerous courts have agreed. See Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1124 (9th Cir. 2003) ("So long as a third party willingly provides the essential published content, the interactive service provider receives full immunity [under Section 230] regardless of the specific editing or selection process."); Ben Ezra, 206 F.3d at 985-986 (deleting of information did not transform ICS provider into “information content provider”); Schneider, 31 P.3d at 39-43 (website not liable despite right to edit posted matter); D'Alonzo v. Truscello, 2006 WL 176809, 2006 Phila. Ct. Com. Pl. LEXIS 244 (Phila. Ct. Common Pleas May 31, 2006) (not liable where ICS affirmatively gets content elsewhere);
Thus, minor alterations and categorizations do not remove the immunity. In Ramey v. Darkside Producs., Inc. 2004 U.S. Dist. LEXIS 10107, *19-20 (D.D.C. 2004) the Court followed Batzel and Carafano, and held that defendant's "minor alterations of that advertisement (printing its website address on every advertisement that it publishes on its website, placing a watermark on the photos used, and categorizing the advertisements by subject matter) do not constitute "creation or development" of the advertisement within the definition of "information content provider." To the contrary, "because Defendant did no more than select and make minor alterations to Crittenden's advertisement, it cannot, as a matter of law, be considered the content provider of the advertisement for purposes of § 230." Id., cf. MCW, Inc. v. badbusinessbureau.com, LLC, No. 3:02-CV-2727-G, 2004 WL 833595 (N.D. Tex. Apr. 19, 2004) (no immunity where allegation that defendant Rip-Off Report created "disparaging titles, headings, and editorial messages," and that editorial contributions contributed to and shaped content, holding that "actively encouraging and instructing a consumer to gather specific detailed information is an activity that goes substantially beyond the traditional publisher's editorial role."); Hy Cite Corp. v. badbusinessbureau.com, LLC, 418 F. Supp. 2d 1142, 1148-49 (D. Ariz. 2005) (no immunity when plaintiff alleged "that wrongful content appears on the Rip-off Report website in editorial comments created by Defendants and titles to Rip-off Reports, which Defendants allegedly provide."); Whitney Information Network v. Xcentric Ventures, 199 Fed. Appx. 738 (11th Cir. Aug 1, 2006) (bare declaration on non-authorship insufficient to get 230 defense on summary judgment).
Even providing the canvas upon which a third party places material is insufficient for liability. Gentry, 99 Cal. App. 4th at 833-34 (eBay not liable despite highly structured Feedback Forum); see also Universal Communications 2007 WL 549111 (message board postings do not cease to be “information provided by another information content provider” merely because the “construct and operation” of the website might have some influence on the content of the postings); Carafano, 339 F.3d at 1124-25 (Internet dating service immune even though it “contributes much more structure and content than eBay by asking 62 detailed questions and providing a menu of ‘pre-prepared responses.’”); Prickett v. InfoUSA, Inc. 561 F. Supp. 2d 646 (E.D. Tex. 2006) (immunity even though system prompts uses "to select subcategories...The fact that some of the content was formulated in response to the Defendant's prompts does not alter the Defendant's status.")
While Section 230(f)(3)'s definition of an information content provider includes "any person ... that is responsible ... for the creation or development of information," the inclusion of "development" does not prohibit editorial activities. "Development requires material substantive contribution to the information that is ultimately published. Deleting profanity, selectively deleting or allowing to remain certain postings, and commenting favorably or unfavorably on some postings, without changing the substance of the message authored by another, does not constitute “development” within the meaning of § 230(f)(3)." Donato v. Moldow, 374 N.J. Super. 475, 865 A.2d 711, 727-728 (N.J. Super. A.D. 2005). Moreover, failing to remove a posting after being put on notice of the posting's potentially defamatory nature, constitutes an editorial function and thus falls within the immunity provided by section 230. Global Royalties, Ltd. v. Xcentric Ventures, LLC, 544 F. Supp. 2d 929 (D. Ariz. 2008). Universal Commc'n Sys., Inc. v. Lycos, 478 F.3d 413, 420 (1st Cir. 2007). However, when an internet service provider requests potentially defamatory material for the purpose of incorporating the provided material into a larger posting containing original "thoughts and contributions," section 230 immunity may not apply. Woodhull v. Meinel, 145 N.M. 533, 202 P.3d 126 (N.M. App. Ct. 2008)(in reversing a grant of summary judgment, the court stated that, the "defendant created a question as to whether [a previous posting] could reasonably be viewed as containing two substantive elements calling for separate analysis and treatment.")
Editorial Control Not Required
While encouraging self-regulation, Section 230 “does not require [information content providers] to restrict speech; rather, it allows [them] to establish standards of decency without risking liability for doing so.” Green v. American Online, Inc., 318 F.3d 465, (3rd Cir. 2003); see also Blumenthal, 992 F. Supp. at 52 (“Congress has conferred immunity from tort liability as an incentive to Internet service providers to self-police the Internet for obscenity and other offensive material, even where the self-policing is unsuccessful or not even attempted.”); Barrett, 40 Cal. 4th at 34 (Section 230’s protection ”applies even when self-regulation is unsuccessful, or completely unattempted”).
View that Distributor Liability is Not Covered
In Barrett v. Rosenthal, 40 Cal. 4th 33, 146 P.3d 510 (Cal. 2006), the California Supreme Court reversed Barrett v. Rosenthal, 9 Cal. Rptr. 3d 142, 2003 Cal. App. LEXIS 1551 (Cal. App. 2003), and rejected the view that Section 230 did not cover distributor liability.
The California Court of Appeal had explicitly disagreed with the Zeran line of federal cases, holding that the CDA’s immunity only applies to publisher, not distributor, liability for tortious statements. In Zeran, the Fourth Circuit had ruled that “distributors are considered to be publishers for purposes of defamation law,” noting that Congress “employ[ed] the legally significant term ‘publisher,’ which has traditionally encompassed distributors and original publishers alike.” Zeran, at 332-334; see also Perfect 10, Inc. v. CCBill, LLC, 340 F. Supp. 2d 1077, 1111 (C.D. Cal. 2004) ("[E]ven if the Defendants are considered distributors rather than publishers, the CDA immunities would still apply...."); Blumenthal, 992 F. Supp. at 52 (in enacting Section 230, "Congress made no distinction between publishers and distributors in providing immunity from liability").
However, the California appeals court, in a case in which a user of an Internet discussion group repeatedly re-posted defamatory statements on a message board, had held that the distributor can be liable if he or she has reason to know of the messages’ defamatory character, overruling Barrett v. Clark, 29 Media L. Rep. 2473 (Cal. Sup. Ct. 2001). In Grace v. eBay, Inc., 120 Cal. App. 4th 984, 16 Cal. Rptr. 3d 192 (Cal. App. 2004), another California court followed Barrett, holding no immunity against liability for a distributor of information who knew or had reason to know that the information was defamatory. Both Grace and Barrett were depublished pending the California Supreme Court decision, and are now superseded. See also Austin v. CrystalTech Web Hosting, 211 Ariz. 569, 125 P.3d 389 (Ariz. App. Div. 2005) (declining invitation to "reject the Zeran analysis and instead follow Barrett v. Rosenthal," and noting that "every [federal] appellate court to reach the issue has followed the Fourth Circuit's approach in Zeran.")
In Barnes v. Yahoo!, Inc., 570 F.3d 1096, 2009 U.S. App. LEXIS 20053 at *21-22 (9th Cir. June 22, 2009), the 9th Circuit found that the publisher/distributor distinction in defamation law has little to do with section 230 because "section 230(c)(1) precludes courts from treating internet service providers as publishers not just for the purposes of defamation law, with its particular distinction between primary and secondary publishers, but in general. The statute does not mention defamation, and we decline to read the principles of defamation law into it."
For academic views, see Susan Friewald, Comparative Institutional Analysis in Cyberspace: The Case of Intermediary Liability for Defamation, 14 Harv. J.L. & Tech 569 (2001) and David R. Sheridan, Zeran v. AOL and the Effect of Section 230 of the Communications Decency Act upon Liability for Defamation on the Internet, 61 Alb. L.Rev. 147 (1997).
View that Section 230 is an Affirmative Defense
Four courts have supported the minority view that Section 230 is an affirmative defense, and therefore defendants generally cannot dismiss claims under FRCP 12(b)(6). In Novak v. Overture Servs., Inc., 309 F.Supp.2d 446, 452 (E.D.N.Y. 2004), the court noted that “invocation of Section 230(c) immunity constitutes an affirmative defense[, a]s the parties are not required to plead around affirmative defenses, such an affirmative defense is generally not fodder for a Rule 12(b)(6) motion." Nevertheless, the court granted the defendant's motion to dismiss pursuant to Section 230. Likewise, in Doe v. GTE Corp., 347 F.3d 655, 657 (7th Cir. 2003), the Seventh Circuit wrote that “[a]ffirmative defenses do not justify dismissal under Rule 12(b)(6); litigants need not try to plead around defenses,” but also affirmed the District Court's grant of the motion to dismiss. Doctor's Associates, Inc. v. QIP Holders, LLC, 2007 WL 1186026 (D. Conn. 2007) became the first case to actually deny a motion to dismiss pursuant to the dicta Novak and GTE. Curran v. Amazon.com, Inc., 2008 WL 472433 (S.D. W.Va. Feb. 19, 2008) also followed GTE and denied a motion to dismiss, stating that, "immunity pursuant to § 230(c) of the CDA constitutes an affirmative defense."
This view is not widely shared, and the majority of jurisdictions regularly grant FRCP 12(b)(6) motions to dismiss when it is clear that Section 230 barred the claims alleged in the plaintiff’s complaint. See e.g. Universal Communications Systems v. Lycos, Inc., 2005 WL 5250032, 2005 U.S. Dist. LEXIS 44778, at * 4 (D. Mass. 2005), aff’d, 478 F. 3d 413 (1st Cir. 2007); Green v. America Online, 318 F.3d 465, 472 (3d Cir. 2003); Noah v. AOL Time Warner, Inc., 261 F. Supp. 2d 532, 534 (E.D. Va. 2003), aff’d, 2004 WL 602711, 2004 U.S. App. LEXIS 5495 (4th Cir. Mar. 24, 2004); Parker v. Google, Inc., 422 F.Supp.2d 492 (E.D.Penn. 2006); Morrison v. American Online, Inc., 153 F.Supp.2d 930 (N.D.Ind. 2001).
- Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997)
- Blumenthal v. Matt Drudge & America Online, Inc., 992 F. Supp. 44 (D.D.C. 1998)
- Ben Ezra, Weinstein, and Co. v. America Online, Inc., 27 Media L. Rep. 1794 (D.N.M. 1999), aff’d, 206 F.3d 980 (10th Cir. 2000)
- Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003)
- Barnes v. Yahoo!, Inc., 565 F.3d 560 (9th Cir. May 7, 2009), later amended by 570 F.3d 1096, as amended at 2009 U.S. App. LEXIS 20053 (9th Cir. June 22, 2009)
- Fair Housing Coun., San Fernando v. Roommates. com, 521 F. 3d 1157 (9th Cir. 2008)(en banc)