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Good Samaritan 47 USC § 230(c)(1) Dont be a FOOL; The Law is Not DIY
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Third Party Content

"That it is unreasonable to imagine Printers approve of every thing they print, and to censure them on any particular thing accordingly; since in the way of their Business they print such great variety of things opposite and contradictory. It is likewise as unreasonable what some assert, That Printers ought not to print any Thing but what they approve; since if all of that Business should make such a Resolution, and abide by it, an End would thereby be put to Free Writing, and the World would afterwards have nothing to read but what happen’d to be the Opinions of Printers."  Benjamin Franklin, Apology for Printers June 10, 1731

Section 230(c)(1):

[C]reates 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. Specifically, § 230 precludes courts from entertaining claims that would place a computer service provider in a publisher's role. Thus, law suits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions such as deciding whether to publish, withdraw, postpone or alter content-are barred.

Three-part inquiry to determine CDA § 230(c)(1) immunity:

(1) whether Defendant is a provider of an interactive computer service;
(2) if the postings at issue are information provided by another information content provider (Third Party Content); and
(3) whether Plaintiff's claims seek to treat Defendant as a publisher or speaker of third party content. (Cause of Action)

Circuit Court 

District Court

This defense has been interpreted broadly. [Carafano] [Batzel n 19] [Zango] [Nemet Chevrolet, Ltd. v. Consumer airs.com, Inc., 591 F.3d 250, 254-55 (4th Cir. 2009)] [Zeran v. American Online Inc., 129 F.3d 327, 330 (4th Cir. 1997) ("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.")]

Mere speculation is insufficient to overcome a motion to dismiss. Levitt v. Yelp! Inc., Case No. C10-1321, 2011 WL 5079526, at *2 (N.D. Cal. Oct. 26, 2011) (rejecting similarly speculative assertions that unidentified Yelp employees authored allegedly defamatory reviews)

Immunity

The circuits are split as to whether the defense established by § 230(c)(1) is properly understood as an "immunity" defense. Ordinarily, courts "aim to resolve the question of § 230 immunity at the earliest possible stage of the case because that immunity protects websites not only from `ultimate liability,' but also from `having to fight costly and protracted legal battles.'" Nemet Chevrolet v. Consumeraffairs.com, 591 F.3d 250, 255 (4th Cir. 2009); Hare v. Richie, Dist. Court, D. Maryland 2012.

One of the more interesting cases in this space was GENERAL STEEL DOMESTIC SALES, LLC v. Chumley, Court of Appeals, 10th Circuit 2016 where Defendant argued that Sec. 230(c) provides immunity not just from liability, but from suit itself. Having clearly stated in 2000 that an online service " ... is immune from suit under § 230," the 10th Circuit had to circle back and say, "well, we have never really examined this question of immunity before." There is a significant difference between Sec. 230(c) being an affirmative defense that prevents liability - where after appropriate discovery the court can conclude that defendant appropriately falls under the ambit of the statute - and Sec. 230(c) building an impenetrable wall around defendant preventing any lawsuit. The 10th Circuit takes the time to make clear that this type of immunity is normally reserved for governments:

"Immunity from suit is a benefit typically only reserved for governmental officials. Wyatt v. Cole, 504 U.S. 158, 167 (1992) (qualified immunity); see Farmer v. Perrill, 275 F.3d 958, 961 (10th Cir. 2001) (limited waiver of immunity under Federal Tort Claims Act). There are three instances when courts may extend qualified immunity to private parties. First, if the private parties are "closely supervised by the government." Rosewood Servs., Inc. v. Sunflower Diversified Servs., Inc., 413 F.3d 1163, 1167 (10th Cir. 2005); see also DeVargas v. Mason & Hanger-Silas Mason Co., 844 F.2d 714, 722 (10th Cir. 1988). Second, if there is a historical basis for providing immunity to that type of private entity. Richardson v. McKnight, 521 U.S. 399, 404 (1997). Third, if extending immunity implicates "special policy concerns involved in suing government officials." Wyatt, 504 U.S. at 167. We need not delve into this analysis because this suit in no way involves the government, and Armstrong Steel has not identified a historical basis for providing private parties immunity from suit under the CDA."

Defendants still gots to defend.

Immunity

2nd Circuit

3rd Circuit

4th Circuit:

5th Circuit:

8th Circuit: Johnson v. Arden, 614 F.3d 785, 791 (8th Cir. 2010) (holding that § 230(c)(1) establishes an immunity defense);

9th Circuit:

10th Circuit:

11th Circuit: Almeida v. Amazon.com, Inc., 456 F.3d 1316, 1321 (11th Cir. 2006)

Immunity Regardless of Whether Unethical

immunity applies regardless of whether its practices are deemed ethical or not. See Giordano v. Romeo, 76 So. 3d 1100, 1102 (Fla. 3d DCA 2011) ("However much as this Court may disapprove of business practices like those embraced by [the plaintiff], the law on this issue is clear. [The plaintiff] enjoys complete immunity from any action brought against it as a result of the postings of third party users of its website.")

Affirmative Defense

Pleading Requirements

  • DiMeo v. Max, 248 F. App'x 280, 282 (3d Cir. 2007) ("Although DiMeo argues on appeal that Max is in fact an information content provider because he solicited and encouraged members of his message board community to engage in defamatory conduct or was otherwise partially responsible for the conduct, the complaint is devoid of any such allegations.")
  • Moretti v. THE HERTZ CORPORATION, Dist. Court, D. Delaware 2017 (Denying Sec. 230(c)(1) motion to dismiss Rule 12(c) on grounds that plaintiff did not not (yes double negative) plead that defendant Hotwired was an Information Content Provider - " Rule 8 does not require plaintiffs to "anticipate or overcome affirmative defenses" in a complaint. Schmidt v. Skolas, 770 F.3d 241, 248 (3d Cir. 2014). For that reason, "a complaint does not fail to state a claim simply because it omits facts" that would defeat, for example, a statute of limitations defense. Id. Defending parties are responsible for asserting affirmative defenses and ultimately bear the burdens of production and persuasion with respect to such defenses. See Moore v. Kulicke & Soffa Indus., Inc., 318 F.3d 561, 566 (3d Cir. 2003). It follows that "[l]itigants need not try to plead around" potential defenses. Schmidt, 770 F.3d at 248 (internal quotation marks omitted).")
  • Kabbaj v. Google, Inc., 2014 WL 1369864 (D. Del. Apr. 7, 2014) ("[t]he amended complaint [did] not allege that any Defendant created or authored the defamatory statements." Id. at *3. Instead, "the amended complaint allege[d] that Defendants hosted content, administered services, and provided a platform for others' content." Id. The Third Circuit summarily affirmed. See Kabbaj v. Google, Inc., 592 F. App'x 74 (3d Cir. 2015).)
  • CYBERSITTER, LLC v. Google Inc., 905 F. Supp. 2d 1080 - Dist. Court, CD California 2012 ("Plaintiff alleges that both Defendant and ContentWatch willfully and intentionally "made untrue and misleading statements in ... False Ads concerning Plaintiff's products and services." Compl. ¶ 87. However, Defendant argues that the advertisements were created by ContentWatch alone and not by Defendant. Opp'n 13:20-14:3. Because Defendant's entitlement to immunity under the CDA depends on whether Defendant "developed" or materially contributed to the content of these advertisements, it is too early at this juncture to determine whether CDA immunity applies. Thus, the Court DENIES Defendant's Motion to Dismiss [Rule 12(c)] Plaintiff's eighth claim for false advertising")

Components of Immunity Claim

(1) Whether Defendant is a providing of an interactive computer service

Sec. 230(c) protects interactive computer services.

47 U.S.C. s 230(f): Definitions

(2) Interactive computer service The term “interactive computer service” means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

(3) Information content provider The term “information content provider” means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.

An "interactive computer service" has been interpreted broadly. It's not just the ISPs that are protected. [Batzel p 1030] [Zango (230 protects malware filter as an "access software provider" 230(f)(4)(a))] The following have been found to be interactive computer services protected from liability.

(2) if the postings at issue are information provided by another information content provider (Third Party Content); and

As long as the content is from a third party, the interactive computer service is generally not liable as a publisher.

Mixed Content Host and Creator

An interactive computer service can lose its immunity where it also acts as an information content provider.

"Some courts have recognized that a website operator may be "responsible" for "development" of offensive content, within the meaning of § 230(c)(1), if it "in some way specifically encourages development of what is offensive about the content." "A website operator can be both a service provider and a content provider: If it passively displays content that is created entirely by third parties, then it is only a service provider with respect to that content. But as to content that it creates itself, or is “responsible, in whole or in part” for creating or developing, the website is also a content provider. Thus, a website may be immune from liability for some of the content it displays to the public but be subject to liability for other content." Roommates.com, p. 3453 9th Cir. 2009; Anthony v. Yahoo! Inc., 421 F. Supp. 2d 1257, 1262-63 (N.D. Cal. 2006) (Yahoo! is not immune under the CDA for allegedly creating fake profiles on its own dating website); Hare v. Richie, No. Civ. ELH-11-3488, 2012 WL 3773116, at *15-16 (D. Md. Aug. 29, 2012) [Compare Donato slip at 20 Even where the service provider also acts as a content provider - even where the service providers comments on the third party content in question - as long as the service provider did not provide the content in question, the service provider is protected.]

Circuit Courts

  • Fed. Trade Comm'n v. Accusearch Inc., 570 F.3d 1187, 1198 (10th Cir. 2009). ("The Tenth Circuit also has held that a website could not claim immunity under the CDA if it was "responsible for the development of the specific content that was the source of the alleged liability.""Moreover, that Court held that one is not "responsible" for "developing" allegedly actionable information only "if one's conduct was neutral with respect to the offensiveness of the content." Id. at 1199.")
  • Johnson v. Arden, 614 F.3d 785, 792 (8th Cir. 2010) (holding interactive computer service provider was entitled to § 230(c)(1) immunity where there was "no evidence that [provider] designed its website to be a portal for defamatory material or do anything to induce defamatory postings");
  • FTC v. Accusearch, 570 F.3d 1187, 1197 (10th Cir. 2009) ("[A]n interactive computer service that is also an information content provider of certain content is not immune from liability arising from publication of that content." (quoting Fair Hous. Council v. Roommates.com, 521 F.3d 1157, 1162 (9th Cir. 2008) (en banc))).
  • Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1164-65 (9th Cir. 2008) (en banc) (holding website operator was not entitled to § 230(c)(1) where it made users' "ANSWERING . . . DISCRIMINATORY QUESTIONS A CONDITION of doing business," thereby participating in the "development" of the users' submissions).
    • p. 3459: "Roommate does much more than provide options. To begin with, it asks discriminatory questions that even the dissent grudgingly admits are not entitled to CDA immunity. Dissent at 3480 n.5. The FHA makes it unlawful to ask certain discriminatory questions for a very good reason: Unlawful questions solicit (a.k.a. “develop”) unlawful answers. Not only does Roommate ask these questions, Roommate makes answering the discriminatory questions a condition of doing business. This is no different from a real estate broker in real life saying, “Tell me whether you’re Jewish or you can find yourself another broker.” When a business enterprise extracts such information from potential customers as a condition of accepting them as clients, it is no stretch to say that the enterprise is responsible, at least in part, for developing that information."
    • p. 3460: "Similarly, Roommate is not entitled to CDA immunity for the operation of its search system, which filters listings, or of its email notification system, which directs emails to subscribers according to discriminatory criteria. Roommate designed its search system so it would steer users based on the preferences and personal characteristics that Roommate itself forces subscribers to disclose. If Roommate has no immunity for asking the discriminatory questions, as we concluded above, see pp. 3455-57 supra, it can certainly have no immunity for using the answers to the unlawful questions to limit who has access to housing."
    • "By requiring subscribers to provide the information as a condition of accessing its service, and by providing a limited set of pre-populated answers, Roommate becomes much more than a passive transmitter of information provided by others; it becomes the developer, at least in part, of that information. And section 230 provides immunity only if the interactive computer service does not `creat[e] or develop[]' the information `in whole or in part.'" (Roommates, at p. 1166.)
    • "Roommate is not being sued for removing some harmful messages while failing to remove others; instead, it is being sued for the predictable consequences of creating a website designed to solicit and enforce housing preferences that are alleged to be illegal.
    • See Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 666 F.3d 1216 (9th Cir. 2012) ("Following remand and a decision on the merits of the underlying statutory housing claims, another appeal was taken. In the resulting opinion, the Ninth Circuit acknowledged and left undisturbed its prior CDA ruling, although it held that the website had not violated the housing statutes in question.")
    • "the editor of an email newsletter received a tip about some artwork, which the tipster falsely alleged to be stolen. The newsletter editor incorporated the tipster’s email into the next issue of his newsletter and added a short headnote, which he then emailed to his subscribers. The art owner sued for libel and a split panel held the newsletter editor to be immune under section 230 of the CDA." Roommates, p. 3466, 9th Cir. 2008
  • Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 257-258 (4th Cir. 2009) (defendant encouraging inaccurate or defamatory posts could remove it from the protection of the Section 230 immunity)
  • Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005) (holding that distributors of software that enables file sharing through peer-to-peer networks can be liable for contributory copyright infringement if system is designed to enable and encourage stealing of music).
  • Chicago Lawyers' Comm. For Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 670 (7th Cir. 2008). ("Judge Easterbrook of the Seventh Circuit, speaking for a panel of that court, emphasized that the CDA does not provide "a grant of comprehensive immunity from civil liability for content provided by a third party." While finding the website "craigslist" to be entitled to CDA immunity in that case, the Court noted that "[n]othing in the service craigslist offers induces anyone to post any particular listing or express a preference for discrimination." Id. at 671-72.")
  • Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1123 (9th Cir. 2003)("Under the statutory scheme, an `interactive computer service' qualifies for immunity so long as it does not also function as an `information content provider' for the portion of the statement or publication at issue.").
    • Bollaert "In Carafano, the question was whether the defendant dating service Web site was statutorily immune under the CDA for false content in a dating profile provided by someone posing as the celebrity plaintiff. (Id. at p. 1120.) The dating Web site gave users a "detailed questionnaire" that included multiple-choice questions wherein "members select answers . . . from menus providing between four and nineteen options," including some sexually suggestive answers. (Id. at p. 1121.)[11] The profile at issue included the plaintiff's home address and telephone number, causing the plaintiff to receive sexually explicit and threatening messages and calls. (Id. at pp. 1120-1121.) The Ninth Circuit in Carafano held the defendant could not be considered an information content provider and thus was immune under the CDA. (Carafano, supra, 339 F.3d at pp. 1124-1125.) ... Doubtless, the questionnaire facilitated the expression of information by individual users. However, the selection of the content was left exclusively to the user. The actual profile `information' consisted of the particular options chosen and the additional essay answers provided. [Defendant] was not responsible, even in part, for associating certain multiple choice responses with a set of physical characteristics, a group of essay answers and a photograph. [Defendant] cannot be considered an `information content provider' under the statute because no profile has any content until a user actively creates it." (Ibid.)
  • Batzel v. Smith, 333 F.3d 1018, 1033 (9th Cir. 2003) "the party responsible for putting information online may be subject to liability, even if the information originated with a user"
  • Green v. America Online, 318 F.3d 465, 470-71 (3d Cir. 2003) ("There is no dispute that . . . the relevant content originated not from AOL but from another [ICP] . . . . There is no real dispute that Green's fundamental tort claim is that AOL was negligent in promulgating harmful content and in failing to address certain harmful content on its network." (internal quotation marks omitted))

District Courts

  • Jones v. DIRTY WORLD ENTERTAINMENT RECORDINGS, LLC, Dist. Court, ED Kentucky 2013
  • S.C. v. Dirty World, LLC, No. 11-CV-00392, 2012 WL 3335284, at *5 (W.D. Mo. Mar. 12, 2012) (distinguishing facts of case from this matter because there "[d]efendants neither adopted or encouraged further development of the post")
  • Hare v. Richie, Civil Action No. ELH-11-3488, 2012 WL 3773116, at *19 (D. Md. Aug. 29, 2012) (noting that "the appellate case law regarding § 230(c)(1) contemplates that a website operator may be deprived of immunity if it `designed its website to be a portal for defamatory material.'") (quoting Johnson v. Arden, 614 F.3d 785, 792 (8th Cir. 2010))
  • Doctor's Assoc., Inc. v. QIP Holder LLC, Civil Action No. 3:06-cv-1710 (VLB), 2010 WL 669870, at *24 (D. Conn. Feb. 19, 2010) (denying motion for summary judgment because defendants may "have gone further and actively participated in creating or developing the third-party content submitted to the [defendants'] website")
  • Swift v. Zynga Game Network, Inc., No. C 09-05443 SBA, 2010 WL 4569889 at *5 (N.D.Cal. Nov. 3, 2010) if an interactive computer service provider "materially contribut[es]" to the alleged illegal content, it is deemed as having developed the information and acted as an information content provider that is not entitled to the CDA's general immunity provision.
  • Certain Approval Programs, L.L.C. v. Xcentric Ventures L.L.C., No. CV08-1608-PHX-NVW, 2009 WL 596582, at *1-3 (D. Ariz. Mar. 9, 2009) (denying motion to dismiss because plaintiffs' allegations that defendants "actively solicit defamatory content from third parties and directly encourage the use of hyperbole and exaggeration" to maximize marketability of false reports make it plausible that defendants are "information content provider" under the CDA)
  • MCW, Inc. v. Badbusinessbureau.com, L.L.C., No. Civ. A.3:02-CV-2727-G, 2004 WL 833595, at *8 (N.D. Tex. April 19, 2004) ("Section 230(c) immunity is not so broad as to extend to an interactive computer service that goes beyond the traditional publisher's role and takes an active role in creating or developing the content at issue."

State Courts

  • People v. BOLLAERT, Cal: Court of Appeal, 4th Appellate Dist., 1st Div. 2016 ("Under the CDA, however, an interactive computer service likewise loses its immunity if it also functions as an "information content provider" for the portion of the statement or publication at issue. " - "Here, the evidence shows that like the Web site in Roommates, Bollaert created UGotPosted.com so that it forced users to answer a series of questions with the damaging content in order to create an account and post photographs. That content—full names, locations, and Facebook links, as well as the nude photographs themselves—exposed the victims' personal identifying information and violated their privacy rights. As in Roommates, but unlike Carafano or Zeran,Bollaert's Web site was "designed to solicit" (Roommates, supra, 521 F.3d at p. 1170, italics added) content that was unlawful, demonstrating that Bollaert's actions were not neutral, but rather materially contributed to the illegality of the content and the privacy invasions suffered by the victims. In that way, he developed in part the content, taking him outside the scope of CDA immunity.")
  • Hill v. Stubhub, Inc., 727 S.E.2d 550, 558 (N.C. Ct. App. 2012) (noting that CDA analysis by this Court in this matter is "similar to that deemed appropriate in Accusearch and Roommates.");
  • Woodhull v. Meinel, 202 P.3d 126, 133-34 (N.M. Ct. App. 2008) (reversing grant of summary judgment because defendant requested potentially defamatory material and contributed her own thoughts to the overall post).
  • Doe II v. MySpace Inc., supra, 175 Cal.App.4th at p. 568.

However, encouraging Defamatory Remarks is not sufficient to defeat CDA immunity.

  • DiMeo v. Max, 433 F. Supp. 2d 523, 530-31 (E.D. Pa. 2006) (holding that Tucker Max, the proprietor of a website chronicling his efforts to "`be a celebrity that gets paid to get drunk, act like an asshole, and get drunk some more," and hosting message boards containing allegedly defamatory material about plaintiff, was entitled to § 230(c)(1) immunity), aff'd, 248 F. App`x 280, 281 (3d Cir. 2007).
  • Cf. Global Royalties, Ltd. v. Xcentric Ventures, LLC, 544 F. Supp. 2d 929, 933 (D. Ariz. 2008) (holding that operator of consumer review website entitled "Ripoff Report" was entitled to § 230(c)(1) immunity and stating that, although it was "obvious that a website entitled Ripoff Report encourages the publication of defamatory content," there was "no authority for the proposition that this makes the website operator responsible, in whole or in part, for the `creation or development' of every post on the site.").;
  • S.C. v. Dirty World, LLC, No. 11-CV-392-DW, 2012 WL 3335284 (W.D. Mo. Mar. 12, 2012)

Interactive Service may be producer of some content, host of other content

Liability Not Based on Third Party Content

  • AIRBNB, INC. v. City and County of San Francisco, Dist. Court, ND California 2016 (no CDA s 230(c) immunity where local regulation prohibits the collection of booking fees for unregistered rental properties; liability is based on action of the collection of booking fees and not on third party content on the website)
  • CYBERSITTER, LLC v. Google Inc., 905 F. Supp. 2d 1080 - Dist. Court, CD California 2012 (Rule 12(c) Sec. 230(c)(1) motion to dismiss where plaintiff alleges that Defendant Google engaged in trademark infringement by allowing others to advertise using Plaintiff's trademark)
  • City of Chicago, Ill. v. Stubhub!, Inc., 624 F.3d 363, 366 (7th Cir. 2010)(rejecting Section 230(c) challenge to municipal tax on Internet auction sites).
  • Barnes, 570 F.3d at 1107(denying preemption of promissory estoppel claim relating to online postings because "Barnes does not seek to hold Yahoo liable as a publisher or speaker of third-party content, but rather as the counter-party to a contract")
  • Internet Brands, 824 F.3d at 851 (denying preemption of duty to warn relating to defendant's online practices)

(3) whether Plaintiff's claims seek to treat Defendant as a publisher or speaker of third party content. (Cause of Action)

Publisher

Editor

"an interactive service provider who solicits, pays for, edits, and generally maintains active control over the content of its website may continue to assert immunity from liability." [Nasser EDVA 2012] [Green] "[A]n editor’s minor changes to the spelling, grammar and length of third-party content do not strip him of section 230 immunity." Batzel, pp. 3461-64, 9th Cir. 2003

  • FTC v. LeadClick Media, LLC, 838 F.3d 158, 174 (2d Cir. 2016) qualifying defendants are protected from liability predicated on their "exercise of a publisher's traditional editorial functions—such as deciding whether to publish, withdraw, postpone, or alter content" that they did not themselves create. 
  • Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12, 21(1st Cir. 2016)  decisions as to the "structure and operation" of a website also fall within Section 230(c)(1)'s protection
    • decisions regarding the “structure and operation of [a] website” – such as “permitt[ing] users to register under multiple screen names” and other decisions regarding “features that are part and parcel of the overall design and operation of the website” – “reflect choices about what content can appear on the website and in what form” and thus “fall within the purview of traditional publisher functions.” Id. at 20-21.
  • Ricci v. Teamsters Union Local 456, 781 F.3d 25, 28 (2d Cir. 2015).
  • Klayman v. Zuckerberg, 753 F.3d 1354, 1359 ("Klayman II") (D.C. Cir. 2014)
  • Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 257-258 (4th Cir. 2009) (plaintiff required to plead facts that the defendant performed something more than its traditional editorial function)
  • Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir. 2009) (finding that it is an editorial function to decide "whether to publish or to withdraw from publication third-party content").
  • Fair Housing Council of San Fernando Valley v. Roommates. Com, LLC, 521 F.3d 1157, 1170-71 (9th Cir. 2008) ("any activity that can be boiled down to deciding whether to exclude material that third parties seek to post online is perforce immune under § 230")
  • Batzel v. Smith, 333 F.3d 1018, 1030 (9th Cir. 2003) (finding that it is an editorial function to "choose among preferred material");
  • Carafano, (9th Cir. 2003) ("[S]o long as a third party willingly provides the essential published content, the interactive provider receives full immunity regardless of the specific editing or selection process.")
  • Green v. Am. Online, 318 F.3d 465, 471 (3d Cir. 2003) (The Third Circuit has held the CDA immunizes traditional publisher conduct, such as "deciding whether to publish, withdraw, or alter content.")
  • Merritt v. LEXIS NEXIS SCREENING SOLUTIONS, INC., Dist. Court, ED Michigan 2013 ('The Communications Decency Act ("CDA"), 47 U.S.C. § 230(c)(1), "precludes courts from entertaining claims that would place a computer service provider in a publisher's role," and therefore bars "lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions — such as deciding whether to publish, withdraw, postpone, or alter content."')
  • Mmubango v. Google, Inc., CIV. A. 12-1300, 2013 WL 664231, at *3 (E.D. Pa. Feb. 22, 2013) (citing Green, 318 F.3d at 471) ("such decisions would include deciding whether to provide access to third-party content or whether to delete the content from its archival or cache.")
  • Asia Econ. Inst. v. Xcentric Ventures LLC, CV 10-01360, 2011 WL 2469822, at *6 (C.D. Cal. May 4, 2011) (finding that alleged manipulation of HMTL code to make certain third-party reviews "highly visible and influential in Google search results" did not render the defendants "information content providers" because "[i]ncreasing the visibility of a statement is not tantamount to altering its message")
  • Rosetta Stone Ltd (EDVA 2010) ("The user's decision to click on a Sponsored Link-the act that triggers the third party advertiser's payment to Google-is in fact driven by content provided by the advertiser. Rosetta Stone acknowledges that third party advertisers are the ones who select the keyword terms and create the content for the Sponsored Links appearing on Google's search results page. As a provider of online advertising space, Google simply assists third party advertisers in refining their selected keyword terms, which in turn trigger the appropriate Sponsored Links. By making available keyword tools and providing advertisers the ability to refine their keyword term selection, Google does not create the Sponsored Link contents but merely exercises editorial discretion.")
  • Zeran v. American Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997) cert denied 524 US 9.37 [1998] ("lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions-such as deciding whether to publish, withdraw, postpone or alter content-are barred.")
  • Ben Ezra, Weinstein, and Co., Inc. v. AOL (Sec. 230 clearly "forbids the imposition of publisher liability on a service provider for the exercise of its editorial and self-regulatory functions.");
  • Braverman v. YELP, INC., 2013 NY Slip Op 31407 - NY: Supreme Court 2013 ("Yelp's alleged act of filtering out positive reviews does not make Yelp the creator or developer of the alleged defamatory reviews. Yelp's choice to publish certain reviews — whether positive or negative — is an exercise of a publisher's traditional editorial function protected by the CDA.")
  • Shiamili v. Real Estate Group of New York, inc., 68 AD3d 581 [1st dept, 2009]

Editor Liability for Selecting Content

  • Klayman v. Zuckerberg, 753 F.3d 1354, 1359 ("Klayman II") (D.C. Cir. 2014) ("[T]he very essence of publishing is making the decision whether to print or retract a given piece of content.")
  • Roommates, 521 F.3d at 1170-71 (noting that section 230(c)(1) applies to “any activity that can be boiled down to deciding whether to exclude material that third parties seek to post online,” and that “determin[ing] whether or not to prevent [the] posting” of material by third parties is “precisely the kind of activity” covered by the statute)
  • "[I]f the editor publishes material that he does not believe was tendered to him for posting online, then he is the one making the affirmative decision to publish, and so he contributes materially to its allegedly unlawful dissemination. He is thus properly deemed a developer and not entitled to CDA immunity. See Batzel, 333 F.3d at 1033" Roommates, p. 3467, 9th Cir. 2008
  • Doe v. MySpace, Inc., 528 F.3d 413, 420 (5th Cir. 2008) (“decisions relating to the monitoring, screening, and deletion of content [are] actions quintessentially related to a publisher’s role”)
  • Batzel v. Smith, 333 F.3d 1018, 1031 (9th Cir. 2003) (“the exclusion of ‘publisher’ liability necessarily precludes liability for exercising the usual prerogative of publishers to choose among proffered material”)

Editor Liability for Deciding Who May Have Accounts

  • Cohen v. FACEBOOK, INC., Dist. Court, ED New York 2017 "Facebook's choices as to who may use its platform are inherently bound up in its decisions as to what may be said on its platform, and so liability imposed based on its failure to remove users would equally "derive[] from [Facebook's] status or conduct as a `publisher or speaker.'".... it is clear that Section 230(c)(1) prevents the necessarily antecedent editorial decision to allow certain parties to post on a given platform, as that decision cannot be meaningfully separated from "choices about what [third party] content can appear on [the platform] and in what form." Fields II, 2016 WL 6822065, at *6 (quoting Backpage.com, 817 F.3d at 20-21)... The essence of the Force Complaint is not that Plaintiffs were harmed by Hamas's ability to obtain Facebook accounts but rather by its use of Facebook for, inter alia, "recruiting, gathering information, planning, inciting, giving instructions for terror attacks, . issu[ing] terroristic threats, . . . [and] intimidating and coerc[ing] civilian populations." ... Said differently, the Force Plaintiffs claim that Facebook contributed to their harm by allowing Hamas to use its platform to post particular offensive content that incited or encouraged those attacks. Facebook's role in publishing that content is thus an essential causal element of the claims in the Force Complaint, and allowing liability to be imposed on that basis would "inherently require[] the court to treat the defendant as the publisher or speaker of content provided by" Hamas. LeadClick Media, 838 F.3d at 175
  • Fields v. Twitter, Inc., ___ F. Supp. 3d ___, No. 16-CV-213, 2016 WL 6822065, at *6 ("Fields II") (N.D. Cal. Nov. 18, 2016) 230(c)(1) covers social media platform's decisions as to who may obtain an account,
    • Although plaintiffs assert that the decision to provide an account to or withhold an account from ISIS is “content-neutral,” they offer no explanation for why this is so and I do not see how this is the case. A policy that selectively prohibits ISIS members from opening accounts would necessarily be content based as Twitter could not possibly identify ISIS members without analyzing some speech, idea or content expressed by the would-be account holder: i.e. “I am associated with ISIS.” The decision to furnish accounts would be content-neutral if Twitter made no attempt to distinguish between users based on content – for example if they prohibited everyone from obtaining an account, or they prohibited every fifth person from obtaining an account. But plaintiffs do not assert that Twitter should shut down its entire site or impose an arbitrary, content-neutral policy. Instead, they ask Twitter to specifically prohibit ISIS members and affiliates from acquiring accounts – a policy that necessarily targets the content, ideas, and affiliations of particular account holders. There is nothing content-neutral about such a policy. Slip at 9.
    • although plaintiffs have carefully restructured their SAC to focus on their provision of accounts theory of liability, at their core, plaintiffs’ allegations are still that Twitter knowingly failed to prevent ISIS from disseminating content through the Twitter platform, not its mere provision of accounts to ISIS. Slip at 10-11.

Failure to Act, Remove Content

Notice:

Unlike the DMCA, providing notice to an ISP does not create an obligation to take down the content nor does it defeat the immunity from liability. [Eckert] [Donato slip at 35-36] The Court in Zeran stated "[i]n light of the vast amount of speech communicated through interactive computer services, these notices could produce an impossible burden for service providers, who would be faced with ceaseless choices of suppressing controversial speech or sustaining prohibitive liability."Zeran v. American Online, Inc., 958 F. Supp. 1124, 1134-36 (E.D. Va. 1997), aff'd 129 F.3d at 333 ("Liability upon notice would defeat the dual purposes advanced by § 230 of the CDA" as it would "reinforce[] service providers' incentives to restrict speech and abstain from self-regulation"; notice-based liability "would provide third parties with a no-cost means to create the basis for future lawsuits.")

Causes of Action

Potential state causes of action, inconsistent with this section, are preempted. [47 U.S.C. § 230(e)(3)]

Negligence:

Intentional Infliction of Emotional Distress:

intentional assault

  • Klayman v. Zuckerberg, 753 F.3d 1354, 1357-60 (D.C. Cir. 2014)

Defamation:

Tortious Interference:

Business Torts:

  • Kimzey v. Yelp Inc., ___ F.Supp.2d ___, 2014 WL 1805551 (W.D. Wash. 2014) (unfair business practices, malicious libel, and libel per se claims barred against website that allowed users to post reviews of businesses).
  • Perfect 10, Inc. v. CCBill, LLC, 488 F.3d 1102, 1108, 1118-19 (9th Cir.2007) (holding that CDA § 230 provided immunity from state unfair competition and false advertising actions)

Sharing Economy :: Regulatory Compliance

  • AIRBNB, INC. v. City and County of San Francisco, Dist. Court, ND California 2016 (no CDA s 230(c) immunity where local regulation prohibits the collection of booking fees for unregistered rental properties; liability is based on action of the collection of booking fees and not on third party content on the website)

Public Nuisance: Dart v. Craigslist, Inc., 665 F.Supp.2d 961, 968-970 (N.D.Ill. 2009) (immunity to public nuisance claims)

Private Nuisance: Prickett v. InfoUSA, Inc., 561 F. Supp. 2d 646, 648, 652 (E.D. Tex. 2006) (invasion of privacy, trespass, private nuisance, and intentional infliction of emotional distress).

Invasion of Privacy: Prickett v. InfoUSA, Inc., 561 F. Supp. 2d 646, 648, 652 (E.D. Tex. 2006) (invasion of privacy, trespass, private nuisance, and intentional infliction of emotional distress).

anti-sex-trafficking laws

  • Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12, 18-24 (1st Cir. 2016).

Trespass: Prickett v. InfoUSA, Inc., 561 F. Supp. 2d 646, 648, 652 (E.D. Tex. 2006) (invasion of privacy, trespass, private nuisance, and intentional infliction of emotional distress).

Liability for Third Party Sale of Illegal or Defective Items

  • Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1262, 1266-68 (W.D. Wash. 2012), the plaintiff was "the second largest online advertising service" in the country, and challenged a Washington state law that made it a felony offense to display content advertising or offering the sexual abuse of a minor. In that circumstance, where the crime expressly consisted of an act of publication, the court had no trouble finding preemption because the state law would necessarily hold Backpage.com liable for publishing advertising content supplied by third parties. Id. at 1273.
  •  Backpage.com, LLC v. Cooper, 939 F. Supp. 2d 805, 816-17 (M.D. Tenn. 2013). The law at issue expressly criminalized the sale of or the offer to sell an advertisement for commercial sexual abuse of a minor.
  • Inman v. Technicolor USA, Inc., No. 11-666, 2011 WL 5829024, at *7 (W.D. Pa. Nov. 18, 2011) (considering sales made by third parties to be information for CDA purposes, and holding that eBay could not be held liable for the plaintiff's purchase of defective vacuum tubes through its website);
  • Gentry, 99 Cal. App. 4th at 820 (dismissing various state law claims arising from the sale of sports memorabilia with faked autographs because the plaintiffs ultimately sought to hold eBay responsible for misinformation originating from others);
  • Stoner v. eBay Inc., No. 305666, 2000 WL 1705637, at *3 (Cal. Super. Ct. Nov. 1, 2000) (rejecting the plaintiff's contention that eBay should be held liable for failing to monitor items sold through its service, such as bootleg sound recordings, since "cases decided under the CDA uniformly have held that notice of postings which indicate illegality does not defeat immunity")

Federal Statutes

Fair Housing Act

State Causes of Action

State Intellectual Property:

Recasting cause of action in order to hold ICS liable for Publishing Third Party Communications

  • Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008) "In MySpace, the Fifth Circuit affirmed the dismissal of negligence and gross negligence claims arising from the sexual assault of the plaintiff by an individual she met via MySpace.com. See id. at 415-18. The plaintiff's allegation that MySpace, Inc. ("MySpace") failed to implement security measures to protect minors was found to be merely another way of claiming that MySpace should be held liable for publishing third-party communications that led to the assault. See id. at 419-20."

Unaffected by CDA 47 U.S.C. § 230(e)(1)-(4)

  • Federal Criminal Laws
    • However, "[a] private party has no right to enforce federal criminal statutes." Balawajder v. Jacobs, 220 F.3d 586, 2000 WL 960065, at *1 (5th Cir. 2000) (citations omitted). Analogously, the United States District Court for the Eastern District of Texas has examined § 230(e)(1) and found that "Congress decided not to allow private litigants to bring civil claims based on their own beliefs that a service provider's actions violated the criminal laws." Doe v. Bates, No. 5:05-CV-91-DF-CMC, 2006 WL 3813758, at *5, 22 (E.D. Tex. Dec. 27, 2006). In Bates, all of the plaintiffs' claims against Yahoo! Inc. ("Yahoo) were dismissed pursuant to § 230 notwithstanding their allegation that Yahoo violated a federal criminal statute by knowingly profiting from the trafficking of child pornography. See id. at *2-5, 20-22. Several opinions are in accord with Bates. See, e.g., Obado, 2014 WL 3778261, at *8 ("[T]he CDA exception for federal criminal statutes applies to government prosecutions, not to civil private rights of action . . . ."); Village Voice Media Holdings, LLC, 809 F. Supp. 2d at 1055-56 (the illegal or highly offensive nature of website content does not alter the controlling determination of whether the information was created by an information content provider other than the defendant); Dart v. Craigslist, Inc., 665 F. Supp. 2d 961, 965 n.6 (N.D. Ill. 2009) (holding that the complaint's reference to a criminal statute did not bring a nuisance cause of action within the statutory exception to CDA immunity provided under § 230(e)(1)); GoDaddy.com, LLC v. Toups, 429 S.W.3d 752, 760 (Tex. App. 2014) (finding that § 230 affords interactive computer service providers immunity from civil liability even if the posted content is illegal or forms the basis of a criminal prosecution).
  • intellectual property law [47 U.S.C. § 230(e)(2)]
  • State law consistent with s 230
  • Electronic Communications Privacy Act. [47 U.S.C. § 230(e)(4)]

Extraterritorial Application

Cohen v. FACEBOOK, INC., Dist. Court, ED New York 2017 (plaintiffs who object to FB allowing terrorists to use platform to further their aims argue that Sec. 230 should not be applied extraterritorially. The court concludes that the focus of Sec. 230 is immunity, that the relevant lication is where the grant of immunity is applied, and that is the situs of the litigation. "Given the statutory focus on limiting liability, however, the location of the relevant "territorial events" or "relationships" cannot be the place in which the claims arise but instead must be where redress is sought and immunity is needed. With this in mind, the court concludes that the Force Action does not require an impermissible extraterritorial application of Section 230(c)(1). As the situs of the litigation is New York, the relevant "territorial events or relationships" occur domestically. Accordingly, the court rejects the Force Plaintiff's argument that Facebook should be denied immunity under Section 230(c)(1).")

Sec. 230 and FCC Authority

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