May 13, 2005
Yahoo Sued for Allowing Child Porn Operators to Use Site Tools
Yahoo has been sued for allowing child pornographers to communicate with each other using hosting and messaging services from Yahoo Groups.
Prediction: Yahoo will win this case on a motion to dismiss based on 47 USC 230. Why? There is simply no way for the plaintiffs to state facts here that avoid the 230 preemption. We have already seen 230 preempt a civil claim related to child pornography. See Doe v. AOL. Attempts to plead the cause of action as negligence to get around 230 have routinely failed. See, e.g., Doe, Zeran.
On that front, John Morris of CDT is quoted as saying “Unless the plaintiff has very concrete proof that Yahoo knew that this group contained child pornography, it's very likely that Yahoo will not be liable.” This is simply incorrect. 230 should apply regardless of Yahoo’s scienter because knowledge would only reinforce that Yahoo made a protected editorial decision; see, e.g., Zeran. The very limited number of contrary cases (such as the Barrett case) would apply a negligence standard, so even then “concrete proof” of knowledge would not be required.
UPDATE: In a related development, AP reports that Yahoo is shutting down some chat rooms and putatively limiting kids' access to others.
Posted by Eric at May 13, 2005 12:55 PM | Derivative Liability