April 09, 2006
Database Publisher Gets 230 Defense--Prickett v. infoUSA
By Eric Goldman
Prickett v. infoUSA, Inc., 2006 WL 887431 (E.D. Tex. Mar. 30, 2006)
infoUSA publishes a variety of factual databases, including a directory of businesses. Among other data collection techniques, infoUSA permits anyone to submit directory listings through a web form. The form asks submitters to fill in certain fields and gives a drop-down menu for purposes of characterizing the business' industry. infoUSA claims to take various steps to confirm the data's accuracy. infoUSA then syndicates its business directory data to third party websites (such as Yahoo and SBC, both defendants in this case) for a fee.
In a fact pattern reminiscent of Zeran, an anonymous actor uses infoUSA's form to submit false information about Prickett and his wife. The information indicates that Prickett is in the adult entertainment business and his wife is in the lingerie business.
For reasons that are unclear to me, but may be better understood by Texans, the publication of this information causes members of the general public to engage in a campaign of harassment against Prickett and his wife. They are subjected to obscene, harassing and threatening phone calls. They have strange visitors to their house (including a visitor who takes care of some personal business on their property). And, they are reported anonymously to Child Protective Services--an extremely cruel "prank" if unwarranted because the resulting investigation is terrifying to any parent.
(Given the relatively tame data submitted to infoUSA, especially in comparison with the horrendous postings in Zeran, my instincts tell me that not all of these attacks against Prickett and his wife were prompted solely by the web publication of data in infoUSA's database. However, the court apparently stipulates causality for purposes of this case).
So, to be clear, the data flow goes as follows:
Anonymous submitter => infoUSA => Yahoo and SBC => criminal/tortious actors => Prickett and his family
Prickett and his wife sue infoUSA, Yahoo and SBC for defamation, invasion of privacy, trespass/nuisance, negligence and intentional infliction of emotional distress. infoUSA and SBC defend on 47 USC 230 (Yahoo was dismissed last year).
On its face, the plaintiffs' claims are covered by 230. infoUSA published the data submitted by the anonymous submitter, and SBC published the data submitted by infoUSA--so both are publishing data from a third party. As a result, presumptively the plaintiffs can go after the beginning and end of the data chain (the submitter and the criminal/tortious users), but everyone in between should be insulated by 230.
To get around 230, the plaintiffs try 3 arguments:
1) infoUSA populated the data in the pull-down menus. The court rejects this argument by citing to Carafano and Roommate.com.
2) infoUSA purports to confirm the data's accuracy, which the plaintiffs argue convert infoUSA into the data provider. The court, citing to Barnes, notes that confirming data accuracy is exactly what publishers do, so this only solidifies infoUSA's eligibility for 230.
3) infoUSA syndicates the data for a profit. I can't recall a plaintiff raising this syndication argument before, so I think this is a new argument. The court, however, rejects the argument flatly, saying that 230 protects infoUSA from liability for third party data, regardless of what infoUSA does to make money from the data. (cite to Carafano). The data came from a third party, so infoUSA is off the hook.
In an interesting footnote, the plaintiffs found some of infoUSA's marketing collateral where infoUSA described itself as a "content provider." The plaintiffs try to use this as an admission, but the court rightly deems this irrelevant to the statutory inquiry.
Thus, the plaintiffs' effort to get around 230 fails, and the court grants infoUSA's motion for summary judgment. The court also dismisses SBC from the case for the plaintiffs' failure to respond to the motion, so the case appears to be over. This result is not surprising, as the court correctly applied the extensive and fairly clear defense-favorable precedent. Indeed, with such weak arguments to get around 230, I do not understand why the plaintiffs wasted their time and money.
Interestingly, despite the strong factual parallels to Zeran, the court doesn't cite to Zeran once. If nothing else, this shows how much defense-favorable precedent has developed in the past 9 years; there are now plenty of cases to cite beyond Zeran.
Posted by Eric at April 9, 2006 12:36 PM | Derivative Liability