2H 2016 Quick Links, Part 6 (Section 230)
* Smith v. Alphabet Inc., 2016 WL 3660725 (S.D. Ala. May 23, 2016): “plaintiff’s citation to (and discussion of) § 230 of the CDA in no manner advances his arguments against the corporate defendants inasmuch as it is clear that the Communications Decency Act (“CDA”), 47 U.S.C. § 223, does not provide Smith with a private right of action. Doe v. Egea, 2015 WL 3917112, *2 (S.D. Fla. Jun. 25, 2015).”
* General Steel Domestic Sales LLC v. Chumley, 2016 WL 6441028 (10th Cir. Nov. 1, 2016). Section 230 isn’t an immunity from being sued.
* Porter v. City of Port Orange, 2016 WL 7243095 (M.D. Fla. Dec. 15, 2016):
the Complaint seeks to hold Bodner liable for the publication of the Sanchez Response due to her status as owner of the VCM office. However, the CDA grants immunity to a “provider or user of an interactive computer service” for “any information provided by another information content provider”—that is, information posted by someone else. See 47 U.S.C. § 230(c)(1).
In support of her MTD, Bodner maintains that courts have routinely immunized owners of web sites from liability for third-party postings under § 230(c)(1). Plaintiff counters that Bodner is not a passive host; instead she is a content provider due to her “collaboration” with Defendants to further the Sanchez Response and, therefore, destroyed her § 230 immunity. The Court disagrees with Plaintiff.
Even liberally construed, the Complaint fails to allege facts supporting Plaintiff’s contention. Indeed, nothing in the Complaint can be read to ensnare Bodner in a scheme to perpetuate the Sanchez Response. Importantly, because Sanchez, not Bodner, posted the Sanchez Response, the Court finds that the policy behind the CDA warrants blanketing Bodner with immunity under the CDA at least as to Plaintiff’s defamation claim. See Almeida v. Amazon.com, Inc., 456 F.3d 1316, 1321 (11th Cir. 2006) (interpreting the CDA as having established “broad federal immunity”); see also Regions Bank v. Kaplan, No. 8:12-cv-1837-T-17MAP, 2013 WL 1193831, at *18 (M.D. Fla. Mar. 22, 2013) (stating that “[a] ‘provider’ of an interactive computer service includes websites that host third-party generated content”). As such, Bodner’s MTD with respect to the defamation claim is due to be granted.
* Pagan v. Google Corp., 2016 WL 7187645 (D.N.H. Nov. 15, 2016). “Pagan’s complaint names ‘Google Corporation’ as the defendant and asserts that Google defamed him by publishing false information regarding his criminal record. Specifically, he states that Google published false information labeling him as a convicted sex offender for three counts of rape in New Hampshire. Pagan asserts that the information is incorrect, and he attributes the error to a communication problem in the New Hampshire courts.” Case dismissed per Section 230.
* Peters v. LifeLock Incorporated, 2014 WL 12544495 (D. Ariz. Sept. 19, 2014) (Just showed up in my Westlaw alerts). Section 230 protects email forwarding:
The sole basis for Peters’ defamation claim against Schaan is her forwarding of Jones’ email. Schaan argues the Communications Decency Act (“CDA”), 47 U.S.C. § 230, prevents her from being held liable for forwarding that email. Schaan is correct.
Passed in 1996, the CDA has “been widely and consistently interpreted to confer broad immunity against defamation liability for those who use the Internet to publish information that originated from another source.” Barrett v. Rosenthal, 146 P.3d 510, 513 (Cal. 2006). The portion of the CDA conferring that immunity provides “[n]o … 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). Based on the definition in the CDA, there is no question Jones qualified as an “information content provider.” 47 U.S.C. § 23(f)(3) (defining “information content provider” as “any person … that is responsible … for the creation or development of information”). And while “user” is not defined in the CDA, it “plainly refers to someone who uses something, and the statutory context makes it clear that Congress simply meant someone who uses an interactive computer service.” Barrett, 146 P.3d at 526. In light of this, Schaan was a “user” of an “interactive computer service” when she forwarded Jones’ email. See 47 U.S.C. § 230(f)(2) (defining “interactive computer service”). Put together, these definitions mean Schaan cannot “be treated as the publisher or speaker” of the information contained in Jones’ email. 47 U.S.C. § 230(c)(1). And that means Schaan cannot be liable for defamation based on forwarding Jones’ email. See Peagler v. Phoenix Newspapers, Inc., 560 P.2d 1216, 1222 (Ariz. 1977) (individual liable for defamation if she “publishes a false and defamatory communication”) (emphasis added); 47 U.S.C. § 230(e)(3) (preempting state law inconsistent with CDA).
Peters attempts to avoid this straightforward conclusion by arguing it would frustrate a central purpose of the CDA to read its immunity provision as protecting individuals. But the CDA’s immunity provision explicitly covers any “user of an interactive computer system.” 47 U.S.C. § 230(c)(1) (emphasis added). Peters offers no argument that Schaan does not qualify as a “user” as that term is used in the CDA. Therefore, his policy arguments are unconvincing. See United States v. Aerojet Gen. Corp., 606 F.3d 1142, 1151 (9th Cir. 2010) (rejecting policy argument in light of unambiguous statutory language).
Peters also argues the CDA immunity provision should not apply because Schaan “instigat[ed]” the defamation and committed a “targeted move” by forwarding the email “to the one person she thought could cause the most harm to Peters.” Peters does not explain how, assuming Schaan’s behavior can be described in these terms, that behavior takes her outside the CDA’s immunity. The CDA’s immunity provision does not carve out exceptions for content “instigat[ed]” by another or content that is forwarded in a “targeted move.” To be clear, under the facts alleged in the complaint, Schaan did not generate any defamatory statements herself when she first contacted Jones. Rather, she solicited an email from Jones and then forwarded that email without adding any defamatory statements of her own. If Schaan had added her own defamatory comments, the situation would be different. But she did not. Thus, the CDA immunity provision applies and the defamation claim against Schaan must be dismissed.
* Western Sugar Coop. v. Archer-Daniels-Midland Co., 2015 WL 12683192 (C.D. Cal. Aug. 21, 2015) [this also just showed up in Westlaw]:
SAI argues that even if the Articles constitute commercial speech, SAI is still immune from liability pursuant to the Communications Decency Act (“CDA”), 47 U.S.C. § 230(c).
Section 230 of the CDA immunizes providers of interactive computer services against liability arising from content created by third parties, but only if they “passively display[ ] content that is created entirely by third parties.” Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157, 1162 (9th Cir. 2008). If the information is not provided by another information content provider, then § 230(c) does not confer immunity on the publisher of the information. See Batzel v. Smith, 333 F.3d 1018, 1032 (9th Cir. 2003). The question is whether under the circumstances, “a reasonable person … would conclude that the information was sent [to them] for internet publication.” Id.
An “interactive computer service” is defined as “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….” 47 U.S.C. § 230(f)(2). SAI does not provide evidence that its website or electronic distribution qualifies as a “provider[ ] or user[ ] of an interactive computer service” within the meaning of the CDA. See, e.g., Batzel, 333 F.3d at 1030 (explaining to “benefit from § 230(c) immunity, [the defendant] must first demonstrate that his [n]etwork website and listserv qualify as ‘provider[s] or user[s] of an interactive computer service’ ”) (emphasis in original).
Even if SAI established that it qualifies as a provider or user of an “interactive computer service,” “[i]f information is provided to [SAI] in a capacity unrelated to [its] function as a provider or user of interactive computer services, then there is no reason to protect [it] with the special statutory immunity.” Id. at 1033. The Ninth Circuit has explained that the term “provided” suggests, at least, some active role by the provider in supplying the material to a provider or user of an interactive computer service. See id. at 1032.
SAI provides evidence that it obtained permission to republish the Articles on its website and Newsletter. Evidence that SAI obtained permission to republish the Articles, is not evidence that SAI passively displayed Articles from third parties who actively provided them to SAI in its capacity as a user or provider of interactive computer services. See, e.g., Roommates.Com, 521 F.3d at 1162; Batzel, 333 F.3d at 1032; F.T.C. v. Accusearch Inc., 570 F.3d 1187, 1201 (10th Cir. 2009). The Court therefore finds that SAI is not entitled to immunity under the Communications Decency Act for its republication and dissemination of the Bonvie and McElligott Articles.
Ugh…Section 230 does NOT require “passive display.” [sad face emoji] The parties stipulated a dismissal in November 2015, so this judicial error won’t be fixed.
* Google dropped its lawsuit against Miss. AG Jim Hood and will “collaborate in addressing the harmful consequences of unlawful &/or dangerous online content”. Wendy Davis article. Prior blog post. So who won? Hood withdrew the subpoena, but Google apparently is undertaking new efforts because of the AG’s cajoling.
* Search Engine Land: “A number of attorneys who specialize in online defamation/libel cases have reported to me that Google has recently suspended its longstanding, informal policy of removing URLs from US search results that are specified in duly executed court orders.”