47 USC 230 Year-in-Review (and Landry-Bell v. Various, Another Defense Win)

By Eric Goldman

Landry-Bell v. Various

December was a busy month for 47 USC 230 cases (with at least 4 substantive rulings plus 1 procedural ruling). The latest case to emerge from the year-end rush is Landry-Bell v. Various, Inc., 2005 US Dist LEXIS 38741 (W.D. La. Dec, 27, 2005).

Landry-Bell is a lot like the recent Barnes case. Allegedly, an ex-boyfriend created a user profile saying that Landry-Bell would like to engage in (as the court puts it delicately) “lewd and obscene acts of perversion.” The profile was posted to Various’ adultfriendfinder.com web service (which bills itself as “The World’s Largest Sex & Swinger Personals Site”–sorry, I can’t put a link to them–probably not office-safe by most people’s standards).

Landry-Bell sued both the ex-boyfriend and Various for invasion of privacy, defamation and intentional infliction of emotional distress. Various moved to dismiss under 230.

On its face, this is a textbook 230 case. User creates profile; web service publish content; case should be over. Landry-Bell tries to get around the defense using arguments similar to the recent Hy Cite case, claiming that Various was a content originator because Various:

* submitted the content to search engines

* added descriptors, such as “horny,” to the content

* displayed titles

* organized the content by geography

* provided an internal search engine of profiles

* provided a mechanism to input data, and asking questions that elicit information from users

* performed internal computer testing to “determining purity and compatibility scores”

None of these allegations end up helping Landry-Bell. Various’ user is still the content source even if these allegations are true, and Various’ role in processing/managing that content is indistinguishable from the facts in Carafano (and, for that matter, Barnes). 230 shields all of this behavior, and the magistrate recommends granting the motion to dismiss.


The flurry of activity in December prompts me to reflect on the tally of 230 cases for the year. I maintain a comprehensive and regularly-updated list of 47 USC 230 cases here, but let’s recap just the 2005 cases:

Defense Wins: Associated Bank v. EarthLink; Austin v. CrystalTech; Barnes v. Yahoo; Donato v. Moldow; Faegre & Benson v. Purdy; International Padi, Inc. v. Diverlink; Landry-Bell v. Various; Roskowski v. Corvallis Police Officers’ Association; Whitney Information Network v. Xcentric Ventures; Winter v. Bassett

Plaintiff Wins: Hy Cite v. badbusinessbureau.com

Note that this scorecard excludes procedural cases, like those where a state court defendant invokes 230 and then tries to remove the case to federal court. See, e.g., Cisneros v. Sanchez, 2005 WL 3312631 (S.D. Tex. Dec. 7, 2005) (saying that 230 does not give a basis to remove to federal court). It also excludes dicta and non-substantive references, like Huntingdon Life Sciences v. Stop Huntingdon Animal Cruelty USA (with a funky footnote pondering if a website could be an interactive computer service–even though this question has been well-litigated by several other cases). Finally, it excludes resolutions not based on 230, such as the dismissal of Batzel v. Smith for procedural reasons.

So, according to my tally, in 2005 there were 10 defense wins under 230 and 1 plaintiff win. And even the sole plaintiff win wasn’t dispositive–the court refused to grant a motion to dismiss based on the factual allegations, but the 230 defense could still apply after discovery.

While the overwhelming success of defendants claiming 230 leaves little room for plaintiffs, the statistics are partially overshadowed by the pending California Supreme Court opinion in Barrett v. Rosenthal. That case is expected to squarely confront if 230 leaves open distributor liability. If the CA Supreme Court says that it does, then I have 2 predictions:

1) A brawl will ensue when defense interests try to overturn the case in Congress. The defense interests (eBay, Google, AOL, etc.) have some legislative influence (much more so than in 1996 when the safe harbor was enacted), and getting rid of a major contrary precedent should be a high lobbying priority. On the other side, the plaintiff-side interests are less coordinated but many plaintiffs (and several prominent commentators) would love to see the 47 USC 230 defense scaled back. I would expect to see some sparks fly between these groups in Congress.

2) We will see an epidemic of lawsuits against intermediaries. Right now, the bright-line rule of 230 surely discourages many plaintiffs from even bothering to chase intermediaries; but if there’s hope that the deep pockets are on the hook, the frenzy should be breathtaking.

UPDATE: In a surprise, the judge in the Landry-Bell case rejected the magistrate’s report. In the substantive explanation, the judge said:

“Although the complaint is scant in details and allegations that would result in liability for Various under the Communications Decency Act, 47 U.S.C. § 230, the allegations are sufficient, because of our notice pleading regime, to suffice under Rule 12(b)(6). See Gen. Elec. Capital Corp. v. Posey, 415 F.3d 391 (5th Cir.2005). Believing that greater factual development as to the actions of Various is necessary, this court rejects the Report and Recommendation.” 2006 WL 273599 (W.D. La. Feb. 2, 2006)

Let’s hope the judge didn’t just waste everyone’s time.