Yahoo Not Civilly Liable for User-Disseminated Child Porn–Doe v. Bates
By Eric Goldman
Doe v. Bates, No. 5:05CV91 (E.D. Tex. Jan. 18, 2006)
The facts of this case are virtually identical to the Doe v. AOL case from the late 1990s. In this case, Yahoo provided email and web hosting services to a child pornography ring called Candyland. Photos of the plaintiff were illegally distributed via this ring. The plaintiff sued Yahoo for negligence, emotional distress, invasion of privacy and civil conspiracy. Yahoo moved to dismiss the complaint per 47 USC 230. In this ruling, the magistrate grants Yahoo’s motion with prejudice, ending the case.
The Plaintiff’s Arguments
To get around the obvious 230 problems, the plaintiff tried a number of tricks. First, the plaintiff claimed that it needed discovery to see if there were facts that would allow allegations that survived Yahoo’s 12(b)(6) motion. However, the magistrate rejects the request, saying that no set of discoverable facts would enable plaintiff to survive the 12(b)(6). Plus, 230 protects Yahoo not only from liability but also from burdensome litigation, so the court isn’t willing to tolerate a fishing expedition.
Next, trying to get some play from some very unfortunate and gratuitous dicta in the 7th Circuit Doe v. GTE, the plaintiff argues that 230(c)(1) acts as a definitions section for the real statutory immunity contained in 230(c)(2). The magistrate rightly rejects this argument for a number of reasons–the most compelling of which is that dozens of courts, including at least 4 federal circuits, have found that 230(c)(1) is an operative immunity provision, while the Doe v. GTE language was just dicta.
The plaintiff then argued that Yahoo was responsible for the content because it formatted/organized the photos and put ads on the pages. However, to survive the motion to dismiss, the plaintiff had to allege that Yahoo contributed to the creation/development of the photos themselves. But the plaintiff alleged that Doe’s neighbor took and uploaded the photo. Thus, the court says that it is irrelevant if Yahoo enlarged or modified the photos–the photos still would be provided by another information content provider (the neighbor). As the court says:
“The case law confirms that the immunity analysis turns on who was responsible for the specific harmful material at issue, not on whether the service provider was responsible for the general features and mechanisms of the service or other content (such as advertisements) that might also have appeared on the service.”
The plaintiff also tried the tired argument that it just wants to hold Yahoo liable as a distributor, not a publisher. I hope the California Supreme Court buries this argument in Barrett v. Rosenthal so that courts won’t have to repeatedly reject this argument in every single case. Ironically, here, the plaintiff’s complaint specifically alleges that the photos were published and sought an injunction against publication. Note to plaintiffs: if you want to try the (likely futile) distributor theory to avoid 230, try to avoid using the word publication.
The plaintiff’s final argument is that 230 doesn’t apply because this lawsuit is an enforcement of a federal criminal law (in this case, the anti-child porn laws broken by the distribution of these photos). Per 230(e)(1), 230(c) does not apply to enforcements of federal criminal law. The magistrate says that this is the first time a plaintiff has argued that its civil claim can fit within that exclusion. I think this is correct; even the very similar Doe v. AOL case dealt with violations of state anti-child porn laws, not federal laws. Nevertheless, the magistrate rejects the argument based on the statute’s use of the words “enforcement” and “criminal,” both of which suggest that Congress was not trying to preserve civil claims.
This case is a nice win for Yahoo and for 230 defendants. In particular, I believe this is the first case to really grapple with a plaintiff’s request to survive a 12(b)(6) motion by begging for a fishing expedition to find adverse facts. If plaintiffs could avoid a 12(b)(6), then they will have plenty of room to extort settlements as the price to avoid expensive discovery. This ruling gives some extra support to end the case at inception.
This case is also important because it shut down the possible hole that would allow civil claims to fit under 230(e)(1)’s exclusion for federal criminal law enforcement. I had assumed no such hole existed based on Doe v. AOL’s application of 230 to the child porn-related claims, but it’s nice to get confirmation.