Catching Up on Section 230 Cases From the Past 18 Months

Photo credit: enameled house number two hundred and thirty // ShutterStock

Photo credit: enameled house number two hundred and thirty // ShutterStock

I try to blog every Section 230 case I see. However, over the past year and a half, I’ve collected a few Section 230 cases that I had hoped to blog but that fell through the cracks for one reason or another. So here’s a “quick” survey of some of the Section 230 cases that I’ve backlogged:

Obado v. Magedson, 2014 WL 3778261 (D. N.J. July 31, 2014). The Complaint. (citations omitted)

Even though it’s a pro se case, this is a pretty significant Section 230 ruling, and it deserved its own blog post. However, it came out while I was on vacation, and I simply never got the time to catch up with it.

The court first identifies that the plaintiff was trying to hold all of the defendants liable for a third party’s pseudonymous posts:

each of Plaintiff’s seventeen claims “treat” Defendants as the “publisher” and not the creator of the alleged defamatory content. Plaintiff alleges that Defendants “published” and “distributed” the allegedly defamatory blogs posted on and other sites through “internet search results.” It is not alleged (nor could it be) that any Defendants created this content. Plaintiff is simply seeking to hold the various Defendants liable for “publishing” such content in its search engine results or otherwise providing access to such results. In each instance raised by Plaintiff’s tort or federal claims, Defendants either archived or simply provided access to content that was created by third parties. The allegedly defamatory statements were created by “Mama Duka” and Diop Kamau. Plaintiff has not alleged that Defendants in any way participated in the creation of the content of the blogs, or altered the content of the blogs in any way. Clearly, § 230 provides immunity for service providers like Defendants on exactly the claims that Plaintiff alleges here.

The court says that Section 230 applies even if the defendants manipulated their own search results:

any claims premised on any posting or alleged manipulation of search results to favor the alleged defamatory content about Plaintiff are not actionable under § 230. Further, even assuming that Defendants did selectively choose how to display certain search results, these types of editorial functions are still protected by § 230….In reality, the results of a search engine query are determined by an underlying algorithm. None of the relevant Defendants used any sort of unlawful criteria to limit the scope of searches conducted on them; “[t]herefore, such search engines play no part in the ‘development’ of the unlawful searches” and are acting purely as an interactive computer service. [cite to]

The plaintiff unsuccessfully tried the failure-to-enforce-TOS workaround:

Plaintiff also asserts that Defendants have failed to remove the alleged defamatory blogs in violation of each Defendant’s terms of use and privacy policies. However, § 230 immunity extends to the service provider’s decisions about how to treat potentially objectionable material. As the Third Circuit has explained, § 230 “specifically proscribes liability” in situations where an interactive service provider makes a decisions “relating to the monitoring, screening, and deletion of content from its network—actions quintessentially related to a publisher’s role.” Defendants cannot be held liable for failing to withdraw any of the alleged defamatory statements, just as they cannot be found liable for “deciding” to publish any such statements through its search results.

See also my article about Section 230(c)(2).

The court rejects an attempt to impose liability for search results snippets:

Plaintiff also argues that Defendants displayed through search results certain “defamatory search terms” like “Dennis Obado and criminal” or posted allegedly defamatory images with Plaintiff’s name. As Plaintiff himself has alleged, these images at issue originate from third-party websites on the Internet which are captured by an algorithm used by the search engine, which uses neutral and objective criteria. Significantly, this means that the images and links displayed in the search results simply point to content generated by third parties. Thus, Plaintiff’s allegations that certain search terms or images appear in response to a user-generated search for “Dennis Obado” into a search engine fails to establish any sort of liability for Defendants. These results are simply derived from third-party websites, based on information provided by an “information content provider.” The linking, displaying, or posting of this material by Defendants falls within CDA immunity.

Citing one of the Stayart cases, the court further says search engine autocomplete functions qualify for Section 230:

suggested search terms auto-generated by a search engine do not remove that search engine from the CDA’s broad protection because such auto-generated terms “indicates only that other websites and users have connected plaintiff’s name” with certain terms.

The court then quickly rejected a variety of kitchen sink arguments:

* Section 230 applies even if the third party content was illegal fighting words or hate speech.
* His attempt to assert a publicity rights claim failed on its merits: “The mere appearance of Plaintiff’s name or image as part of the search results displayed in response to a user-generated query does not mean that the relevant company used Plaintiff’ name for advertising or trade purposes…. the conduct that Plaintiff alleges infringed on his right to publicity is nothing more than the ordinary “dissemination of news or information” that cannot give right to a right of publicity claim….To find otherwise would allow any Internet search engine to face a claim from anyone whose name or image appears on the Internet in a way that person does not like. This is exactly what § 230 immunity tried to prevent.” This blocks the backdoor “right to be forgotten” effort.
* the promissory estoppel argument failed on its merits because there was no legally enforceable promise to the plaintiff.
* the criminal conspiracy claims because Section 230 preempts civil claims based on federal criminal law.

The court summarizes by emphasizing that it understood the plaintiff was stretching other legal doctrines to work around Section 230:

Plaintiff has attempted to phrase his allegations and arguments in a way to avoid the reach of § 230. These allegations, however, do not distinguish the complained-of actions of Defendants from any other website that has published content that led to an innocent person’s injury. Congress has made the policy decision to hold such websites immune from suits arising from these injures. Try as Plaintiff may, this is a defamation suit at its core—not a copyright suit or civil rights case. It should be noted, however, that Plaintiff is not entirely without recourse. He may bring suit against the actual bloggers who wrote these defamatory posts.

The court concludes:

In sum, the CDA effectively works to immunize parties like the Defendants from claims that they displayed information from third parties that may depict a party in an unfavorable light. This case, quite simply, attempts to hold Defendants accountable for the publication of allegedly defamatory blog postings by third-parties. Accordingly, Defendants are entitled to immunity from all of Plaintiff’s claims—state and federal—under § 230 of the CDA.

Overall, a nice ruling.

Joude v. WordPress Foundation, 2014 WL 3107441 (N.D. Cal. July 3, 2014) (citations omitted).

Plaintiffs allege misappropriation of likeness, also known as the violation of one’s right of publicity. The right of publicity is intellectual property. Because computer service providers in this circuit are entitled to immunity from state intellectual property claims, including the right of publicity, Automattic enjoys immunity from all state claims treating Automattic as a publisher, including Plaintiffs’ allegation of misappropriation of likeness.

In the follow-up ruling from Sept. 2, 2014, the court denied WordPress a fee shift under the SPEECH Act. Joude v. WordPress Foundation, 2014 WL 4354280 (N.D. Cal. Sept. 2, 2014).

Ohio State University v. Skreened Ltd., 2014 WL 1576882 (S.D. Ohio April 18, 2014). The Complaint.

This is a trademark merchandising case. The defendant unsuccessfully raised a Section 230 defense:

Second, even if Defendants had not forfeited reliance on § 230, they ignore the fact that its immunity provision does not apply in the trademark context or in the context of a state law right of publicity claim. See 47 U.S.C. § 230(e)(2) (“Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.”); 47 U.S.C. § 230(e)(3) (“Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section.”); 47 U.S.C. § 230(e)(4) (“Nothing in this section shall be construed to limit the application of the Electronic Communications Privacy Act of 1986 . . . or any similar State law.”); Almeida v., Inc., 456 F.3d 1316, 1322-324 (11th Cir. 2006); Ford Motor Co. v., Inc., No. 00-CV-71544-DT, 2001 WL 1176319, at *1 (E.D. Mich. Sept. 25, 2001).

The rejection of the publicity rights claim highlights the divergence with the 9th Circuit’s ccBill ruling.

Malibu Media, LLC v. Doe, 2014 WL 1031336 (N.D. Indiana March 17, 2014).

This is one of Malibu Media’s countless copyright infringement lawsuits against Does. This Doe tries a goofy Section 230 defense, and the court apparently doesn’t realize that Section 230 expressly excludes federal copyright infringement claims:

Defendant appears to be arguing that the CDA provides him immunity for any illegal activity done by others using his assigned IP address….In this case, however, Plaintiff is suing Defendant for direct infringement, not for enabling the infringement of others connected to his network. There are no set of facts under which Defendant could prevail using the CDA as a defense.

Moving and Storage, Inc. v. Panayotov, 2014 WL 949830 (D. Mass. March 12, 2014).

This is a bad ruling on a motion to dismiss. The defendants both run the moving company review website and operate a moving company, Xpress Movers. The plaintiffs “allege that the defendants deleted positive customer reviews of the plaintiffs and deleted negative customer reviews of Xpress Movers in order to gain market share, all the while maintaining that the website was neutral in its operation. The plaintiffs assert various tort and statutory claims arising from the alleged conduct, and they also claim that the defendants committed copyright and trademark infringement by using content and logo designs taken from the plaintiffs’ websites on without permission.”

The court says that the plaintiffs are suing the defendants for their first party conduct, not third party content:

The plaintiffs’ claims do not arise from the content of the reviews, whether they be disparaging, laudatory, or neither, but instead, the defendants’ alleged ill-intentioned deletion of positive reviews of the plaintiffs’ moving companies and deletion of negative reviews of their own company, coupled with various representations — that the website offers “accurate” data, that it is “serious about reviews quality,” and that readers “see the most accurate and up to date rating information to base your decision on.” The manner in which the information is presented, or withheld, is the conduct at issue, as well as the allegedly misleading ratings which result from such alleged manipulations. Such conduct provides substantial basis to find that the defendants were developers of the alleged misinformation.

I don’t even know where to begin with this. Let’s just say that this analysis conflicts with a large number of cases, including the subsequent Obado case I just discussed above. The Yelp cases also come to mind, such as Reitv. Yelp.

The court also rejected a 230(c)(2) defense because the plaintiff adequately alleged bad faith.

This ruling would have been a good candidate for an appeal, but the parties settled in October.

Sherman v. Yahoo Inc., 997 F. Supp. 2d 1129 (S.D. Cal. Feb. 3, 2014).

This is a TCPA text message case. Yahoo took an aggressive position that it qualified for Section 230(c)(2) because it sent an initial notification message that included “a link to a help page which, among other things, contain instructions on how to block further messages.” Thus, Yahoo argued, “the notification message at issue makes available the ‘technical means to restrict access’ to messages which plaintiff might deem ‘objectionable.'”

This argument doesn’t go well. The court says “Yahoo! does not block or filter the unidentified third party user’s message to Plaintiff….Here, neither Yahoo! nor the mobile phone user have the opportunity to determine whether the third party message is ‘obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable,’ as required by § 230(c)(2)(A). The Court declines to broadly interpret ‘otherwise objectionable’ material to include any or all information or content.”

In a footnote, the court amplifies: “Unlike Kaspersky, Yahoo! is an internet service provider that sends notification messages to inform recipients of the Yahoo! Messenger service; this is quite distinct from an access software provider that allows users to block or filter messages.”

The court concludes:

the “good samaritan” immunity is inapplicable where Yahoo! did not engage in any form of content analysis of the subject text to identify material that was offensive or harmful prior to the automatic sending of a notification message.

The TCPA’s applicability to text messages deserves a closer look from policy-makers. The TCPA was built to solve a very different problem than text messaging. Still, it’s not hard to see why the court rejected Yahoo’s remarkably expansive interpretation of Section 230(c)(2).

Choyce v. SF Bay Area Independent Media Center, 2013 WL 6234628 (N.D. Cal. Dec. 2, 2013). [citations omitted]

the complaint contains no factual allegations from which it could plausibly be inferred that Layer42 was in any way responsible for putting the material online, except insofar as Layer42 provides Defendant SFBAIMC with internet hosting services. Plaintiff alleges that SFBAIMC, not Layer42, “sponsors and operates” the website where the challenged statements appeared. Plaintiff does not allege that Layer42 plays any role developing or creating content on the Indybay website. As an internet service provider rather than the host of an interactive website, Layer42’s connection to the challenged statements is even more attenuated than in the many cases in which courts held that a website host was shielded from liability by Section 230 of the CDA.

The closest the complaint comes to alleging Layer42’s role in producing the challenged content is by alleging on information and belief that all of the named defendants were “acting as the partner, agents, servants and employees of each other,” by alleging that Defendants all “conspired to” publish the material, and then group-pleading all of its claims against all defendants collectively. This “formulaic recitation” of the elements of agency and conspiracy liability are not well-pled factual allegations entitled to a presumption of truth. See Twombly, 550 U.S. at 555. Indeed, the only factual allegations in the entire complaint that relate specifically to Layer42 is the allegation that it provides internet hosting, connectivity, and infrastructure. That allegation does nothing to establish Layer42’s liability; in fact, all it does is establish its presumptive immunity. The facts alleged in the complaint fail to state a claim for defamation or libel against Defendant

Evans v. Hewlett-Packard Company, 2013 WL 5594717 (N.D. Cal. Oct. 10, 2013). Related blog post.

There does not appear to be any direct Ninth Circuit authority specifically holding that Section 230 preemption is appropriate at the pleading stage. There are, however, several district court decisions holding that evaluating Section 230 immunity was proper at the dismissal stage: Goddard v. Google, 640 F. Supp. 2d 1193, n.5 (N.D. Cal. 2009) (Judge Jeremy Fogel), Holomaxx Techs. v. Microsoft Corp., 783 F. Supp. 2d 1097, 1103 (N.D. Cal. 2011) (Judge Jeremy Fogel), and Gavra v. Google, Inc., No. 5:12-CV-06547, 2013 WL 3788241 (N.D. Cal. July 17, 2013) (Magistrate Judge Paul Grewal). This order joins these decisions in holding that “affirmative defenses routinely serve as a basis for granting Rule 12(b)(6) motions where the defense is apparent from the face of the complaint.”

Russell v. Implode-Explode Heavy Industries Inc., 2013 WL 5276557 (D. Md. Sept. 18, 2013). (citations omitted)

Plaintiffs maintain, however, that IEHI worked with Railey as a content provider because it was “intimately involved in developing and creating the article.” Plaintiffs conclude that “[t]he facts prevent IEHI from simply putting its hands up and blaming an independent blogger.” Plaintiffs assert that Railey received direct input from Krowne, that Marquis performed research and that drafts were exchanged, and IEHI had the last say on what was published. Plaintiffs, however, attempt to hold IEHI liable for decisions related to monitoring and publication of content on its network — “actions quintessentially related to a publisher’s role.”

Nowhere does the record suggest that IEHI contributed to the alleged defamatory piece in a way that rose to the level of an “information content provider” under Section 230. After Russell objected to Railey’s publication of the September 9, 2008 article, which she inadvertently posted, Railey followed up with “additional verifications and revisions” and then posted the final article on September 15, 2008. Indeed, under Section 230(c), “so long as a third party willingly provides the essential published content, the interactive service provider receives full immunity regardless of the specific editing or selection process.” Thus, Railey’s statement that “Mr. Krowne and Randall Marquis of IEHI and Krowne were the editors of the article before it was published” does not defeat IEHI’s immunity under Section 230(c) given the Fourth Circuit’s broad pronouncement in Zeran — and later courts’ acceptance of the standard set forth therein — that “lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions — such as deciding whether to publish, withdraw, postpone or alter content — are barred.” Thus, even assuming Krowne edited or altered the content of the allegedly defamatory article, IEHI would still be immune under the law of the circuit in which this court sits.

The evidence indicates that Krowne was not completely uninvolved with the allegedly defamatory article, but his involvement was limited to editorial work, which is insufficient to transform IEHI into an “information content provider” with respect to the allegedly defamatory September 2008 article. Krowne’s review included “some corrections,” but in large part he thought it was “a solid piece . . . [and did not] . . . suggest [sic] any substantial changes to it.” In Railey’s own words, she “fully researched everything that appeared in both the September 9 draft version and September 15 final version of the article, and both versions included links to supporting materials on which [her] article was based.”…

Plaintiffs point to Fair Hous. Council of San Fernando Valley v., LLC, 521 F.3d 1157, 1164 (9th Cir. 2008), as the leading Ninth Circuit case on the scope of the CDA, but that case involved factual circumstances distinguishable from those here. Whereas the website in arguably required users to input illegal content as a necessary condition of use, there is no evidence on the record that IEHI structured its website to require bloggers or individuals leaving commentaries to input illegal content as a condition of using the Website. Even though Plaintiffs argue that IEHI monitored what Railey wrote about as a blogger, “a service provider’s exercise of its editorial prerogatives as to information from another content provider does not transform the service provider into the content provider under [Section] 230.”

Based on the foregoing, Plaintiffs’ defamation (and libel) claims against IEHI are barred by the CDA.

Stevo Design, Inc. v. SBR Marketing Ltd., 2013 WL 4648581 (D. Nev. August 29, 2013).

This is a weird lawsuit that has produced a number of interesting but possibly dubious rulings. The court’s limited discussion about Section 230:

The notion that SBR “updated” its message board policy to prohibit copyrighted material invites the inference that, prior to this update, SBR’s policy allowed the posting of copyrighted material. Plaintiffs also point out that the title “service plays” refers uniquely to the recommendations of pay-per-view sports analysis services. Taking all inferences in favor of Plaintiffs, then, they have alleged that SBR acted as a “developer” within the meaning of the CDA by promoting the publication of protected “service plays” and thereby contributing to the misappropriation of Plaintiffs’ trade secrets and commercial property.