2H 2015 Quick Links, Part 5 (Section 230, Pornography)

Photo credit: 3D Quick Link Crossword // ShutterStock

Photo credit: 3D Quick Link Crossword // ShutterStock

Section 230

* Backpage.com, LLC v. Dart, 2015 WL 7717221 (7th Cir. Nov. 30, 2015)

In his public capacity as a sheriff of a major county (Cook County has a population of more than 5.2 million), Sheriff Dart is not permitted to issue and publicize dire threats against credit card companies that process payments made through Backpage’s website, including threats of prosecution (albeit not by him, but by other enforcement agencies that he urges to proceed against them), in an effort to throttle Backpage….

It might seem that large companies such as Visa and MasterCard would not knuckle under to a sheriff, even the sheriff of a very populous county. That might be true if they derived a very large part of their income from the company that he wanted them to boycott. But they don’t. Backpage’s monthly revenue from ”adult” ads was recently estimated at $9 million and its total revenue in 2014 at $135 million, whereas the combined net revenue of MasterCard and Visa in that year exceeded $22 billion. The revenue they derived from Backpage’s adult ads must have been a small fraction of their overall revenue, especially since not all of Backpage’s ad customers pay for their ads with a MasterCard or Visa credit card. Yet the potential cost to the credit card companies of criminal or civil liability and of negative press had the companies ignored Sheriff Dart’s threats may well have been very high, which would explain their knuckling under to the threats with such alacrity.

* Doe ex rel. Roe v. Backpage.com, LLC, 2015 WL 2340771 (D. Mass. May 15, 2015):

Singly or in the aggregate, the allegedly sordid practices of Backpage identified by amici amount to neither affirmative participation in an illegal venture nor active web content creation. Nothing in the escorts section of Backpage requires users to offer or search for commercial sex with children. The existence of an escorts section in a classified ad service, whatever its social merits, is not illegal. The creation of sponsored ads with excerpts taken from the original posts reflects the illegality (or legality) of the original posts and nothing more. Similarly, the automatic generation of navigational path names that identify the ads as falling within the “escorts” category is not content creation. See Seldon v. Magedson, 2014 WL 1456316, at *5–6 (D. Ariz. April 15, 2014). The stripping of metadata from photographs is a standard practice among Internet service providers. Hosting anonymous users and accepting payments from anonymous sources in Bitcoins, peppercorns, or whatever, might have been made illegal by Congress, but it was not. Backpage’s passivity and imperfect filtering system may be appropriate targets for criticism, but they do not transform Backpage into an information content provider….

To avoid any misunderstanding, let me make it clear that the court is not unsympathetic to the tragic plight described by Jane Doe No. 1, Jane Doe No. 2, and Jane Doe No. 3. Nor does it regard the sexual trafficking of children as anything other than an abhorrent evil. Finally, the court is not naïve—I am fully aware that sex traffickers and other purveyors of illegal wares ranging from drugs to pornography exploit the vulnerabilities of the Internet as a marketing tool. Whether one agrees with its stated policy or not (a policy driven not simply by economic concerns, but also by technological and constitutional considerations), Congress has made the determination that the balance between suppression of trafficking and freedom of expression should be struck in favor of the latter in so far as the Internet is concerned. Putting aside the moral judgment that one might pass on Backpage’s business practices, this court has no choice but to adhere to the law that Congress has seen fit to enact.

* Straw v. Streamwood Chamber of Commerce, Inc., 2015 IL App (1st) 143094-U (Ill. App. Ct. Sept. 29, 2015):

Straw also argues that Bowers’ letter that Paddock published contained comments which were malicious and defamatory as a matter of law and therefore, the court erred when it dismissed Count XIV. Straw also argues that Bowers’ words “represent malice as a matter of law” and are not protected by the innocent construction rule.

The allegedly defamatory words that Straw is attacking are in a letter written by Bowers and published on Paddock’s website. Straw argues that because the “newspaper is responsible for things it prints” it bears the responsibility for Bowers’ allegedly defamatory letter. Section 230(c)(1) of the Communications Decency Act (CDA) provides “[n]o provider or 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). We find that Bowers was another information content provider that placed comments on Paddock’s website. Therefore, we hold that section 230(c)(1) of the CDA absolves Paddock from liability for Bower’s, a third party user, comments posted on Paddock’s website. 47 U.S.C § 230(c)(1). Accordingly, we affirm the circuit court’s order dismissing count XIV.

* Rector v. Major League Baseball (N.Y. Sup. Ct.). Another rare example of a defamation case that circumscribes secondary defendants’ liability without referring to Section 230.

* Daphne Keller: Empirical Evidence Of “Over-Removal” By Internet Companies Under Intermediary Liability Laws


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