Recapping a Year’s Worth of Section 230 Cases That Got Stuck in My Blogging Queue

[Though most of these rulings are defense-favorable, Congress recently eviscerated Section 230 and isn’t done ruining its greatest online policy masterpiece]

Twitter Defeats Defamation Claim

As part of a custody dispute, a former spouse allegedly disparaged the other spouse in tweets. “Plaintiff asserts, for instance, that ‘Mr. Hunter smeared Ms. Frenken in his Twitter campaign of hate, by Twitter handle @Jasmijnisfree., claiming Ms. Frenken ‘hides in a foreign country,’ and ‘buys heroin for addict’….'” Twitter was also named as a defendant. Twitter defended on Section 230 grounds. The court agrees.

This is a straightforward Section 230 case. The plaintiff claimed that the tweets violated Twitter’s policy, but the court says the onsite disclosures don’t create promissory estoppel (a Section 230 workaround per Barnes v. Yahoo) because the disclosures are phrased as discretionary for Twitter. “Rather, the SAC’s statements pertain exclusively to Twitter’s decision to transmit the Decedent’s messages and maintain his account—activities that ‘necessarily involve[] treating the liable party as a publisher of the content it failed to remove'” (cite to Barnes).

The court dismisses with prejudice:

Plaintiff’s suit is, at bottom, predicated entirely on her now deceased ex-husband’s tweeting activity. Because any allegations stemming from this theory arise from Twitter’s status as a publisher of information generated by the Decedent, allowing Plaintiff to further amend her complaint would be futile.

Case citation: Frenken v. Hunter, 2018 WL 1964893 (N.D. Cal. April 26, 2018)

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Section 230 Protects Instagram Link to Defamatory Content

At issue: “Kai’s Instagram accounts linked to the Sculimbrene Article and stated, respectively: ‘This is definitely worth a read—this is the story behind the #zt0777 [a ZT knife] & the new @kershawknives #7007 Natrix[;]’ and ‘Wonder what the backstory to the new #7007 Natrix is? See why @everydaycommentary [Sculimbrene’s website] calls it ‘the greatest knife of all time!’'” The court summarizes: “there is no dispute that under § 230, Kai is immune from Plaintiffs’ state tort claims if Kai is found to have only posted a link to the Sculimbrene Article on Instagram, and not to have created, edited, or otherwise developed it.”

Other uncited cases where Section 230 protected links to defamatory content:

* Linking to Defamatory Content Protected by Section 230—Vazquez v. Buhl
* Section 230 Immunizes Links to Defamatory Third Party Content–Directory Assistants v. Supermedia

Case citation: Marfione v. Kai USA, 2018 WL 1519042 (W.D. Pa. March 28, 2018)

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No Liability for Cyber-Harassment Attack, Even if the Service Could Have Been Designed Differently

This case is a great extension of Dyroff v. Ultimate Software, but the subsequent Daniel v. Armslist ruling creates a lot of FUD in future cases like this. My blog post on the prior ruling in this case.

An ex-boyfriend created fake Grindr profiles for the plaintiff that allegedly caused over a thousand unwanted inquiries, including in person. The court calls this a case of “malicious catfishing.” Under California law, we’d call this an e-personation. The plaintiff says he complained to Grindr about the fake accounts about 100 times.

The court says the “gist” of the lawsuit “is that Grindr is a defectively designed and manufactured product because it lacks built-in safety features; that Grindr misled Herrick into believing it could interdict impersonating profiles or other unpermitted content; and that Grindr has wrongfully refused to search for and remove the impersonating profiles.” The plaintiff offered a long list of suggestions of how Grindr could be redesigned to improve the plaintiff’s safety. The court responds:

To the extent Herrick has identified a defect in Grindr’s design or manufacture or a failure to warn, it is inextricably related to Grindr’s role in editing or removing offensive content – precisely the role for which Section 230 provides immunity.

The court applies the standard three-part test for Section 230:

• Grindr is an ICS provider because “Grindr provides its subscribers with access to a common server. [Cite to Saponaro v. Grindr]. Herrick has not identified any legally significant distinction between a social networking platform accessed through a website, such as Facebook, and a social-networking platform accessed through a smart phone app, such as Grindr. In either case, the platform connects users to a central server and to each other.”
• The subject content is third party content: “Herrick’s design and manufacturing defect, negligent design, and failure to warn claims are all based on content provided by another user – Herrick’s former boyfriend….To the extent Grindr contributes to the impersonating profiles, it is through such ‘neutral assistance.’ Categorization features, such as Grindr’s drop-down menu for ‘preferred sexual position,’ constitute quintessential ‘neutral assistance.’…These features are available equally to all users and are not intrinsically offensive or unlawful. Grindr’s algorithmic filtering, aggregation, and display functions are similar.” Note this is another time the term “neutrality” supports a Section 230 defense, but I’d be happy if the term “neutral” were permanently banished from Section 230 jurisprudence.
• The court says other courts have interpreted the statutory term “publication” “capaciously” (contra the Daniel v. Armslist case). The court explains: “Herrick’s claim that Grindr is liable because it failed to incorporate adequate protections against impersonating or fake accounts is just another way of asserting that Grindr is liable because it fails to police and remove impersonating content….The existence vel non of safety features is meaningless in a vacuum, and their existence is only relevant to Herrick’s injury to the extent that such features would make it more difficult for his former boyfriend to post impersonating profiles or make it easier for Grindr to remove them.” This has some parallels to the social media “material support for terrorists” cases where the plaintiffs have argued that Section 230 doesn’t apply to provisioning accounts to terrorists, even though the account only matters when it’s used. In any case, the court continues:

Like the claims in Backpage.com, Herrick’s claims are based on features or missing safety features, such as Grindr’s geolocational tools and Grindr’s inability to block profiles based on ICC numbers and MAC address or to search for profiles by photograph. As in Backpage.com, these features (or the lack of additional capabilities) are only relevant to Herrick’s injury because they bear on Grindr’s ability to search for and remove content posted to the app – exactly the sort of “editorial choices” that are a function of being a publisher.

The court says the failure-to-warn claims are also publisher claims: “The warning proposed by Herrick is only necessary because Grindr (as publisher) does not police or remove objectionable content.” The court distinguishes Doe v. Internet Brands, which “is best read as holding that the CDA does not immunize an ICS from a failure to warn claim when the alleged duty to warn arises from something other than user-generated content…. the proposed warning in this case would be about user-generated content itself – the impersonating profiles or the risk that Grindr could be used to post impersonating or false profiles.” I’m not sure about this distinction between warning about personal injuries and UGC.

In a footnote, the court also questions if Grindr is a “product”: “Herrick’s real complaint is with the impersonating profiles, which are expressive content that was not created by Grindr. To the extent Herrick takes issue with Grindr’s software architecture and features, the CDA applies and the Court need not address whether those aspects of the software are ‘products’ for purposes of strict products liability.”

The claims for TOS breach or marketing disclosures fail for the usual reasons: “Grindr does not warrant that it will remove illicit content; instead, it merely represents that it may do so,” plus Grindr’s various disclaimers. The court also questions proximate causation:

one does not need to be a Grindr user to be impersonated on Grindr; what happened to Herrick could, unfortunately, have happened to him even if he never saw the Terms of Service and never used Grindr. At best (for Herrick), his decision to join Grindr in 2011 in reliance on the Terms of Service is a “but-for” cause of his injuries – had he not joined Grindr, Herrick would never have met his former boyfriend – but the Terms of Service and community values page have no other connection to the harassment directed at Herrick in 2016 and 2017.

The murkiness of the site disclosures negates the promissory estoppel claim.

There’s even more good stuff in the opinion. Check it out.

This case has already been appealed to the Second Circuit, where anything could happen. The district court clearly saw the attempts to work around Section 230 for what they were; I’m less confident the appellate court will be so clear-eyed.

Case citation: Herrick v. Grindr LLC, 2018 WL 566457 (SDNY Jan. 25, 2018)

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Section 230 Protects Message Board 

Allnurses runs a message board related to nursing. The plaintiff offers Active Test Prep (ATP), a test prep service for nursing exams. Allnurses users allegedly defamed ATP in message board posts. Allnurses defends on Section 230 grounds, which the court largely accepts. ATP claimed the users were Allnurses’ “agents” but didn’t marshal good evidence to support the assertion. Also, the court says Section 230 applies to claims that Allnurses “ratified and adopted” the user comments. In a footnote, the court says: “ATP argues that Allnurses selectively removed content and ultimately closed the thread—but that is precisely the type of action that the CDA was intended to protect.”

The opinion also addresses what it means to “like” an allegedly defamatory post: “to ‘Like’ something online is not to vouch for its veracity, and certainly not in whole.” See Bland v. Roberts.

ATP also claimed breach of contract for Allnurses’ failure to enforce negative behavioral covenants in the TOS (have you noticed how often plaintiffs are trying this attempted workaround to Section 230?). The court says that Allnurses’ contract formation failed because ATP  “does not allege, and the record does not show, that users must check a box accepting the statement ‘Your participation implies full acceptance with our Terms of Service.'” [Protip: you never want to “imply” anything about your contract terms or formation process.] Furthermore, ATP can’t be a third party beneficiary of the Allnurses/user contract because “by this logic, the entire world is an intended beneficiary of the TOS. That cannot be right.” The promissory estoppel workaround fails because the TOS terms are too indefinite.

Case citation: East Coast Test Prep LLC v. Allnurses.com, Inc., 2018 WL 614732 (D. Minn. Jan. 29, 2018)

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Section 230 Helps Defeat Product Liability Claim

A retractable leash permanently injured the plaintiff’s eye. She bought the leash from an Amazon Marketplace merchant. She sued Amazon for various products liability claims. The court says no. First, the court says Amazon wasn’t the seller of goods in its marketplace. Sorry this passage is so painful, but don’t shoot the messenger:

Like an auctioneer, Amazon is merely a third-party vendor’s “means of marketing,” since third-party vendors—not Amazon—“cho[o]se the products and expose[ ] them for sale by means of” the Marketplace. Because of the enormous number of third-party vendors (and, presumably, the correspondingly enormous number of goods sold by those vendors) Amazon is similarly “not equipped to pass upon the quality of the myriad of products” available on its Marketplace. And because Amazon has “no role in the selection of the goods to be sold,” it also cannot have any “direct impact upon the manufacture of the products” sold by the third-party vendors.

The Amazon Marketplace serves as a sort of newspaper classified ad section, connecting potential consumers with eager sellers in an efficient, modern, streamlined manner. Because subjecting it to strict liability would not further the purposes of § 402A, as revealed by Musser and other Pennsylvania cases, it cannot be liable to the Oberdorfs under a strict products liability theory.

Calling Amazon Marketplace a “classified ad section” is definitely defense-favorable, but it’s a weak analogy that other courts would reject. See Airbnb v. San Francisco. Regarding Section 230, the court says:

Since the Oberdorfs’ claims for strict products liability, misrepresentation, and breach of warranty have all been disposed of supra, this Court need only consider Amazon’s CDA argument with respect to the Oberdorfs’ negligence and negligent undertaking claims. Although the Complaint frames those claims broadly, it is clear from the Oberdorfs’ papers that they are, in fact, attempting to hold Amazon liable for its role in publishing an advertisement for The Furry Group’s product. In other words, the Oberdorfs are attempting to “treat[ Amazon] as the publisher or speaker of…information provided by” The Furry Group.

Uncited cases in this genre include: Inman v. Technicolor, McDonald v. LG (reaching a different conclusion on Section 230), Hinton v. Amazon, and Englert v. Alibaba.

Case citation: Oberdorf v. Amazon.com, Inc., 2017 WL 6527142 (M.D. Pa. Dec. 21, 2017)

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Publicity Rights Claim Preempted by Section 230 in a Court Outside the 9th Circuit

Gordon Roy Parker has sued Internet companies several times. He has made substantial contributions to defense-favorable Internet law jurisprudence. See, e.g., Parker v. Google and Parker v. Yahoo. He published a book that he claims was repeatedly infringed. This is primarily a copyright case, which the court disposes of. The court says “Moving Defendants’ storage of electronic materials on their servers, like Google, Inc.’s caching of websites in that case, is, by its nature, passive conduct performed automatically at the instigation of others, and does not render Moving Defendants liable for any direct copyright infringement.” The secondary infringement claims also fail.

Regarding the publicity rights claim, the court says:

Although Plaintiff argues that Moving Defendants are liable for a third party’s misappropriation of his work and likeness when Moving Defendants merely hosted the offending work but did not publish or alter its content, he is mistaken. His state law claims are clearly preempted and prohibited by § 230.

The court doesn’t make any citations, yet I think this is a significant move. This is the first time I can recall where a court rejected a state IP claim based on Section 230 outside of the Ninth Circuit (see the ccBill case).

Case citation: Parker v. PayPal, 2017 WL 3508759 (E.D. Pa. Aug. 16, 2017)