Section 230’s Success in Under-the-Radar Cases

For every high-stakes Section 230 case that gets widespread coverage, I see many other low-profile cases–often pro se–where Section 230 works as we all expect. These rulings usually aren’t super-interesting because they confirm the status quo. However, they provide a good barometer of Section 230’s health as an immunity. Without Section 230 quickly cleaning up these cases, the courts would likely be flooded with thousands of similar cases, most of which would be flatly unmeritorious, and the collective effect of which would be to move defendants closer to death-by-one-thousand-duck-bites.

In this post, I’ll share four recent Section 230 cases that flew under the radar but, collectively, demonstrate the quietly powerful role that Section 230 plays in managing our litigious society. Because their complaints are so convoluted and pro se litigants love to threaten me with defamation, I’m just going to blockquote the courts’ applicable discussion.

DeLima v. YouTube

Magistrate R&R: DeLima v. YouTube, LLC, 2018 WL 4473551 (D.N.H. Aug. 30, 2018)

District court approval of R&R (verbatim): 2018 WL 4471721 (D.N.H. Sept. 18, 2018)

First Amendment: “DeLima alleges that by censoring and deleting content she has posted on the defendants’ internet platforms, and otherwise inhibiting her ability to express herself, the defendants have violated her right to free speech and engaged in viewpoint discrimination. Defendants are all private companies. DeLima has failed to allege any state action giving rise to the alleged violations of her First Amendment rights, and the district judge should dismiss DeLima’s First Amendment claims.”

Reallocating Third Level Domain Name to Subsequent User: “DeLima asserts that she bought a domain name from, a blog hosting service owned by Google. She says that she later shortened the name of her personal blog and stopped using the longer name, but that she retains the copyright in the longer domain name. [Eric’s note: this is almost certainly a trademark concern, not a copyright one] DeLima alleges that, when she ceased to use the longer domain name, Google and allowed it to be used by a third party, identified by DeLima as “Bruce Bot,” the moniker used by the blog’s present author. DeLima state that Bruce Bot has cyberbullied her, used her virtual property, harassed, defamed, libeled and slandered her, and infringed upon her copyright in the domain name. DeLima states that by allowing her domain name to be “recycled,” rather than placing it in “internet trash,” and Google are liable for the harm she alleges has been caused, both to DeLima and her audience, as a result of Bruce Bot’s use of that domain….Google is an ICS, and, which is owned by Google and serves as an online venue for Google’s interactive computer services, and is thus also an ICS. Both of those defendants are therefore afforded immunity under the CDA “for the publication of defamatory content prepared or posted by others.” The fact that Bruce Bot may have been improperly using a domain name that belongs to DeLima does not serve as a basis to hold Google or Blogspot liable for the content posted by Bruce Bot using that domain name.”

FOSTA-SESTA: “The FOSTA-SESTA amends the CDA to remove immunity from suit for interactive computer services under limited circumstances, concerning sex trafficking, that are irrelevant to this action, or to any assertion by DeLima.” One of the first court discussions about FOSTA!

Lee v. OfferUp, Inc., 2018 WL 4283371 (E.D. La. Sept. 7, 2018):

“Lee alleges that OfferUp is liable for negligence because it allowed third-parties to post an advertisement on OfferUp’s app, which is a website, that lured Lee to a location where he was allegedly robbed and shot. Essentially, Lee alleges that if OfferUp had not published the advertisement, he would not have gone to the meeting with the third-parties and would not have been harmed. Lee’s complaint seeks to hold OfferUp liable for its publishing, editorial, and/or screening capacities, which is barred by the CDA. See MySpace, 528 F.3d at 419-222 (finding that plaintiffs were alleging publication claims that were barred by the CDA when an underage girl met a man through MySpace and he sexually assaulted her when they met in person). Because Lee’s claim are barred by the CDA, OfferUp’s motion to dismiss is GRANTED, and Lee’s claims against OfferUp are DISMISSED.”

Another example where Section 230 protected the defendant against offline personal injury.

Fehrenbach v. Zeldin, 2018 WL 4242452 (E.D.N.Y. Aug. 6, 2018):

“the actions to which Fehrenbach objects fall squarely within the statute. The complaint charges the Facebook defendants with enabling users to restrict access to material. In fact, Fehrenbach’s opposition papers make clear that “[t]he complaint against Mr. Mark Zuckerberg and Facebook is that they created a platform and provided tools on that platform which enabled Representative Lee Zeldin, Mr. Lee Zeldin’s Staff and IT Staff the ability to hide Mr. Charles Fehrenbach’s Comments….”  In other words, Fehrenbach seeks to hold the Facebook defendants accountable for their role in making that service available. Consequently, Section 230(c)(2)(B) of the CDA also immunizes the Facebook Defendants from liability.”

A rare 230(c)(2)(B) win.

Shulman v., 2018 WL 3344236 (D.N.J. July 9, 2018):

“In sum, Section 230 “precludes courts from entertaining claims that would place a computer service provider in a publisher’s role, and therefore bars 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.” Therefore, instead of providing Plaintiff with a cause of action, Section 230 instead shields Defendant Facebook from civil liability.”