A Significant Section 230 Defense Win in the Ninth Circuit–Dyroff v. Ultimate Software

This is an important Section 230 ruling from the Ninth Circuit. First, it decisively rejects several of the flavor-of-the-month theories plaintiffs have advanced to eviscerate Section 230. Second, the opinion resolves those theories efficiently and with little wasted motion. That sends a strong signal to other judges that disposing of these theories is an easy call. Combined with strongly pro-230 defense rulings from other appellate courts, such as Herrick v. Grindr (2d Circuit) and Marshall’s Locksmith v. Google (DC Circuit), defendants are getting plenty of benefit from Section 230 even as Congress is doomed to eviscerate Section 230.

Background

Wesley Greer became addicted to drugs. He found a drug dealer on the Experience Project website, connected with the dealer offline, purchased bad heroin, and died as a result. Greer’s mom sued the Experience Project (run by an outfit called Ultimate Software) for his death. The Experience Project service subsequently shut down, but the case continues.

In 2017, the lower court issued an amazingly thorough and thoughtful opinion granting Experience Project’s motion to dismiss. That opinion was so remarkable that I wrote 3,400 words about it. On appeal, the Ninth Circuit efficiently affirms the lower court.

The Ninth Circuit Ruling

The opinion is only 18 pages, and the analysis starts on page 8, so you should read the whole thing. The highlights:

Section 230’s Applicability. The court applies the standard 3-element prima facie defense.

ICS Provider. “Ultimate Software published Experience Project users’ posts and did not materially contribute to its users’ posts…Websites are the most common interactive computer services.”

Publisher/Speaker Claims. The Experience Project “published information created or developed by third parties. Specifically, Experience Project did not create or develop the posts that led to Greer’s death. Rather, it was Greer, himself, who posted “where can i [sic] score heroin in jacksonville, fl” on Experience Project. And it was the drug dealer, Margenat-Castro, who posted in response to Greer’s post.”

The court then thumps the faddish argument that Experience Project should lose Section 230 protection because algorithms…something…something…:

By recommending user groups and sending email notifications, Ultimate Software, through its Experience Project website, was acting as a publisher of others’ content. These functions—recommendations and notifications—are tools meant to facilitate the communication and content of others. They are not content in and of themselves.

This is a nice companion to the DC Circuit’s uncited Marshall’s Locksmith v. Google ruling, which also held that algorithmic manipulation of third-party content didn’t affect Section 230. I think it also pairs nicely with the Second Circuit’s uncited Herrick v. Grindr ruling, where the plaintiffs similarly and unsuccessfully tried to find some daylight based on Grindr’s matching functions.

The court distinguishes the Ninth Circuit’s HomeAway v. Santa Monica ruling because, in that case, “liability arose from facilitating unlicensed booking transactions.”

Third-Party Content. “the content at issue was created and developed by Greer and his drug dealer. Plaintiff’s content “manipulation” theory is without support in the statute and case law.”

Citing Kimzey v. Yelp, the court distinguishes the Roommates.com case:

Ultimate Software’s functions on Experience Project most resemble the “Additional Comments” features in Roommates.com in that Experience Project users, including Wesley Greer, were not required to disclose that they were looking for heroin or other illegal drugs. Rather, users were given something along the lines of blank text boxes in which they could post and share experiences, questions, and answers. The recommendation and notification functions helped facilitate this user-to-user communication, but it did not materially contribute, as Plaintiff argues, to the alleged unlawfulness of the content….

Plaintiff is unable to allege that Ultimate Software materially contributed to the content posted on Experience Project that led to Greer’s death. Plaintiff cannot and does not plead that Ultimate Software required users to post specific content, made suggestions regarding the content of potential user posts, or contributed to making unlawful or objectionable user posts.

Section 230 Conclusion. The court summarizes:

Ultimate Software did not create content on Experience Project, in whole or in part. Accordingly, Ultimate Software, as the operator of Experience Project, is immune from liability under the CDA because its functions, including recommendations and notifications, were content-neutral tools used to facilitate communications.

While all of this is good, I still cringe every time I see “neutrality” in Section 230 discussions, especially when the term isn’t defined. Because the process of content publication is never “neutral,” I continue to fear courts will find an online publisher of third party isn’t “neutral” because it never could be neutral. In contrast, while I didn’t love the discussion of “neutrality” in the Marshall’s Locksmith case, the opinion at least emphasized that neutrality was satisfied whenever a site handles legal and illegal content identically. I think that’s what the Ninth Circuit meant, but ideally it could reach that outcome without using the semantically troublesome word “neutral.”

“Collusion.” The plaintiff argued that Experience Project “colluded” with/induced the bad actors, and analogized Ultimate Software to Backpage per the JS v. Village Voice case. The court doesn’t see Experience Project as a darkweb cesspool:

Ultimate Software’s anonymity features along with its public statements expressing concern for internet privacy and detailing the burden of law enforcement information requests are not facts whose inferences, viewed in the light most favorable to Plaintiff, plausibly allege collusion with drug dealers or other bad actors. Today, online privacy is a ubiquitous public concern for both users and technology companies. These statements do not establish, on the part of Ultimate Software, antipathy to law enforcement, especially given the corresponding statements about always supporting “proper law enforcement requests.”

Unlike the plaintiffs in Village Voice Media, Plaintiff here did not allege that Experience Project had a section for drug-related experiences on its website with specific content posting requirements that facilitated illegal drug transactions. Plaintiff’s allegation that user anonymity equals promoting drug transactions is not plausible.

Duty of Care. Regulators and plaintiffs around the globe are eagerly seeking to impose “duties of care” on UGC services. See my comments on the UK Online Harms White Paper for a critique of this line of thinking. Meanwhile, the Ninth Circuit emphatically rejects the existence of a general “duty of care”:

Ultimate Software did not make Plaintiff’s son, Greer, worse off because the functions Plaintiff references—recommendations and notifications—were used regardless of the groups in which a user participated. No website could function if a duty of care was created when a website facilitates communication, in a content-neutral fashion, of its users’ content.

This is a reminder that even when “duty of care” arguments help plaintiffs bypass Section 230 per Doe v. Internet Brands, they will still fail on the prima facie case. Here, the judge cleverly phrases the “duty of care” rejection using the same “content-neutral” language that supported the Section 230 defense. By doing so, the opinion implicitly eliminates any “duty of care” workaround to Section 230. In other words, if a UGC service is “content-neutral” enough to qualify for Section 230, that implies they also don’t have a duty of care. I know plaintiffs will continue to bring duty of care claims to get around Section 230, but those claims are clearly futile.

Conclusion

DC has turned into Crazytown, which makes every major Section 230 defense win bittersweet. The more defendants win in court, the more it fuels Section 230-haters inside the beltway. Superficially, it would be easy to blame Section 230 for giving Experience Project a free pass that caused this drug-related tragedy. However, most of know that’s not the correct analysis. Indeed, Experience Project failed in the marketplace, and the dealer in this tragedy was arrested twice based on his Experience Project postings. So Section 230 didn’t guarantee marketplace longevity or restrict proper enforcement against the criminal. Yet in the post-factual world we live in, a ruling like this can add to the pressure on Section 230 when regulators misdirect the blame.

For writing such a thoughtful Section 230 opinion with confidence and brevity, I’m giving the Technology & Marketing Law Blog’s judge-of-the-day award to nonagenarian Judge Dorothy Nelson.

Case Citation: Dyroff v. The Ultimate Software Group, Inc., 2019 WL 3926107 (9th Cir. Aug. 20, 2019)