Section 230 Helps Tumblr Defeat Nonconsensual Pornography Suit–Poole v. Tumblr

This ruling came out in March, but it just showed up in my Westlaw alerts. I don’t know why it was delayed over 6 months. The opinion is topical and clear, so I thought it’s still worth blogging now.

This is a revenge porn case. Poole’s ex-boyfriend posted nude photos of her to MyEx.com and Facebook. Those photos eventually came down, but they migrated to Tumblr, where other users republished the photos and doxxed Poole. She repeatedly got Tumblr to remove the photos, only to have them reposted. For a little more background, see this story.

Poole sued Tumblr for privacy invasions and infliction of emotional distress. Tumblr defended on Section 230(c)(1) grounds. (Poole also brought copyright claims that she withdrew).

Poole explained that she was suing Tumblr because “Tumblr continued to [publish her nude photos] after receiving notice from [Poole] at least 7 times to take down her photographs.” In other words, she wasn’t suing over the notice-and-takedown, she was seeking a notice-and-staydown. These events took place before Tumblr’s new adult content policy, which might now come closer to achieving Poole’s staydown objective.

The court efficiently says Tumblr met the standard three requirements for a prima facie Section 230(c)(1) defense. The court adds that “the only issue to be determined is whether section 230 contains a good faith requirement and, as a result, an issue of fact exists with respect to Tumblr’s alleged conduct.” The answer, of course, is that Section 230(c)(1) does not have a good faith requirement, and the court quickly reaches that conclusion, with cites to Levitt v. Yelp, Zeran v. AOL, and UCS v. Lycos. [Daniel v. Armslist would have also been a good cite: it says plainly “§ 230(c)(1) contains no good faith requirement.” As a result, “Poole has failed to provide authority for the proposition that section 230(c)(1) includes a requirement of good faith.”

Though we are all sympathetic to the victim here, the court’s legal conclusion has its own doctrinal merits. I explain why Section 230(c)(1) should NOT have a good faith requirement in this article. Adding a new “good faith” or “reasonableness” obligation into Section 230(c)(1) surely will come up in this week’s House hearing on Section 230. My article explains why it would functionally destroy Section 230(c)(1).

While Section 230(c)(1) protected the intermediary in this nonconsensual pornography case, that’s not always the case. Angie Jin and I documented several contrary outcomes in this article.

Case citation: Poole v. Tumblr, Inc., 2019 WL 4917553 (D. Conn. March 7, 2019)