2H 2020 Quick Links, Part 2 (Section 230)

* Griffin v. Google, 2020 WL 6781624 (S.D. Ga. Nov. 18, 2020). “Plaintiff only alleges these Defendants failed to screen to make sure their users were legal entities without providing any other basis for liability….Aside from some very limited exceptions, which are not applicable here, internet companies, including social media companies, are generally immune from suit for content posted on their platforms by third parties under the Communications Decency Act. 47 U.S.C. § 230; Almeida v. Amazon.com, Inc., 456 F.3d 1316, 1321–22 (11th Cir. 2006). For this reason, Plaintiff does not state a plausible claim against Facebook, Google, Instagram, LinkedIn, or Amazon. Thus, Plaintiff does not plausibly allege these companies were obligated to screen private messages to Plaintiff or to warn Plaintiff “Harddrive Publishing Imprint” was not a real company.”

* GCM Partners, LLC v. HIPAALINE LTD., 020 WL 6867207 (N.D. Ill. Nov. 23, 2020)

Hipaaline contends that GCM is unlikely to succeed on the CFAA claim because its allegations trigger immunity under the Good Samaritan provision of the Communications Decency Act, 47 U.S.C. § 230(c)(2). The Good Samaritan provision states: No provider or user of an interactive computer service shall be held liable on account of–(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected. “[A] mistaken choice to block, if made in good faith, cannot be the basis for liability under federal or state law.” e360Insight, LLC v. Comcast Corp., 546 F. Supp. 2d 605, 609 (N.D. Ill. 2008). Hipaaline represents that it concluded in good faith that GCM’s access to the Leafwell platform constitutes and furthers the unlawful practice of medicine. Even assuming that the Good Samaritan provision would apply to Hipaaline’s actions in restricting GCM’s access to the Leafwell platform, the evidence before the Court at this time does not suggest that Hipaaline took these actions in good faith but rather acted out of a desire to pretextually terminate the Agreement.

* Wilferd v. Digital Equity, LLC, 2020 WL 6827905 (N.D. Ga. Nov. 20, 2o20):

Defendants argue Wilferd’s defamation claim is barred by the Communications Decency Act (CDA). Under the CDA, “[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.” An “information content provider is any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.” Defendants here contend Wilferd has not plausibly alleged that either Dhanani or Digital Equity authored the at-issue blog articles. Specifically, Defendants posit that Wilferd’s allegations premised “upon information and belief” are insufficient. The Court does not agree. In the Amended Complaint, Wilferd alleges: Defendants authored, participated in the creation of or otherwise caused and approved these abhorrent, sexist and degrading statements to be published without justification, privilege or other defense. Upon information and belief, these statements were not independently made by third parties. Wilferd additionally alleges that Defendants: [W]ere directly responsible for either authoring and/or hiring foreign contractors to author these posts, as well as directly participating in and approving their publication. Upon information and belief, the posts were not independently created by any third party. Indeed, at the time, and still today, the website www.wines.com did not and does not allow independent user content to be posted on the website. The only content posted to the blog is by users authorized and approved by the website owners, in this case, Digital Equity. These allegations contain enough specific facts to plead that either Dhanani or Digital Equity authored or created the at-issue blog articles and posted them to the website.

* Weitsman v. Levesque, 2020 WL 6825687 (S.D. Cal. Nov. 20, 2020):

the Court finds that the CDA, in fact, cuts against ordering a third party who has not appeared in the action to remove defamatory speech. See, e.g., Hassell v. Bird, 5 Cal. 5th 522, 541 (2018) (“Even though plaintiffs did not name Yelp as a defendant, their action ultimately treats it as ‘the publisher or speaker of…information provided by another information content provider.’ With the removal order, plaintiffs seek to overrule Yelp’s decision to publish the three challenged reviews. Where, as here, an Internet intermediary’s relevant conduct in a defamation case goes no further than the mere act of publication—including a refusal to depublish upon demand, after a subsequent finding that the published content is libelous—section 230 prohibits this kind of directive.”) (citing 47 U.S.C. § 230(c)(1); Barrett v. Rosenthal, 40 Cal. 4th 33, 48, 53 (2006); Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997); Medytox Sols., Inc. v. Investorshub.com, Inc., 152 So. 3d 727, 731 (Fla. Dist. Ct. App. 2014)), cert. denied sub nom. Hassell v. Yelp, Inc., 139 S. Ct. 940, 203 L. Ed. 2d 131 (2019). The Court fervently hopes that the third parties in question will voluntarily remove the posts in question given the Court’s determination that the posts are defamatory and the Court’s injunction against Defendant’s making or continuing to make the statements in question, but the Court cannot order the third parties to do so.

* Ross-Nash v. Almond, 2020 WL 6829766 (D. Nev. Nov. 20, 2020). “Ross-Nash was a content provider when she commented “yes” on Law’s post. Ross-Nash has therefore not established that she is immunized by the CDA.”

* New Cingular Wireless PCS LLC v. Commissioner of Revenue, 2020 WL 5268222 (Mass. App. Ct. Sept. 4, 2020):

Similarly informative is 47 U.S.C. § 230(d), which was enacted at the same time as the ITFA. Pub. L. No. 105-277, Division C, Title XIV, § 1404(a), 112 Stat. 2681-739 (1998). Under § 230(d), a provider of computer server access to multiple users must “notify such customer that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist the customer in limiting access to material that is harmful to minors.” Again, Congress opted to ensure that customers were aware of the existence of screening software, but left it entirely to the customer to decide whether to pursue that option.

* Tang v. Guo, 2020 WL 6414371 (SDNY Nov. 2, 2020):

the SAC plausibly alleges SMG’s publication of the false statements—not merely its publication of a third-party’s statements—because Plaintiffs plausibly allege that Kwok owns and controls SMG and used it to violate the Lanham Act and unfairly compete with Plaintiffs’ fundraising efforts. Indeed, “it is well established that, for an [interactive computer service] to enjoy immunity under CDA § 230, a different [information content provider] must have provided the complained-of information—the statute does ‘not immunize [defendants] with respect to any information [they] developed or created entirely by [themselves].’ ”

* Marc Aldana v. Worcester Digital Marketing, LLC et al., 2020 WL 5993103 (Mass. Superior Ct. Aug. 12, 2020: “CDA creates an affirmative defense not a basis to challenge the court’s subject matter jurisdiction over a libel claim. Moreover, plaintiff alleges defendants (not a third party) published the defamatory content. As a result, I cannot resolve the CDA defense at the pleading stage.”

* Quinteros v. Taylor, 2019 Cal. Super. LEXIS 3287 (Cal. Superior Ct. Oct. 1, 2019)

Plaintiff does not allege that these demurring defendants created or posted the offensive material. All of the plaintiff’s common law claims against defendants Instagram and Facebook are barred by the Communications Decency Act (“CDA”) at 47 USC § 230, et seq.

Plaintiff’s opposition fails to cite any authorities that contradict the extensive citations to state and federal authorities holding that the CDA bars claims based upon exactly same conduct as alleged here, i.e. allowing a third party to “hack” or otherwise access or modify a social media account, and failing to remove such offensive content upon demand, whether sounding in negligence, or as breach of contract. (See for example, Cross v. Facebook, Inc. (2017) 14 Cal.App.5th 190, 207).

* This amicus brief explains how the Internet helps transgender people & the vital role Section 230 plays in protecting the transgender community from online abuse & harassment.