Vimeo Wins Section 230(c)(2)(A) Ruling on Motion to Dismiss–Daystar v. Vimeo

This case involves Daystar TV Network, “an evangelical Christian-based television network.” It contracted with Vimeo to host and distribute up to 2,000 hours of videos/year. Daystar uploaded over 3,000 videos to Vimeo pursuant to this contract. Vimeo’s AUP banned content that “makes false or misleading claims about vaccination safety.” Vimeo flagged, and ultimately deleted, 5 Daystar videos that claimed “a causal link between vaccines and childhood autism.” Daystar sued Vimeo in NY state court for breach of contract and unjust enrichment. The lower court granted Vimeo’s motion to dismiss on Section 230(c)(2)(A) grounds. The appellate court affirms.

The court summarizes its ruling:

Section 230 prevents lawsuits against Internet service providers for their good-faith decisions to remove content that they consider objectionable. If service providers had to justify those decisions in court, or if plaintiffs could circumvent immunity through unsupported accusations of bad faith, section 230 would be a dead letter. This is as true for commercial users as for any other plaintiff.

[Note: although Section 230 does not distinguish between B2C and B2B relationships, this court makes that point more emphatically than most other cases do.]

Contract Breach Claim. The court says no applicable precedent excludes contract breach claims from Section 230(c)(2)(A). The 230/contract interface has been discussed in many cases (the uncited Murphy v. Twitter is the leading case IMO), so I think the court was narrowly considering only NY precedent. The court also says that even if Daystar got around Section 230, Vimeo’s AUP would negate the alleged breach.

Otherwise Objectionable. The court says the standard statutory interpretation doctrine of “ejusdem generis” doesn’t apply to the “otherwise objectionable” phrase, so “the broad final term need not have anything in common with the narrower — but varied — earlier terms….content may be ‘otherwise objectionable’ without being obscene, excessively violent, harassing, or anything similar.” Cites to Enigma v. Malwarebytes, Domen v. Vimeo (the district court ruling), and Daniels v. Alphabet. [I think “otherwise objectionable” must broadly include any content; otherwise, preferential treatment for the enumerated content classes raises a potential First Amendment problem.]

Thus, the court rejects Daystar’s cited precedent (Song Fi v. Google, Sherman v. Yahoo) because they predate Enigma and “were not based on the material’s content.” The antiquated National Numismatics v. eBay case is “less persuasive than recent decisions reaching the opposite conclusion.” As a result, anti-vax content can qualify as “otherwise objectionable” material.

Daystar argued that its videos were not false/misleading, so they were not covered by the AUP and thus not “objectionable” to Vimeo. The court leans into “objectionable” being determined subjectively: “whether content is objectionable is a subjective determination that is reserved to the service provider” (citing Domen v. Vimeo’s district court ruling, which cited Zango v. Kaspersky). In support of this, the court notes the adjudication costs: “Requiring service providers to bear the cost of proving their decisions correct, even at the summary judgment stage, would undermine the purpose of the CDA” (cite to Nemet Chevrolet v. ConsumerAffairs, e360Insight). This is an excellent point because 230(c)(2)(A) cases usually are more expensive to adjudicate when they don’t succeed on a motion to dismiss.

Bad Faith. “Daystar does not allege…defendants indicated that the vaccination content specifically was a good fit or that the Acceptable Use Policy did not apply to Daystar. Nor does it allege that Vimeo’s stated grounds to remove the videos were a pretext for some illicit reason.” Furthermore, Vimeo could make its content moderation decision without consulting an expert, such as a medical professional. Daystar “cites no authority that service providers are required to seek expert advice before removing content. Indeed, such a requirement would increase the costs of removing content and would significantly interfere with a service provider’s decisions as a publisher. Both consequences would be fundamentally at odds with the purpose of section 230(c)(2).”

Implications. After the Domen v. Vimeo clusterfuck, we were left wondering if and when Section 230(c)(2)(A) could support motions to dismiss, especially when the plaintiff makes a weakly supported allegation of bad faith. This opinion answers that question decisively, noting the important policy considerations of dismissing weak cases early (“If service providers had to justify those decisions in court, or if plaintiffs could circumvent immunity through unsupported accusations of bad faith, section 230 would be a dead letter.”). Of course, Vimeo would have almost certainly won this case on other grounds even without Section 230(c)(2)(A), just like the many precedent cases where plaintiffs have also lost, so it would be a mistake to “blame” Section 230 for this outcome. Still, because of its potential efficiency, I hope other courts are open to using Section 230(c)(2)(A) as another doctrinal tool in cases like this.

Case citation: Word of God Fellowship, Inc. v. Vimeo, Inc., 2022 WL 839409 (N.Y. App. Div. March 22, 2022)

BONUS: The Supreme Court denied cert in the Domen v. Vimeo case.