Quick Links from the Past Year, Part 7 (Section 230)

* FTC v. Match Group LLC, 2022 WL 877107 (N.D. Tex. March 24, 2022). A rare and surprisingly bad loss for the FTC on Section 230. The FTC alleged that:

from 2013 to mid-2018, nonsubscribers were unaware that “as many as 25-30 percent of Match.com members who registered each day were using Match.com to perpetrate scams.” The FTC alleges that Match knew, or suspected, certain users were engaging in fraud. Knowing that, Match allegedly used communications from these fraudulent accounts to induce nonsubscribers to purchase a subscription, touting the communications as romantic interest from a legitimate user, which then exposed these consumers to a “risk of falling victim to a romantic scam or other form of fraud” when accessing these fraudulent communications.

The court first says: “Courts in the Fifth Circuit have determined the affirmative defense at issue here, § 230 immunity, is an appropriate basis for dismissal under Rule 12(b)(6).” Cites to La’Tiejira v. Facebook, Hinton v. Amazon, Wells v. YouTube, Inge v. Walker, Doe v. Bates, MCW v. BadBusinessBureau, Doe v. MySpace.

Interactive Computer Service Provider. Undisputed. Also, Beckman v. Match.com.

Third-Party Content. “the underlying communication created by a third-party, a Match.com user, is truly ‘the specific harmful material at issue,’ not the automatically generated advertisement sent by Match.” The court rebuffed the FTC’s attempt to distinguish Dyroff. “Website features such as recommendations and email notifications are ‘the type of content-neutral tools’ that are used ‘to facilitate the communication and content of others…. [and] are not content in and of themselves.’”

Publisher/Speaker Claims. “Despite the FTC’s creative arguments to the contrary, the allegations ultimately rest on Match’s efforts, or conversely failures, to screen these fraudulent accounts and their communications, particularly with respect to automatically generated advertisements sent to nonsubscribers. and Match’s failure to disclose or warn of a fraudulent or flagged account to consumers….liability for Count I is predicated on alleged actions that Match took as a publisher performing traditional editorial functions, such as editing, screening, and removing content.”

The FTC cited Anthony v. Yahoo. The court responds: “Although the FTC attempts to characterize Match’s conduct as akin to Yahoo! in Anthony, the FTC’s allegations are in no way similar. The FTC does not allege Match created or manufactured fraudulent accounts. Furthermore, the FTC simply does not allege Match deliberately generated advertisements upon communications sent only from fraudulent or flagged user accounts for the purpose of selling advertisements. Here, the FTC challenges automatically generated advertisements sent by Match which, by the FTC’s own allegations, were triggered by any communication sent from one Match.com user to another.”

The court adds that Match.com qualifies for Section 230(c)(2)(A) to the extent “the FTC seeks to hold Match liable for exposing nonsubscribers to potential fraud because they received notification of communications from fraudflagged accounts before Match completed its fraud review process; in other words, the FTC challenges the fraud review process Match conducted for its subscribers as compared to nonsubscribers.” The FTC’s assertion of Match.com’s bad faith “is merely semantics. Based on its own allegations, the FTC challenges Match’s conduct related to its internal efforts to review user accounts for being fake. The FTC seeks to impose liability on Match for failing to conduct or complete its “fraud review” process before sending nonsubscribers advertisements of fraud-flagged communications thereby allowing them access to those communications. “It would be impossible for service providers to screen each of their millions of postings for possible problems.”” [cite to Zeran].

[MAY 2024 UPDATE: Jones v. Russell, 2024 WL 2132541 (Ohio Ct. App. May 13, 2024). Match Group loses Section 230 defense for its own marketing claims.]

* Elliot v. Donegan, 2022 WL 992527 (E.D.N.Y. March 31, 2022). This is the case involving the “Shitty Media Men” Google spreadsheet. The court says the spreadsheet creator didn’t qualify for Section 230 on summary judgment because 230 is an affirmative defense (so the defense has the burden of persuasion) and all of the defendant’s arguments against encouraging illegal content were conclusory or unsupported by admissible evidence. Ugh. Prior blog post.

* Thibodeaux v. Starx Investment Holdings, Inc., 2021 WL 4927417 (Tex. Ct. App. Oct. 22, 2021):

the focus of GCC’s participatory-liability claims, as noted in its appellate brief, is its allegation that the Thibodeauxes conspired with others, or encouraged and assisted them, to engage “in the act itself of posting a negative review when that person had absolutely no experience with GCC and no firsthand knowledge of GCC.” That is, GCC alleges that the Thibodeauxes encouraged others to disseminate in their own words defamatory information about GCC, not that the Thibodeauxes should be treated as the speaker or publisher of independent defamatory content potentially created by those other users. Thus, the Thibodeauxes cannot show as a matter of law that Section 230(c)(1) would bar GCC’s participatory-liability claims.

* Taylor v. Apple, Inc., 2022 WL 35601 (N.D. Cal. Jan. 4, 2022):

The prior dismissal order rejected Apple’s contention that the Communications Decency Act (“CDA”), 47 U.S.C§ 230. § 230, bars plaintiffs’ claim in its entirety. In its current motion to dismiss, Apple renews that argument. Again, were the claim otherwise viable here, Apple’s liability would be premised on its participation in marketing and distributing an illegal gambling device. For the reasons explained in the prior order, such a claim would not be insulated by § 230. The issue is moot, however, given plaintiffs’ failure to advance a viable claim.

* Nat’l Coalition on Black Civic Participation v. Wohl, 2021 U.S. Dist. LEXIS 177589 (S.D.N.Y. Sept. 17, 2021). Some defendants made robocalls that discouraged African-Americans from voting by mail. I hope those defendants rot in Hell. This ruling involves the service those defendants used to disseminate their robocall. The court says Section 230 doesn’t apply. First, the court questions if the robocall service is a provider/user of an interactive computer service. Second, “the NY AG has sufficiently alleged that the Message Defendants acted as more than a passive publisher or neutral intermediary in the circumstances of this case.” The court says: “the Message Defendants’ active efforts in targeting Black neighborhoods for dissemination of the robocall message so as to maximize its threatening effect “contribute[] materially to the alleged illegality of the conduct” and transform the Message Defendants into much more than a “neutral intermediary.”” An unfortunate footnote: “the Message Defendants nonetheless can be said to have developed the message at issue by making the message more visible to the Black voters they helped target and to whom the robocalls were sent.”

* Chang v. TripAdvisor LLC, 2021 WL 6237376 (Mass. Superior Ct. Nov. 19, 2021). TripAdvisor denied Section 230 protecton for third-party ads. “While Mr. Chang does not allege the extent of Defendants’ contributions to the description of the safety measures in the advertisement, it is certainly plausible that the text describing such safety measures was created at least in part by Defendants.” The plaintiff lost anyway.

* Coffee v. Google LLC, 2022 WL 94986 (N.D. Cal. Jan. 10, 2022). This is a case over loot boxes. The court again grants a Section 230 dismissal. “In the present case, Google’s conduct in processing sales of virtual currency is not alleged to be illegal….Google’s 30% cut of virtual currency sales is the same 30% cut that Google receives with respect to all transactions processed through the Play Store….Plaintiffs in the present case seek to impose liability if Google processes lawful transactions for virtual currency where such currency could be used to buy Loot Boxes in third-party apps downloaded from the Play Store.” Prior blog post.

* Intango, Ltd. v. Mozilla Corp., 2020 WL 12584274 (N.D. Cal. Aug. 25, 2020). Mozilla removed the plaintiff’s browser add-ons for allegedly violating its rules. Intango sued. Mozilla won on Section 230(c)(1) grounds for Intango’s tort claims and won on the merits with respect to Intango’s claims for breach of Mozilla’s distribution agreement, which had a provision saying that Mozilla could unilaterally terminate add-ons in its sole discretion.

* Great Northern Insurance Co.  v. Amazon.com, Inc., 524 F.Supp.3d 852  (N.D. Ill. March 9, 2021):

Great Northern’s negligent misrepresentation claim is barred by § 230 of the Communications Decency Act (“CDA”). The CDA states, in relevant part, that “[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.” As the Seventh Circuit has explained, the CDA “limits who may be called the publisher of information that appears online.” And in Chicago Lawyers’ Committee for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666 (7th Cir. 2008), the Seventh Circuit held that the CDA barred a claim alleging that craigslist, an online messaging board, was liable for discriminatory housing advertisements that its users posted on its website. Likewise here: Because Amazon “is not the author” of the Paradise hoverboard description, it cannot “be treated as the ‘speaker’ of [that content]” for purposes of the negligent misrepresentation claim.

* Dunham v. Lei, 2021 U.S. Dist. LEXIS 195571 (C.D. Cal. June 7, 2021):

The Complaint sufficiently alleges that ooShirts itself—not any third party—utilized Dunham’s name and likeness without his consent to advertise infringing products. The CDA does not provide immunity for “co-developers” who “materially contribut[e] to [the website’s] alleged unlawfulness.” On the factual allegations in the Complaint, ooShirts is an information service provider that has materially contributed to the development of content that misappropriates Dunhams’ right to publicity.

* Murrey v. Cheaterreport.com, 2021 Cal. Super. LEXIS 121870 (Cal. Superior Ct. May 14, 2021): “Plaintiff alleges AWS, Cloudfare, and Automattic are internet service providers who provided services to cheaterreport.com. Plaintiff alleges these defendants hosted or assisted in the defamatory information posted online by cheaterreport.com. The “broad immunity” provided by section 230 would bar these claims.”

* Dean v. Meta Platforms, Inc., 2022 WL 899529 (N.D. Ohio March 28, 2022). Facebook defeats a defamation claim based on third-party content WITHOUT relying on Section 230.

    * Engel v. Twitter, 2021 WL 5813691 (E.D. Wis. Nov. 19, 2021):

    Engel’s complaint is clearly baseless and based on an indisputably meritless legal theory. Engel alleges the Twitter account “@DylanEngel91” is not him and “looks to be an identity theft.” Engel does not provide any details to support this conclusory allegation. Even accepting Engel’s allegations as true—that there is someone out there pretending to be him on Twitter—Engel’s complaint does not implicate any federal laws. Furthermore, under 47 U.S.C. § 230, Twitter has no civil liability for information on its platform put there by its users.

    * Does v. Murphy, 2021 WL 5828070 (D.S.C. June 16, 2021): “Freesites claims immunity under Section 230 of the CDA, which protects “computer service providers” from liability arising from content made available on their platforms by third party users acting as “information content providers.” The protection claimed here is an affirmative defense, which does not justify dismissal under Rule 12(b)(6).” (Sigh).

    * Greer v. Moon,  2021 WL 4291197 (D. Utah Sept. 21, 2021). Message board qualifies for Section 230 protection for third-party posts.

    * Bugoni v. Google, Inc., 2022 WL 564652 (9th Cir. Feb. 24, 2022): “Piero A. Bugoni appeals pro se from the district court’s judgment dismissing his action alleging violations of the Fair Credit Reporting Act and defamation against search engine operators….The district court properly dismissed Bugoni’s action because defendants have immunity for publishing third party content under the Communications Decency Act.”

    * Liptok v. Facebook, 2021 U.S. Dist. LEXIS 255276 (M.D. Pa.). A magistrate report from December 31, 2021 rejected Liptok’s account suspension suit because Facebok isn’t a state actor and Section 230 protects Facebook. Affirmed by the supervising judge on March 22, 2022.

    * Asher Enters. v. First Am. Title Ins. Co., 2020 Cal. Super. LEXIS 52132 (Cal. Superior Ct. Oct. 7, 2020). Auction.com qualifies for Section 230 immunity for information provided by third-party trustees.

    * Vargasan v. MG Freesites, Ltd., 2022 WL 1414491 (W.D. Ky. May 4, 2022). The court rejects a FOSTA claim when the plaintiff alleged that his ex-wife and his ex-fiancee were “trafficked” on Pornhub.

    * Cono v. Facebook, 2021 Cal. Super. LEXIS 80089 (Cal. Superior Ct. June 21, 2022). Section 230 preempts an account termination case, plus Facebook isn’t a state actor.

    * Flanders v. Google, Inc., 2019 Cal. Super. LEXIS 89477 (Cal. Superior Ct. Aug. 19, 2019). Section 230 protects Google search results.

    * Kurland & Assocs., P.C. v. Glassdoor, Inc., 2022 N.Y. App. Div. LEXIS 3237 (N.Y. App. Div. May 19, 2022). Glassdoor defeats defamation claim due to Section 230.

    * Stebbins v. Polano, 2022 U.S. Dist. LEXIS 95651 (N.D. Cal. March 8, 2022): “to the extent that Plaintiff’s injunction would force the Corporate Defendants to remove non-infringing content, that relief would run afoul of Section 230 of the Communications Decency Act, which immunizes service providers from liability for publishing content provided by third parties.”

    * Forrest v. Facebook, Inc., 21-CIV-05055 (Cal. Superior Ct. April 22, 2022): This case involves cryptocurrency ads, featuring Forrest, that are allegedly scams. “Forrest’s claims are based on Facebook’s using automation to determine where certain ads are seen and by whom. Facebook is being sued for its role as a publisher of ads. Therefore, Section 230(c)(1) immunizes Facebook from liability for all claims arising from Facebook’s role as a publisher.” Also: “The claims in the FAC are not based on Plaintiff’s use of Facebook; they are based on Facebook’s conduct. Therefore, the Terms of Service do not apply to Forrest’s claims. The claims asserted by Forrest could be asserted by a person who never used Facebook, but suffered the same harm. It is unreasonable to hold that the Terms of Service are a defense against a Facebook user, but not against a non-Facebook user who has suffered the same harm.”

    * Aellis O. v. Connor, 2022 WL 2229421 (S.D. Cal. June 21, 2022): “Even if Plaintiff had adequately alleged falsity, however, his claim for libel against Google still fails….Here, the material was unequivocally provided by another party. Immunity extends even when a website operator is on notice that the posting is potentially defamatory.”

    * Medina v. Newfold Digital Inc., 2022 WL 2517247 (N.D. Cal. July 7, 2022). “The negligence claim is barred by section 230 of the Communications Decency Act because it treats Newfold as the publisher or speaker of the Doe defendants’ content. The crux of the claim is that Newfold breached a duty to Medina by not terminating the Doe defendants’ web hosting and email services despite knowing of or negligently failing to discover their scheme.”

    * Schneider v. Tripadvisor LLC, 2022 Cal. Super. LEXIS 21717 (Cal. Superior Ct. March 23, 2022):

    Plaintiff alleges as part of his negligence claim that Defendants “failed to disclose any information relating to whether they vetted [Hughes’s Property], thereby misrepresenting and/or concealing material facts and perpetuating an illusion that the property was safe, and inducing the rental of the property which led to the Decedents death.” However, even if Defendants could not be held liable for any content provided by Hughes, the crux of Plaintiff’s claim is that Defendants failed to investigate, inspect, or enforce its own policies and any safety requirements for the listed short-term rentals. As stated above, Plaintiff has sufficiently pled a cause of negligence on those grounds and a demurrer to only part of the cause of action must be overruled. Additionally, Plaintiff also alleges that Defendants engaged in misrepresentation regarding the safety of the short-term rentals allegedly offered by them on the Website, therefore, liability would not purely be based on a third-party’s content.

    * Newman v. Google LLC, 2022 WL 2556862 (N.D. Cal. July 8, 2022). Dismissing the case again, but saying breach of contract claim (and associated conversion/replevin claims) might have a chance if repled properly. The court also reemphasizes that the PruneYard claim is a loser.

    * Chamber of Progress, Understanding Section 230 & the Impact of Litigation on Small Providers

    * Reason: Australia Offers a Terrifying Vision of an Internet Without Section 230