Ninth Circuit Confusion About Moderators and Section 230–Quinteros v. Innogames

I previously blogged this case in 2022. I summarized:

This lawsuit involves the freemium videogame “Forge of Empires.” The plaintiff, Penny Quinteros (a/k/a TwoCents), claims she became addicted to the game. She played the game virtually every day from 2016-19–over 10,000 hours worth–and spent over $9,000 on in-game transactions. She also claims that she was harassed by in-game moderators who are “volunteers” but compensated with extra in-game privileges and currency. She reported the harassment to support staff, but in profane and impolite messages that themselves might be construed as harassing. Eventually, it appears the game restricted her access. She sued pro se for a variety of claims. The court dismisses them all.

On appeal, the Ninth Circuit finds that the district court didn’t make any reversible errors–except that the pro se litigant should get another chance to amend the complaint, even though it’s pretty clear that it’s doomed, which sounds like everyone gets to do more work before arriving at the inevitable denouement/status quo.

This is a non-precedential opinion, which the Ninth Circuit usually reserves for rulings that aren’t contentious. Yet, last year, the 9th Circuit surprisingly issued a non-precedential opinion (Vargas v. Facebook) where it tinkered with the highly contentious Roommates.com standards. Then, this opinion monkeys around with Section 230’s exception for moderators’ activity even though the monkeying has no impact on the outcome. The 9th Circuit reverses the district court on the Section 230 dismissal, but it proves inconsequential because all of the claims fail for lack of merit. Why did this panel engage with Section 230 at all?

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The court explains how the district court got Section 230 wrong in its view:

Quinteros plausibly alleges that Forge of Empires moderators improperly accessed a sensitive image of hers, and unlawfully disseminated that image. These allegations do not treat Defendants as publishers or speakers and therefore are not covered by the CDA. Additionally, § 230 concerns only the actions of third parties. Quinteros sufficiently alleges that moderators are not third parties within the meaning of the CDA, but rather individuals with some unspecified agency relationship to Defendants

Section 230 does not necessarily apply to the acts of a service’s moderators if the moderators and the service have a legally common identity, such as employees or possibly agents. See, e.g., Internet Brands v. Jape, Enigma v. Bleeping.  [However, per the Delfino case and its progeny, Section 230 may apply to employees’ acts that are outside the scope of the agency]. Is that what’s going on here?

Per the lower court, the game’s moderators were volunteers who received non-cash benefits–a standard but low-grade moderator relationship. Yet, the court says that’s enough to hold that the moderators and game are in “some unspecified agency relationship” that strips the service of Section 230 immunity.

I’d like to know more details about this “unspecified” agency and how such a thing can exist. To me, the phrase is an oxymoron–courts can’t just randomly manufacture agency relationships. (FWIW, I did a search on Tuesday for the phrase “unspecified agency relationship” and I got a total of THREE Google results). I would also like to know how the moderators’ activities can be within the scope of this purported unspecified agency.

The illogic of the court’s position becomes even clearer in its discussion about Quinteros’ negligence claim:

she fails to allege specific facts that show the relationship between Defendants and moderators is sufficient to render Defendants vicariously liable for moderators’ actions under Washington law. For instance, Quinteros does not allege facts that establish Defendants and moderators have an employer-employee relationship, which could give rise to vicarious liability under Washington law. And to the extent Quinteros alleges Defendants were negligent in their supervision of the moderators, she has not shown any of the defendants knew or should have known that moderators would pose a risk of danger to her. She does not plausibly allege, for instance, that Defendants were aware that similar messages had been intercepted in the past, or that Defendants had a reason to believe moderators would intercept such messages. Without more, Quinteros fails to state a claim for negligence

To recap: the court says that Quinteros didn’t sufficiently allege a moderator-game agency relationship (specified, unspecified, or otherwise) to establish a negligence claim, but she did allege agency sufficiently to defeat Section 230. What? How?

It’s possible for courts to define agency relationships differently across different legal doctrines. However, this court didn’t define the scope of the agency exception to Section 230 at all (hence the “unspecified” weasel word) or why it should be easier to allege an agency to disqualify Section 230 than it is for negligence. In other words, absolutely none of this makes any sense at all.

The court’s jurisprudential hash on agency reminds me of the Ninth Circuit’s terrible Enigma v. Malwarebytes decision. In that case, the Ninth Circuit created a new Section 230 exception for “anticompetitive animus,” but the court didn’t define what constituted sufficient animus to defeat Section 230 or explain how to situate 230-disqualifying animus within the extensive body of existing antitrust law (i.e., is it more or less stringent than, or equivalent to, an antitrust law violation?). The anticompetitive animus exception provided no value to the Malwarebytes case, as the plaintiff’s case failed on the merits on remand (though the Ninth Circuit revived it, so it’s still ongoing). Furthermore, as far as I can recall, no other case has found sufficient anticompetitive animus to bypass Section 230. [Am I forgetting something?]

The Ninth Circuit has manufactured over a half-dozen Section 230 exceptions over the years, which causes extra litigation with little benefit to anyone when the plaintiffs still fail (though the story on the Lemmon exception is still being written). That record of futility should dissuade the Ninth Circuit from casually messing around with Section 230 exceptions. Instead, this non-precedential opinion does exactly that–for no good reason.

Case citation: Quinteros v. Innogames, 2024 WL 132241 (9th Cir. Jan. 8, 2024)