Section 230 Preempts FOSTA Claim–Doe v. WebGroup Czech Republic

July 26, 2024 · by Eric Goldman · in Content Regulation, Derivative Liability

This is a FOSTA case. It reached the 9th Circuit on personal jurisdiction grounds. The 9th Circuit held that some foreign defendants were subject to jurisdiction. On remand, the court dismisses the remaining defendants primarily due to Section 230, with leave to amend.

The court summarizes the facts:

Plaintiff alleges she was trafficked as a minor and her traffickers filmed her while she was engaged in sex acts. They then uploaded the videos (“Videos”) to adult websites operated by two of the defendants, i.e., WebGroup Czech Republic, a.s. (“WGCZ”) and NKL Associates, s.r.o. (“NKL”).

The opinion focuses on the Section 230 defense:

ICS Provider. “WGCZ and NKL provide an interactive computer service because they run a website.”

Publisher/Speaker Claims. After an extended review of Barnes, Roommates, and Lemmon, the court discusses two arguments:

* Possession. “insofar as Plaintiff seeks to hold Defendants liable for “receipt” of the illicit videos, these claims are immune from liability under Section 230. Receipt of materials or content is, as it were, simply the first step in any publishing regime; if so, then mere receipt of illicit material is not sufficient to preclude immunity under Section 230.”

I don’t recall seeing a similar court discussion about possession/receipt. The Lemmon v. Snap case also involved preparatory steps towards publication but found Section 230 didn’t apply. Here, if the law recognized the illegality of “possessing” illegal content, then the upload could create its own legally recognizable harm even if it’s never meant for, or made available for, downloading. See my post on accidental CSAM downloads. However, the scienter requirements for possessing contraband, in this case, likely would be satisfied only after the content has been published.

* Revenue-Sharing. “revenue-sharing — so long as the methods by which revenue sharing is conducted are neutral with respect to the content — is again an insufficient basis for liability here. As was made clear in Roommates, if a website simply provides neutral tools specifically designed to accomplish a benign objective—e.g., posting videos and allowing for monetization based on views—the website cannot be said to be a co-developer of illicit content.” A reminder that there is no such thing as “neutral” revenue-sharing programs.

Third-Party Content. “Plaintiff has failed to adequately allege that Defendants’ conduct goes beyond the neutral tools protected within the ambit of Section 230 immunity.” the court rejects the plaintiff’s attempts to overcome this:

Defendants’ “guidelines” do not promote illegal content.
Defendants’ creation of thumbnail images is a “neutral tool.”
“the existence of ‘titles, tags, keywords, search terms, and categories indicative of CSAM’…are, again, either a standard publishing function or a neutral tool made available to all third parties seeking to upload material onto Defendants’ websites.”
The use of VPNs is a neutral tool.

The FOSTA Exception. The Doe v. Reddit case casts a long shadow here, and the court gives the plaintiff a chance to amend the complaint to address it.

Sui Generis NCP Claim. Section 1708.85 of the California Civil Code is California’s sui generis prohibition on the distribution of non-consensual pornography, and it includes a private right of action. The court says Section 230 preempts it in this case.

Case Citation: Doe v. WebGroup Czech Republic, 2024 WL 3533426 (C.D. Cal. July 24, 2024)

More SESTA/FOSTA-Related Posts

Section 230 Preempts FOSTA Claim–Doe v. WebGroup Czech Republic

Comments and Pings