An interpretive framework for narrower immunity under section 230 of the communications decency act

Harvard Journal of Law and Public Policy

Volumn 33, Issue 2, 2010, Pages 863-883

  Dickinson, Gregory M ^a  

^a NONE

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EID: 78049286902     PISSN: 01934872     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (124)

1. Pub. L. No. 104-104, 110 Stat. 133 (1996).
2. See Zeran v. AOL, Inc., 129 F.3d 327, 330-31 (4th Cir. 1997) (reviewing the congressional intent behind Section 230).
3. See 47 U.S.C. §230(b) (2006) ("It is the policy of the United States... to remove disincentives for the development and utilization of blocking and filtering technologies....");
4. Zeran, 129 F.3d at 331 ("Another important purpose of §230 was to encourage service providers to self-regulate the dissemination of offensive material over their services.");
5. CONG. REC. 15,503 (1995) (statement of Sen. Exon) ("[T]he worst, most vile, most perverse pornography is only a few clickclick-clicks away from any child on the Internet.").
6. See 47 U.S.C. §230(a)(3) (2006) ("The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.");
7. Zeran, 129 F.3d at 330 ("Congress recognized the threat that tort-based lawsuits pose to freedom of speech in the new and burgeoning Internet medium.").
8. 47 U.S.C. §230(c), (f)(3) (2006).
9. As mere hosts of content created by others, blog-hosting sites are immune from defamation liability under a straightforward application of Section 230. For a thoughtful discussion of the slightly more difficult question of the applicability of Section 230 immunity to Wikipedia,
10. see Ken S. Myers, Wikimmunity: Fitting the Communications Decency Act to Wikipedia, 20 HARV. J.L. & TECH. 163 (2006).
11. No. 31063/94,1995 WL 323710 (N.Y. Sup. Ct. May 24,1995).
12. Distributors, such as libraries, bookstores, and telephone companies, who "deliver, transmit, or facilitate defamation [but] have only the most attenuated or mechanical connection with the defamatory content" are not liable "unless [they] know[] or should know of the defamatory content." Publishers and republishes, such as book presses and newspapers, on the other hand, are responsible for all harms caused by their defamatory publications. DAN B. DOBBS, THE LAW OF TORTS § 402 (2000).
13. 1995 WL 323710, at *4.
14. See 47 U.S.C. §230(c)(2) (2006).
15. See Mark A. Lemley, Rationdizing Internet Safe Harbors, 6 J. TELECOMM. & HIGH TECH. L. 101, 103 (2007) ("[Section 230] has been interpreted quite broadly to apply to any form of Internet intermediary, including employers or other companies who are not in the business of providing Internet access and even to individuals who post the content of another. And it has been uniformly held to create absolute immunity from liability for anyone who is not the author of the disputed content, even after they are made aware of the illegality of the posted material and even if they fail or refuse to remove it." (footnotes omitted)).
16. 129 F.3d 327 (4th Cir. 1997).
17. See id. at 330 ("[L]awsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions-such as deciding whether to publish, withdraw, postpone or alter content-are barred."). The plaintiff in Zeran alleged that America Online had unreasonably delayed in retracting defamatory messages posted by a third party, refused to post retractions to those messages, and failed to screen for and prevent similar future postings.
18. Id. at 328. The court rejected these arguments, interpreting the text of Section 230 to preclude liability even where a service provider is on notice of and in a position to prevent or remove potentially defamatory content. The entire inquiry turned on the identity of the content's author.
19. Id. at 330-32 ("By its plain language, §230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.").
20. For a useful table of cases illustrating the expanding scope of Section 230 immunity, see Myers, supra note 6, at 205-08. See also H. Brian Holland, In Defense of Online Intermediary Immunity: Facilitating Communities of Modified Exceptionalism, 56 U. KAN. L. REV. 369, 374 (2008) ("Following Zeran, and building on that court's reading of both the statute and the policies sought to be effected, courts have consistently extended the reach of §230 immunity along three lines: (1) by expanding the class who may claim its protections; (2) by limiting the class statutorily excluded from its protections; and (3) by expanding the causes of action from which immunity is provided.");
21. Brandy Jennifer Glad, Comment, Determining What Constitutes Creation or Development of Content Under the Communications Decency Act, 34 Sw. U. L. REV. 247, 253-58 (2004) (individually discussing several cases in the "series of decisions that offered increasingly broader immunity for ISPs").
22. 992 F. Supp. 44 (D.D.C. 1998).
23. Id. at 47, 50.
24. See Universal Commc'n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 418 (1st Cir. 2007);
25. Batzel v. Smith, 333 F.3d 1018, 1027 (9th Cir. 2003);
26. Green v. AOL, Inc., 318 F.3d 465, 471 (3d Cir. 2003);
27. Ben Ezra, Weinstein, & Co. v. AOL, Inc., 206 F.3d 980, 986 (10th Cir. 2000).
28. But see Chi. Lawyers' Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 670 (7th Cir. 2008). Judge Easterbrook reasons in Craigslist that other circuits have extended immunity too far by "treating § 230(c)(1) as a grant of comprehensive immunity from civil liability for content provided by a third party" and urges instead immunity only for publicationbased torts.
29. Id. Because publication is not an element of copyright infringement, Judge Easterbrook's interpretation would allow, for example, computer service providers to be held liable for contributory copyright infringement if their systems were designed to help people steal music.
30. See Batzel, 333 F.3d at 1037 (Gould, J., concurring in part and dissenting in part).
31. 47 U.S.C. §230(c)(1) (2006).
32. See Batzel, 333 F.3d at 1037.
33. Subsection (c)(2) reads: "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 [objectionable content]." 47 U.S.C. §230(c)(2) (2006).
34. The rule against surplusage presumes that Congress does not include redundant or otherwise unnecessary language in statutes. WILLIAM N. ESKRIDGE, JR. ET AL., LEGISLATION AND STATUTORY INTERPRETATION 266 (2000);
35. see also Kungys v. United States, 485 U.S. 759, 778 (1988) (calling it the "cardinal rule of statutory interpretation that no provision should be construed to be entirely redundant").
36. Doe v. GTE Corp., 347 F.3d 655, 660 (7th Cir. 2003) (Easterbrook, J.).
37. See id. (noting that if the majority approach is correct, "then §230(c) as a whole makes ISPs indifferent to the content of information they host or transmit: whether they do (subsection (c)(2)) or do not (subsection (c)(1)) take precautions, there is no liability under either state or federal law" (emphasis added)).
38. See, e.g., Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1184 (9th Cir. 2008) (searching dictionaries, case law, and the text of the statute for the "ordinary meaning" of "development");
39. Batzel, 333 F.3d at 1031 ("The 'development of information' therefore means something more substantial than merely editing portions of an e-mail and selecting material for publication.");
40. Ben Ezra, Weinstein & Co. v. AOL, Inc., 206 F.3d 980, 984-86 (10th Cir. 2000) (holding defendant not liable when plaintiff alleged defendant was acting as both computer service and content provider);
41. Anthony v. Yahoo!, Inc., 421 F. Supp. 2d 1257, 1262-63 (N.D. Cal. 2006) (stating that even when Yahoo! did not create the online material, the CDA "[did] not absolve Yahoo! from liability for any accompanying misrepresentations" they made that the material was genuine);
42. MCW, Inc. v. Badbustaessbureau.com, L.L.C., No. Civ. A.3:02-CV-2727-G, 2004 WL 833595, at *8 (N.D. Tex. Apr. 19, 2004) ("The distinction between merely publishing information provided by a third-party as an interactive computer service and actually creating or developing any of the information posted as an information content provider is critical [and] determines whether the CDA provides immunity.");
43. Carafano v. Metrosplash.com, Inc., 207 F. Supp. 2d 1055,1066-68 (CD. Cal. 2002) (finding that defendant, although a computer service, was also an in-formation content provider, and thus could not invoke Section 230 immunity);
44. Blumenthal v. Drudge, 992 F. Supp. 44, 50-51 (D.D.C 1998) (discussing the effects of a licensing agreement between AOL and Drudge on AOL's immunity under Section 230);
45. Gentry v. eBay, Inc., 121 Cal. Rptr. 2d 703, 714-18 (Cal. Ct. App. 2002) (concluding that plaintiff failed to prove that eBay acted "outside the immunity for service providers").
46. See, e.g., Robert G. Magee & Tae Hee Lee, Information Conduits or Content Developers ? Determining Whether News Portals Should Enjoy Blanket Immunity from Defamation Suits, 12 COMM. L. & POL'Y 369 (2007);
47. Bryan J. Davis, Comment, Untangling the "Publisher" Versus "Information Content Provider" Paradox of 47 U.S.C. § 230: Toward a Rational Application of the Communications Decency Act in Defamation Suits Against Internet Service Providers, 32 N.M. L. REV. 75 (2002);
48. Glad, Comment, supra note 14.
49. Zeran and later decisions have made it quite clear that a computer service provider need not be a mere conduit in order to qualify for immunity. So long as its actions do not take it out of the traditional realm of editorial discretion and into the realm of authorship, a computer service will retain its Section 230 immunity. Zeran v. AOL, Inc., 129 F.3d 327, 330 (4th Cir. 1997) ("[Section] 230 precludes courts from entertaining claims that would place a computer service provider in a publisher's role. Thus, lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions-such as deciding whether to publish, withdraw, postpone or alter content-are barred."). Of course, at the extreme, the exercise of traditional editorial functions can start to look very much like co-authorship.
50. No. Civ. A.3:02-CV-2727-G, 2004 WL 833595 (N.D. Tex. Apr. 19, 2004).
51. The defendant's website, "The Ripoff Report," can be accessed at both http:// www.badbustaessbureau.com and http://www.ripoffreport.com.
52. MCW, 2004 WL 833595, at *1.
53. The plaintiff alleged, among other violations, unfair competition, business disparagement, and trademark infringement. Id. at *2.
54. Id. at *7.
55. Id. at *1,*9 nn. 10-11.
56. Id. at *10.
57. Id. at *7-8 ("The CDA requires courts to determine ... when content provided by third-parties is somehow transformed into content created or developed by an interactive computer service. The distinction between merely publishing information provided by a third-party as an interactive computer service and actually creating or developing any of the information posted as an information content provider is critical." (citation omitted)).
58. 47 U.S.C. §230(f)(3) (2006).
59. The MCW court ultimately concluded that BBB was not entitled to protection under Section 230. Id. at *10. Its conclusion was based in part on the argument that even if BBB was not literally the creator or developer of the content at issue, it was at the very least "responsible ... for the creation or development" of that content.
60. Id. at *10 n.12. This interpretation of Section 230(f)(3)'s definition of information content provider is broader than the majority view, narrowing Section 230 immunity. It provides, however, no more guidance than does the majority view for determining where to draw the line between mere service providers and content providers. It simply moves that line in a direction less favorable to immunity.
61. Zeran v. AOL, Inc., 129 F.3d 327, 330 (4th Cir. 1997) ("[Section] 230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.").
62. See, e.g., Carafano v. Metrosplash, Inc., 339 F.3d 1119, 1120-21 (9th Cir. 2003);
63. Green v. AOL, Inc., 318 F.3d 465, 468 (3d Cir. 2003);
64. Ben Ezra, Weinstein, & Co. v. AOL, Inc., 206 F.3d 980, 983 (10th Cir. 2000);
65. Novak v. Overture Servs., Inc., 309 F. Supp. 2d 446, 452-53 (E.D.N.Y. 2004);
66. Blumenthal v. Drudge, 992 F. Supp. 44, 50 (D.D.C 1998);
67. Doe v. AOL, Inc., 783 So. 2d 1010,1018 (Fla. 2001).
68. This example is from Fair Housing Council of San Fernando Valley v. Roommates.com, LLC. 489 F.3d 921, 928 (9th Cir. 2007).
69. The scenario is, unfortunately, not all that far-fetched. Consider sites such as DontDateHimGirl.com, ManHaters.com, and TrueDater.com that offer disgruntled lovers the opportunity to vent their frustrations and warn future victims of their ex-partners' faults, mixing public service and sweet revenge. See Lizette Alvarez, (Name Here) Is a Liar And a Cheat, N.Y. TIMES, Feb. 16, 2006, at G1.
70. 47 U.S.C. §230(f)(3).
71. Zeran, 129 F.3d at 330.
72. 47 U.S.C. §230(b) (2006).
73. Zeran, 129 F.3d at 330.
74. Jae Hong Lee, Note, Batzel v. Smith & Barrett v. Rosenthal: Defamation Liability for Third-party Content on the Internet, 19 BERKELEY TECH. L.J. 469, 491 (2004) ("[T]he Internet is no longer in its infancy, having grown into a vigorous and muscular adolescent.").
75. See Magee & Lee, supra note 26 (arguing that the same defamation standard should apply to both print and web-based news portals).
76. Newspapers author most of their material and so are not in a position to benefit from Section 230 immunity. Third-party-authored advertisements, though, are the exception. In the print context, courts have held primary publishers like newspapers responsible even for advertisements prepared by others. See DOBBS, supra note 8, §402 (citing Triangle Pubs., Inc. v. Chumley, 317 S.E.2d 534 (Ga. 1984)). Online newspapers, however, would be immune from liability under Section 230.
77. See, e.g., Holland, supra note 14, at 391-404.
78. See Hearing on Cyberbullying and other Online Safety Issues for Children; HR. 1966, the "Megan Meier Cyberbullying Prevention Act";
79. and HR. 3630, the "Adolescent Web Awareness Requires Education Act (AWARE Act) Before the H. Comm. on the Judiciary, 111th Cong. (2009), avdlable at http://judiciary.house.gov/heartags/hear-090930.html (testimony of John Palfrey, Harvard Law Sch.) ("[N]ewly criminalizing a broad swath of online speech is not the right general approach. Nor do I favor a set of rules that apply only in cyberspace and not in offline life. The rules should, to the greatest extent possible, be the same in the online context as offline. We should strive to apply rules of general applicability to the Internet context.");
80. JOHN PALFREY & URS GASSER, BORN DIGITAL: UNDERSTANDING THE FIRST GENERATION OF DIGITAL NATIVES 106-07 (2008) ("The scope of the immunity the CDA provides for online service providers is too broad.... There is no reason why a social network should be protected from liability related to the safety of young people simply because its business operates online.");
81. see also Susan Freiwald, Comparative Institutional Andysis in Cyberspace: The Case of Intermediary Liability for Defamation, 14 HARV. J.L. &TECH. 569, 654 (2001) ("[T]otal immunity for intermediaries rather than distributor liability represents a failure of public policy and the poor resolution of a legal conflict."); Lemley, supra note 11, at 101-02 (arguing that Section 230's immunity provision is inconsistent with and less desirable than other federal Internet intermediary safe harbors);
82. Melissa A. Troiano, Comment, The New Journalism? Why Traditional Defamation Laws Should Apply to Internet Blogs, 55 AM. U. L. REV. 1447, 1475 (2006) ("Because many bloggers utilize their blogs to attract a large public audience in a way that resembles the function of traditional print journalism, bloggers should not be immune from suit simply because they publish their work on the Internet. Instead, bloggers who choose to share their views with the public, and who individually monitor their content, should be responsible for ensuring the legality of their content prior to publication.").
83. 521 F.3d 1157 (9th Cir. 2008).
84. Id. at 1161.
85. Id. at 1161-62.
86. Id. at 1166.
87. Roommates.com, 521 F.3d at 1162. The Fair Housing Act prohibits discrimination on the basis of "race, color, religion, sex, familial status, or national origin," 42 U.S.C. §3604(c) (2006), and the California fair housing law prohibits discrimination on the basis of "race, color, religion, sex, sexual orientation, marital status, national origin, ancestry, familial status, source of income, or disability." CAL GOV'T CODE §12955 (West 2005).
88. Roommates.com, 521 F.3d at 1162.
89. Id. at 1166.
90. Id. at 1166-67.
91. See, e.g., MCW, Inc. v. Badbusinessbureau.com, L.L.C, No. Civ. A.3:02-CV2727-G, 2004 WL 833595 (N.D. Tex. Apr. 19, 2004); see also Chi. Lawyers' Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 670-71 (7th Cir. 2008) (rejecting majority view of Section 230 immunity and instead interpreting Section 230 immunity to apply only to publication-based torts);
92. Batzel v. Smith, 333 F.3d 1018, 1033 (9th Cir. 2003) (reasoning that a defendant would not be immune under Section 230 where, though the content was provided by a third party, it was not provided with the expectation that it would be posted to the Internet).
93. See supra Part III. 61. No. 31063/94,1995 WL 323710 (N.Y. Sup. Ct. May 24,1995).
94. See supra Part III. B.
95. See supra Part III. A.
96. See RESTATEMENT (SECOND) OF TORTS §577(2) (1977).
97. 836 F.2d 1042 (7th Cir. 1987).
98. Id. at 1044.
99. Id. at 1045, 1047.
100. Id. at 1047.
101. For a general treatment of contributing tortfeasor (or "civil conspiracy") liability, see RESTATEMENT (SECOND) OF TORTS §876: "For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he (a) does a tortious act in concert with the other or pursuant to a common design with him, or (b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself...." Id.
102. See DOBBS, supra note 8, §340; see also Drake v. Keeling, 299 N.W. 919 (Iowa 1941); Smithson v. Garth, 3 Lev. 323, 83 Eng. Rep. 711 (1691).
103. 687 N.E.2d 481 (Ohio Ct. App. 1996).
104. Id. at 486-87.
105. Id.
106. Id. at 498.
107. See supra Part III.A.
108. 47 U.S.C. §230(c)(1) (2006).
109. See supra Part III.A.
110. Apart from the absurd results that follow an interpretation providing immunity in absolutely every instance of third-party-created content, an interpretation that preserves traditional common law bases of vicarious liability can be justi-fled in another way as well: Ratification liability and, to a lesser extent, concert of action liability are based on the idea that tortious action belongs not only to the immediate tortfeasor but also to the vicariously liable actor. This is easy to see in ratification liability. Indeed, the word "ratification" suggests the principle. By approving or sanctioning the actions of another, one takes ownership of those actions such that it is no different than if one had committed them personally. Similarly, conspiracy liability is based on the idea that liability flows from the tortious course of conduct taken as a whole, and that each individual participant is responsible for the entirety of the conduct as if each aspect were individually undertaken. Viewed from this perspective, ratified content or coconspiratorcreated content is not really third-party-created content at all. It is content created by the service provider vicariously.
111. Indeed, no one could reasonably argue that Section 230 was intended to eliminate all bases of vicarious liability. There is no doubt, for instance, that Section 230 left intact the doctrines of respondeat superior and agency liability. A website owner who argued that he should receive immunity because it was his employee, a third party, who posted tortious material would be laughed out of court. All courts to consider the issue have simply assumed that standard principles of agency law remain unchanged by Section 230's immunity provision.
112. See Batzel v. Smith, 333 F.3d 1018, 1035 (9th Cir. 2003) ("Agency is the fiduciary relationship that arises when one person (a 'principal') manifests assent to another person (an 'agent') that the agent shall act on the principal's behalf and subject to the principal's control, and the agent manifests assent or otherwise consents so to act. In order for [the defendant] to be held vicariously liable for the torts of [the third party tortfeasor] on a theory of agency, [the defendant] must have had the ability to control [the third party's] activities." (internal citations omitted));
113. Higher Balance, LLC v. Quantam Future Group, Inc., No.08-223-HA, 2008 WL 5281487, at *7 (D.Or. 2008) ("[P]laintiff has failed to show that the [website] forum moderators are... staff members. Without this evidentiary link, plaintiffs have not shown that the forum moderators are employees or agents ....");
114. Blumenthal v. Drudge, 992 F. Supp. 44, 50 (D.D.C. 1998) ("It is also apparent to the Court that there is no evidence to support the view originally taken by plaintiffs that [the third party tortfeasor] is or was an employee or agent of [the defendant]."). Ratification and concert of action are no different.
115. No. 31063/94, 1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995); see also supra Part I.
116. Stratton, 1995 WL 323710, at *4.
117. Id.
118. See id.;
119. RESTATEMENT (SECOND) OF TORTS §§577(2), 578 (1977)(tacludtag failure to remove defamatory materials in the definition of publication).
120. See supra Part III.B.
121. 47 U.S.C. §230(f)(3) (2006).
122. See Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1166-67 (9th Cir. 2008) ("The projectionist in the theater may push the last button before a film is displayed on the screen, but surely this doesn't make him the sole producer of the movie.").
123. Excluding, of course, ratification by failure to censor. Such theories of ratification are expressly prohibited by subsection (c)(2).
124. See, e.g., Roommates.com, 521 F.3d at 1183 (McKeown, J., concurring in part and dissenting in part) ("The majority's definition of 'development' would transform every interactive site into an information content provider and the result would render illusory any immunity under §230(c).").