Yelp successful in defamation and deceptive acts and practices case
Reit v. Yelp, Inc., — N.Y.S.2d —, 2010 WL 3490167 (September 2, 2010) Section 230 of Communications Decency Act shielded site as interactive computer service; assertions regarding manipulation of reviews was not consumer oriented and therefore not actionable. As I am sure you know, Yelp! is an interactive website designed to allow the general public [...]
Communications Decency Act immunizes hosting provider from defamation liability
Johnson v. Arden, — F.3d —, 2010 WL 3023660 (8th Cir. August 4, 2010) The Johnsons sell exotic cats. They filed a defamation lawsuit after discovering that some other cat-fanciers said mean things about them on Complaintsboard.com. Among the defendants was the company that hosted Complaintsboard.com – InMotion Hosting. The district court dismissed the case [...]
Free Speech Savior or Shield for Scoundrels? An Empirical Study of Intermediary Immunity Under Section 230
As many of you who read this blog know, we spend a lot of time thinking about — and sometimes debating – section 230 of the Communications Decency Act. We’ve often lamented, however, that there isn’t a good compilation of all of the 230 cases (Eric Goldman, the dean of the 230 bar, has covered most, if not all, of the cases, but you have to sift through his excellent blog to find them). Well, back in 2008, I set out to create just such a compilation and after months of wrangling with my editors, the empirical study that research spawned is finally out in the current edition of the Loyola of Los Angeles Law Review.
I won’t recount the entire article in this post (it’s available as a PDF on SSRN), but I will highlight a few of the more interesting findings. First, here is the abstract:
In the thirteen years since its enactment, section 230 of the Communications Decency Act has become one of the most important statutes impacting online speech, as well as one of the most intensely criticized. In deceptively simple language, its provisions sweep away the common law’s distinction between publisher and distributor liability, granting operators of Web sites and other interactive computer services broad protection from claims based on the speech of third parties. Section 230 is of critical importance because virtually all speech that occurs on the Internet is facilitated by private intermediaries that have a fragile commitment to the speech they facilitate.
This Article presents the first empirical study of the section 230 case law. It begins by providing a doctrinal overview of common law liability for intermediaries, both online and offline, and describes how section 230 modifies these doctrinal approaches. It then systematically analyzes the 184 decisions courts have issued since the statute’s enactment. The Article also examines how courts have applied section 230, finding that judges have been haphazard in their approach to its application.
The Article closes by discussing the study’s findings and by offering some insights into how plaintiffs and defendants have fared under section 230. While section 230 has largely protected intermediaries from liability for third-party speech, it has not been the free pass many of its proponents claim and its critics lament. More than a third of the claims at issue in the cases survived a section 230 defense. Even in cases where the court dismissed the claims, intermediaries bore liability in the form of litigation costs, and it took courts, on average, nearly a year to issue decisions addressing an intermediary’s defense under section 230.
From February 8, 1996 (the effective date of section 230) through the conclusion of my study on September 30, 2009, state and federal courts produced a total of 184 decisions from 140 cases in which a party or the court interposed section 230 as a defense to liability for online content or acts. This is an average of 13.5 decisions per year during the thirteen-year period, with an average of 8.1 decisions each year (59.8%) holding that section 230 preempted at least one claim in the cases studied.
When I say that in 59.8% of the decisions a court dismissed at least one of the claims pursuant to section 230, this does not mean that in 40.2% of the decisions the court found for the plaintiff. The 59.8% figure only reflects decisions where the court dismissed a claim on the basis of section 230. If the court dismissed a claim on statute of limitations grounds or on the merits, I didn’t count it as a section 230 win (I explain this approach in some detail in sections III and IV of the paper). When dismissals on grounds other than section 230 are included in the calculations, the results for defendants improve substantially, with defendants winning dismissal in 76% of the cases studied.
One of the best ways to assess a statute’s impact on an area of law is to systematically compare the case law pre- and post-enactment. Unfortunately, this approach will not work for section 230, as courts issued only two reported decisions addressing an Internet intermediary’s liability for speech-based harms prior to section 230′s enactment. As a rough proxy, however, I sought to identify factors in the decisions that were germane to the question of liability under the common law, and then applied those factors in a "what if section 230 did not exist" thought experiment in order to gain insight into how section 230 has changed the liability landscape for intermediaries.
What I found was surprising. Many of the intermediaries that invoked section 230 likely would not have faced liability under the common law because they lacked knowledge of and editorial control over the third-party content at issuein the cases. Granted, I am undoubtedly overstating this because judges in the cases I analyzed did not focus on the two key determinates of liability under the common law — knowledge and editorial control — when addressing the application of section 230. Application of section 230 does not typically turn on those factors, so the calculations likely underreport the true number of defendants that would face liability under the common law. Nevertheless, my point in mentioning this is to note that many of the intermediaries who interposed section 230 as a defense did nothing more than provide an open platform for others to engage in speech.
Given this prediction, I note in the article that one might question whether section 230 is necessary. But this highlights one of section 230′s most important functions for intermediaries: it seeks to give them the legal certainty, or in First Amendment terms, "breathing space," to facilitate the distribution of third-party speech that may contain injurious or illegal content. Without this increased certainty, risk-averse intermediaries would be less willing to facilitate the speech of others and the public would be burdened by their censorship.
Yet the data show that plaintiffs continue to file claims against defendants who are clearly protected by section 230 and who likely would not face liability under standard tort theories. Currently, there is no mechanism in the statute to deter these filings nor is there a fee-shifting provision (unlike, say, anti-SLAPP statutes). Accordingly, even intermediaries who succeeded in getting a claim dismissed under section 230 still bore liability in the form of litigation costs that they were unable to recoup from plaintiffs. This latter point is particularly concerning because the research showed that it took courts nearly a year, on average, to issue a decision addressing an intermediary’s defense under section 230.
Now that I’ve whetted your interest in the article, go read the whole thing here. Over the next few weeks I’ll be posting some of the figures and tables on CMLP’s Section 230 Empirical Study Page, as well as the coding form and some of data. I plan to make the entire data set publicly available, searchable, and updatable at the 15 year retrospective/anniversary party for section 230 on March 4, 2011 at Santa Clara University that Eric Goldman is organizing. More on that later….
Update: Eric Goldman put up a blog post about the article and mentioned two statistics that puzzled him. I’ll try and address his questions here.
* The study found that 41.2% of the decisions "involved anonymous content." Eric is skeptical that this statistic implies that in more than 2/5 of the cases the primary tortfeasor could not be found. I think that skepticism is warranted.
What trips a lot of people up is that litigants and judges often conflate anonymity and pseudonymity. The use of identity abstractions, such as Social Security numbers and nicknames, is pervasive in society. These identifiers are typically referred to as pseudonyms. Simply because someone uses a pseudonym does not mean they are anonymous. Traceable details always exist; it is just a matter of how hard one looks. This is especially true on the Internet, where every computer that connects to the network must have a unique IP address and where servers and routers within the network routinely log communications.
Because the degree of anonymity a user can maintain varies depending on the nature of the communication, the systems used, and other circumstances, I chose an objective measure (objective from the researcher’s perspective) for this calculation. For purposes of this study, I tagged a decision as involving anonymous speech if the court stated that the speech was anonymous (courts are, unfortunately, very sloppy in using this term) or the parties asserted that the source was unknown. What I probably should have written was that "41.2% of the decisions involved an assertion that the content’s source was anonymous."
As Eric correctly notes, "successful anonymity is really hard." In fact, I’d say that true anonymity is exceedingly rare in the online context and that very few of the decisions in the study involved truly anonymous speech. Because of time and resource constraints, my study didn’t look below the surface of that figure. That would be a great topic for someone else to take up.
* The study also reports that "in more than half of the cases (55%), the content plaintiffs sued over was no longer available as of mid-2009." Eric notes that this suggests that "plaintiffs can get content takedowns despite 230 because the service provider voluntarily helps or the author takes the content down him/herself (or, in some cases, the court ordered the takedown)." Again, Eric is right about this.
In my view, this is another data point that shows that even those intermediaries who are protected by section 230 still face pressure — primarily litigation cost pressure — to remove content. When we looked at the availability of the content at issue in the cases, we found that when content was no longer available this was attributable to the defendant’s voluntary removal in more than a quarter (27%) of the cases. In another 18.3% of the cases, the defendant’s website was defunct. In a small number of cases (4.9%), all or some of the material was no longer available because of a court order.
T&J Towing v. Kurtz: We’ve Got The Court Documents
Last Monday, the New York Times ran an article about T&J Towing’s lawsuit against a college student, Justin Kurtz, over a Facebook group page he started called “Kalamazoo Residents against T&J Towing.” Several other news outlets and blogs have picked up the story, in no small part due to its David-and-Goliath appeal.
Kurtz apparently created the Facebook page days after T&J towed his car from the parking lot of his apartment complex. On the page, Kurtz claims that T&J removed his parking permit and improperly towed his car. Other Facebook users have chimed in—the group now has over 13,800 members, many of whom have posted comments about their own negative experiences with the company.
Given the widespread coverage, one would think that it would be easy to get a hold of the complaint and other court documents, but I had no such luck. I searched all over the Internet for the documents, skimming dozens of pages to no avail. I also tried Michigan court websites. No luck. I even emailed the reporters whobroke the story. No reply. Finally, one of Kurtz’s lawyers was kind enough to send me copies of the complaint and answer (thanks to Dani Liblang!).
The complaint is a short read. It does reveal, however, that the towing company believes that Kurtz libeled it by "falsely and publicly claimed that Plaintiffs have towed vehicles where no violation has occurred and which claims are untrue." Cmpt. ¶ 4. And Sam points out a potentially interesting Section230 issue: T&J’s complaint implies that Kurtz should be liable for the statements of others posting to his Facebook group, alleging that Kurtz "has absolutely no way of knowing whether or not all of the written submissions to his website have any truth or validity." Id.¶ 7. This may be one of those rare instances where Section 230 protects a "user of an interactive computer service," as opposed to a "provider" of such a service (like Facebook itself). See 47 U.S.C. § 230 (c)(1).
We’ll be monitoring this case in our database entry, T&J Towing v. Kurtz.
(Marshall Hogan is a rising second-year law student at Columbia Law School and a CMLP legal intern.)
Brazil Fines Google Over Dirty Jokes on Orkut; Brazilian Lawyers Weigh In
Techdirt first drew our attention to Google’s recent legal troubles in Brazil over its Orkut social networking site (which, as Mike Masnick says, is—mysteriously—only popular in Brazil). The case has gotten a lot less attention than the whole Italy kerfuffle, perhaps because it lacks the drama of a court holding executives personally accountable. But, the Brazilian case presents some obvious parallels with the Italian convictions, and it further underscores the importance of strong legal protections for intermediaries in preserving freedom expression and promoting innovation online.
Press accounts report that, on Tuesday, a Brazilian court fined Google for failing to block Orkut pages containing dirty jokes that "offended" two teenagers. The court imposed a $2700 fine for each day that the offending pages remained up and ordered Google to stop similar material from being posted in the future. Ironically, the court apparently cited Google’s censorship of material in China as proof that it was feasible to do so in Brazil, leaving out Google’s showdown with China and its ultimate decision to pull out of China altogether.
Masnick asks the questions that I’m sure are on the minds of many of our readers: "Have they no safe harbors in Brazil? Do courts really not understand
why it makes no sense to blame the service provider for actions of their
users?" I wanted to get a better understanding of the case and the Brazilian laws involved, so I sent out an inquiry through Berkman Fellow Carolina Rossini, who kindly connected me with a number of very smart and helpful Brazilian lawyers. Here’s what I learned:
Ivar Hartmann, an LL.M. in Constitutional Law and a cyberlaw researcher in Brazil, told me that the district attorney’s office for the state of Rondônia in northern Brazil filed the case against Google. Although brought by a government authority, the case is not a criminal matter, but rather a special type of civil suit called a "Public Civil Action," which works similarly to a U.S. class action in terms of the plurality of injured parties. The district attorney’s office sought "collective moral damages" and asked Google to "take down the two Orkut communities, identify the creators of such communities, [identify] all of their members . . . and [the] people who posted messages . . . considered offensive to the two teenagers affected." And, as noted above, the authorities sought and obtained an order to "prevent the future creation of new communities with similar content."
It sounds like the Orkut communities at issue in the case were created to share general gossip; they did not specifically target the two teenagers. Hartmann told me that he had not seen the content of the posts, but knew that at least three other Orkut communities with the same name—something like "Pepper Gossip"—have sprung up, as well as another community that advocates against such gossip groups.
Brazil’s Superior Justice Court, the country’s highest court for non-constitutional issues, issued the recent decision, which affirmed the state court’s ruling imposing the fine. Hartmann says that the judge who wrote the opinion is a respected jurist in Brazil, and that while his decision is debatable, he "would probably not be seen as irresponsible or lacking in good sense," at least given the "general lack of good understanding, by all judges, of how cyberspace freedom of expression works (or should work)." He points out more generally that, in Brazil, "the balance between freedom of expression and protection against
moral injury is slightly more favorable to the latter than in the U.S."
That said, Hartmann personally thinks "such cases should be decided in favor of Google and freedom of expression in general, as judges in Brazil don’t seem to have yet found the proper balance between the protection of freedom of expression and that of human dignity and privacy in cyberspace."
Marcel Leonardi, a Brazilian attorney and law professor at FGV-SP (here’s his blog), shared with me a number of insights about intermediary liability in Brazil. Leonardi confirms that Brazilian law does not provide any immunity or safe harbor for ISPs or online service providers regarding third-party content. He says that discussion on the topic is afoot because of a number of court decisions like this recent one, and that there are two different trains of thought on the issue:
[First,] strict liability for third party content: ISPs are supposed to bear the costs of the services they provide, and for the people who follow this idea, being liable for the bad use of their services is a part of the ISP risks; [Second,] no liability for third party content unless they ignore a notice-and-take down request: similar to what you have in Europe or like the DMCA in the US, where ISPs are only considered liable for third party content if they fail to act after receiving notice of illegal content.
Needless to say, the first of these two approaches sounds pretty hair-raising for intermediaries. The second is better for speech and innovation, but obviously less robust than U.S.-style Section
230 protection. One serious problem with the notice-and-takedown approach, Leonardi points out, is that it puts the burden on the intermediary to determine what is and what is not illegal content. Another, I might add, is that it incentivizes intermediaries to adopt a "take down first and ask questions later" approach, and generally puts the burden of challenging the takedown on users who have little in the way of legal expertise and economic resources.
Leonardi captures well what’s at stake for Brazil and other countries mulling the decision to adopt legal protections for online intermediaries:
As this case particularly illustrates, safe harbors for ISPs are sorely needed in Brazil, since some judges still cling to the idea that every online harm must have redress and end up holding the ISP liable even when it could not possibly prevent the harm. I find this notion particularly absurd, since this has serious implications for the growth of online services, innovation and tools available for the average user. Huge companies like Google can bear the costs of these lawsuits, but it is hard to imagine a new service springing up in such a hostile legal environment.
If anyone has something to add about the case or the legal climate for intermediaries in Brazil, please drop a note in the comments.
Photo "orkut" courtesy of Flickr user qthrul, licensed under a CC BY-SA 2.0 license.
Will Italy’s Conviction of Google Execs Stick?
I’ve no doubt that CMLP blog readers, fellow netizens that you are, are well aware of an Italian court’s conviction last week of three Google executives for invasion of privacy of an Italian teenager.
(In case you missed the story, here it is in short: the teenager (who either suffered from Down’s syndrome or autism; reports differ) was filmed by four other teens who were bullying him, and the bullies posted the video on YouTube. Google promptly removed the video after receiving a formal complaint. Italian authorities then criminally prosecuted four Google execs for defamation and invasion of privacy. Last week, the Italian court found three of the execs guilty of invasion of privacy; the defamation charges were dropped against all four. More back-story can be found in my 2008 post when the possibility of charges was first announced.)
Of course, Google is apoplectic. Much of the rest of the media world is too: Mathew Ingram of gigaom.com rounds up:
The Wall Street Journal called it “madness,” and suggested it was “crazy, even for Italy,” while the Inquirer called it “a blow against common sense and Internet freedom.” Danny O’Brien of the Electronic Frontier Foundation called it “a threat to the Internet,” and the National Post said it suggested that “Fascism is alive and well.”
And that doesn’t include Anna Masera’s commentary on The Guardian’s website, where she warns that "today Italy is a little bit more Chinese"—in the online oppression sense, of course.
So the vast majority of the responses have been damning of the Italian judge’s verdict, and Google has said they’re going to appeal. John Naughton writes for The Observer that:
[I]t’s likely that they will be vindicated because even if the Italian
appeal fails, there is always the possibility of recourse to the
European Court in Strasbourg, which will take the view that European
Union law, as currently drafted, appears to give hosting providers a
safe harbour from liability so long as they remove illegal content once
they are notified of its existence.
Certainly, that’s what I’d expect given what EU law says about all this (again, see my earlier post for more). And I agree with the media criticism above, for the most part. But there are a few outlying opinions suggesting (or indeed stating outright) that Google got what was coming to it. Mr. Ingram writes in his article that the correctness of the Italian judge’s decision hinges on what kind of company Google is.
So is Google a media company? Or is it simply a form of Internet
service provider, and therefore not directly responsible for the
content it hosts? Such a distinction is crucial to the Italian
decision. Google argued that the ruling contradicts a European Union
directive that gives service providers safe harbor from liability for content they host (the U.S. has Section 230
of the Communications Decency Act, which gives providers of electronic
services so-called “safe harbor” for content). But prosecutors argued
that because Google handled user data — and used content to generate
advertising revenue — it was a content provider, not a service
provider, and therefore liable.
The question of whether Google is a media company or not, and if so how it should be treated, has been vexing observers for years now.
Its primary business might be search and search-related ads and
marketing, but with YouTube and Blogger and Buzz and other services in
its stable, it’s also part content provider.
Then there’s Malcolm Coles, an SEO maven apparently based in Britain, who argues flat out that "Italy was right to find Google guilty." Now, I don’t know if Mr. Coles is a lawyer, because he seems to be arguing in largely colloquial moralistic terms and to be taking the prosecutors’ statements to the press as proven facts—a risky proposition. But the gist of his arguments is largely that Google "runs a publishing platform" and that the Google execs are "responsible for the systems put in place to stop abusive content being
published. If those systems have failed, it is right that senior
executives are held responsible." So as I interpret it, Coles is invoking liability on the same sort of "content provider" basis that Ingram mentions.
But the problem with this argument (and indeed, Italy’s law on the subject) is that I don’t believe that EU law (which Italy is required to incorporate domestically) makes such a distinction. Rather than fighting the legal battle over whether Google was "hosting" under Article 14 of the Directive on E-Commerce, Council Directive 2000/31/EC, 2000 O.J. (L 178) 1, (which I discussed in my post in 2008), the Italian prosecutor seems to have been effectively arguing that Google was not an "Information Society service" ("ISS") under Article 1 (2)(a) of Council Directive 98/48/EC, 1998 O.J. (L 217) 18.
Article 1 (2)(a) defines an ISS to be "any service normally provided for remuneration, at a distance, by
electronic means and at the individual request of a recipient of
services." But there’s no indication that this definition distinguishes between providers of content and providers of other services. Annex V of the same Council Directive lays out examples of services that fall outside the ISS definition, but none of them are analogous to Google. The closest that Google might come to appearing on that list is under subsection (3), which notes that television broadcasting services are "provided by transmitting data without individual demand for
simultaneous reception by an unlimited number of individual receivers
(point to multipoint transmission)" and thus not ISSes. But YouTube and the Internet generally entail both individual demand (by clicking the link) and point-to-point transmission (from server to user). I just don’t see how Google/YouTube is not an ISS, and thus not protected under EU law.
Therefore, I suspect that whatever Italian law says, Italy will lose on appeal. Either the Italian appeals court will recognize that their law fails to square with that mandated by the EU, or, as Mr. Naughton predicted in the Observer, a European court will overturn the Italian decision. Because regardless of however much Italy might like to hold Google responsible for this video, the overriding EU law just doesn’t appear to support the court’s decision.
(Arthur Bright is a third-year law student at the Boston University
School of Law
and a former CMLP Legal Intern. Before attending law school, Arthur was
the online news editor at The Christian Science Monitor.)
Image "Google Pavarotti" courtesy of flickr user annovi.frizio, licensed under a CC Attribution-Noncommercial-Share Alike 2.0 Generic.
Forwarder of defamatory email protected under Section 230
Hung Tan Phan v. Lang Van Pham, — Cal.Rptr.3d —, 2010 WL 658244 (Cal.App. 4 Dist. Feb. 25, 2010)
Defendant, a veteran of the Vietnamese military, forwarded an email to some other Vietmamese veterans which apparently defamed another veteran. He didn’t just forward the email, though. He added some commentary at the beginning, which said (translated [...]
Philly, Don’t Blame Facebook for Missing the Snowball Fight Invite
I understand you’re upset, Philadelphia. Plans for a "flash mob" snowball fight last week got out of control. Scores of teenagers stormed a local mall and nearby streets vandalizing stores and beating the hell out of each other. It’s embarrassing for you, especially because it’s happened before. It must be frustrating too because you identified the problems that can occur when large crowds gather at the Gallery at Market East. And then, just several days after your city officials and businesses meet to discuss those problems, this happens. Sure, you arrested 16 of the students responsible, but the damage is done, hundreds of dollars worth. Someone needs to pay.
You’re not alone in feeling this way. In fact, similar mobs have been causing damage for years now. There’s that public garden in England that a 350-person water-fight destroyed. There’s that party in Spain a girl hosted to get back at her soon-to-be-divorced parents. She advertised it on Facebook and 400 teens showed up causing $8.7 million in damage to her mansion home. Her parents are surely blaming social media so I can understand why you may want to as well.
But you need to breathe. Take a step back and look at the situation a bit more rationally. It’s not even certain that the most recent mob used Facebook or Twitter as you claim. Still, given the ease of coordinating such events through the service, it is likely that word of the recent snowball fight spread through Facebook. I get it. I understand why you want to lash out at Mark Zuckerberg and his ilk. But do you really think Facebook should be responsible for what 150 of your teenage residents did?
Members of your City Council do. Here is what your own Frank DiCicco and James F. Kenney said about those in the mob and the way they gathered: "While they certainly owe this city an apology and deserve to be punished under the fullest extent of the law, we believe that social media outlets should also bear some of the blame." Now these Councilmen are considering a lawsuit not only against Facebook, but against Twitter and MySpace too.
You’re smarter than that, Philadelphia. Section 230 of the Communications Decency Act exists specifically to protect websites like those you’re targeting. That law provides immunity to websites against the content third-parties post. Courts have applied this immunity to bar not only defamation and speech-based claims — like the planning of illegal activity — but those of invasion of privacy and misappropriation. Section 230 recently protected MySpace from being responsible for facilitating the meeting of a sexual predator and his 14-year-old victim.
Holding Facebook responsible for the actions of its users isn’t the way to go. Councilman Kenney probably already knows this. He said that if teens are "using those sites to conduct this thuggery, than I want to find out if it’s true, and I want to get the appropriate legal action to get them to warn us."
A warning. Now this sounds a little more reasonable. Facebook wouldn’t be responsible for what its users do, but only for alerting authorities before they do it. It’s not very feasible though; how exactly would Facebook monitor millions of accounts for discussion of illegal activity? What exactly would it look for? Let’s remember that discussing illegal activity or even advocating it is protected speech. It’s not likely Facebook could make that distinction on such a large scale, nor should that be its responsibility. Not to mention, there are serious privacy concerns involved in reporting private information. Facebook’s current policy of reporting information when it has a good faith belief that doing so will prevent illegal activity or imminent bodily harm is adequate.
What may not be adequate, Philadelphia, is the effort of your police in monitoring this activity on its own. Law officials across the country are embracing social media as a means to prevent the type of crimes you just experienced and those more severe. Massachusetts authorities caught a child-rape suspect after finding his location through Facebook. Police in Suffolk, Va., identified suspects in a street fight when videos of the incident were posted on YouTube. These type of efforts could have sniffed out a Facebook-planned melee before it even started. You and your police department have your own Facebook pages. Use them.
While you’re at it, reevaluate the situation. It’s the dead of winter and everyone’s heated. Let’s just call all this lawsuit talk an overreaction. As Kenney justifiably said, "I think that the citizens of this city have the right to shop, work, use public transportation and not be pummeled to the ground." Absolutely. But take that "hardline" you are now threatening with the 16 kids arrested and not with the websites they use.
(Justin Silverman is a CMLP Legal Intern and a third-year evening student at Suffolk University Law School. Justin founded the law school’s Suffolk Media Law student group and its SuffolkMediaLaw.com blog in 2009.)
Photo "Snowball" courtesy of Flickr user kamshots, licensed under CC BY 2.0.
Please Sue Me: Is “Please Rob Me” A New Test for Section 230?
Just over a year ago, the rumormonger—and some would say defamatory—website JuicyCampus.com shut down. At the time, I wrote "there’s one (and only one) downer to Juicy Campus’ shutdown . . . a lawsuit against Juicy Campus could have served as a very interesting test case for the limits of Section 230 immunity."
Ladies and gentlemen, a new contender has stepped into the ring! Say hello to PleaseRobMe.com!
The premise for this website is brilliant, even if potentially a litigation risk. PleaseRobMe.com ("PRM") aggregates Twitter posts indicating that the Tweeter in question is not at home. The folks at PRM aren’t doing anything sneaky or hacker-like—they’re just doing a simple Twitter search of anyone using foursquare.com—a site that lets Tweeters post their locations on a street map. The only thing that PRM is adding to the mix is framing content that snarkily suggests that these Tweeters aren’t home, and thus, perhaps, would be good targets for robbery.
Lest you get the wrong idea, PRM isn’t trying to encourage robbery (technically, we’re probably talking burglary). They claim that they’re underscoring the danger of blithely putting location information online for all the world to see:
The danger is publicly telling people where you are. This is
because it leaves one place you’re definitely not… home. So here we
are; on one end we’re leaving lights on when we’re going on a holiday,
and on the other we’re telling everybody on the internet we’re not
home. It gets even worse if you have "friends" who want to colonize
your house. That means they have to enter your address, to tell
everyone where they are. Your address.. on the internet.. Now you know
what to do when people reach for their phone as soon as they enter your
home. That’s right, slap them across the face.
The goal of this website is to raise some awareness on this issue
and have people think about how they use services like Foursquare,
Brightkite, Google Buzz etc. Because all this site is, is a dressed up Twitter search page. Everybody can get this information.
The fascinating thing for an Internet lawyer, though, is this: what if someone takes PRM up on their "offer" and robs one of these people’s houses? Of course, anyone trying to sue PRM would naturally face a big obstacle on any claim—the fact that they voluntarily posted their location, and thus their away-from-home status, where anyone could read it. But suppose some robber admits that he used PRM to hit vacant homes. Could PRM ever be liable, or would it be protected by Section 230 of the Communications Decency Act (“Section 230”)? (Hat tip to Rebecca Tushnet for the question and Mashable for the article on PRM.)
It’s a great question. Under the usual reading of Section 230, which protects websites from liability for defamatory and other tortious content created by their users, PRM ought to be safe. The website plays no role in authoring the content. Heck, it doesn’t even prompt others to post this information—the oblivious Tweeters do that themselves!
The fact that PRM plays no role in urging creation of its content probably insulates it from one of the tantalizing Section 230 questions that surrounded Juicy Campus. In Fair Housing Council v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008) (en banc), the Ninth Circuit made the typical Section 230 analysis somewhat fuzzier by suggesting that websites might—under undefined circumstances—lose Section 230 immunity by "encouraging," "soliciting," or "inducing" users to post illegal content. PRM looks good on this issue because, as noted, it isn’t encouraging anyone to produce the potentially damaging information. Quite the opposite, the website is trying to discourage it.
But recall that Roommates also laid out a new definition for when a website can be said to "develop" user content. The court said that "development" refers "not merely to augmenting
the content generally, but materially contributing to its alleged
unlawfulness." Roommates.com, slip op. at 3462 (emphasis added). Here, there’s an argument that PRM’s aggregation and framing of otherwise innocent content creates a foreseeable risk of unlawful third-party conduct that didn’t previously exist—that is, it materially contributes to that unlawful conduct.
I don’t pretend to know how such a case would come out. It would seem very difficult for a plaintiff to causally link PRM to any particular robbery. Heck, I’m not even sure what the underlying legal claim would be, though I suppose negligence comes to mind. (There might, however, be First Amendment issues with imposing liability under these circumstances.) Nevertheless, the potential for a great Section 230 case is back on the board. Hooray!
(Arthur Bright is a third-year law student at the Boston University
School of Law
and a former CMLP Legal Intern. Before attending law school, Arthur was
the online news editor at The Christian Science Monitor.)
Just Say No to the Sewer: Section 230 No Obstacle to Editing Comments
If you’re a fan of high-tech gadgets or Internet drama, you might
have noticed the brouhaha brewing at Engadget this week. Long known
for its comment sections ranking just above the YouTube level on the scale of
man’s inhumanity to man, the site prompted
a new wave of bile last week with its coverage of Apple’s iPad
announcement. After mocking
the anti-Apple commenters failed to stop them, Engadget disabled
its comments Monday.
This is all well and good, of course — it’s up to Engadget to
decide whether and how it will offer a commenting function. Some of
the coverage of Engadget’s decision, however, didn’t quite get this
right. Wired‘s Epicenter blog suggested that Engadget was forced to
disable commenting completely in order to avoid legal liability for what its commenters posted. “The one thing publications can’t do,”
he wrote, “is edit comments.” Fortunately for online publishers of all stripes, Epicenter
was mistaken. Section 230 of the Communications Decency Act (“Section 230”) shields website
operators who exercise normal editorial control over their users’
content, and this includes editing the content of the comments
themselves.
To understand why this is so, take a journey back to the heady days of
Netscape Navigator, Alta Vista, and little
animated GIFs of men digging holes. In 1995, a trial court in New
York found Prodigy (the OSP, not the emerging hardcore techno sensation) liable for the defamatory postings of a user of its
bulletin board system, in part because it had edited posts for foul
language. This struck some in Congress as a strange outcome—wait, so
we’re punishing Prodigy for editing out offensive posts, but they’d be
safe if they just left them there?—and in 1996, Congress passed Section
230 to overrule Stratton Oakmont v. Prodigy,
23 Media L. Rep. 1794 (N.Y. Sup. Ct. 1995), and protect “Good Samaritan”
editing.
Today, it’s settled law that website operators are protected even if
they change the content of users’ postings. The leading case
interpreting Section 230, Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997), held that “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” (emphasis
added). Since Zeran, numerous courts have reaffirmed the
principle. The Ninth Circuit, in Batzel v. Smith,
333 F.3d 1018 (9th Cir. 2003), held that “minor alterations” did not cost a
website operator his immunity when posting another’s email message.
In Donato v. Moldow, 865 A.2d 711 (N.J. Super. Ct. 2005), for instance, a New Jersey court found Section 230 immunity for a defendant who was alleged to have rewritten some users’ posts. Federal courts in Pennsylvania (Dimeo
v. Max, 433 F. Supp. 2d 523 (E.D. Pa. 2006)) and Louisiana
(Landry-Bell v. Various, Inc., 2005 WL 3640448 (W.D. La. 2005)) have agreed in dicta.
Of course, Section 230′s broad grant of immunity does have its limits. Most critically, it won’t help you if you change a comment in a way that creates defamatory meaning that wasn’t there before. Cf. Doe v. Friendfinder Network, Inc., 540 F. Supp.2d 288, 297 (D.N.H. 2008) (Section 230 provides "no protection to a service provider for publisher tortious content created by the provider itself"); Anthony v. Yahoo! Inc., 421 F. Supp.2d 1257, 1262-63 (N.D. Cal. 2006) (Yahoo! not immune under CDA for allegedly creating fake profiles on its own dating website).
So we can’t recommend editing a user’s comment that "Principal
Smith never sexually harassed his students" by deleting the "never."
In this situation, the meaning of the comment is changed, and it would
be reasonable to hold the editor, not the original poster, responsible
for its content. In general, though, Section 230 immunity is meant to
help, not inhibit, website operators in controlling third-party
content. And if that means fewer "OMG [disfavored purveyor of consumer
electronics] IS TEH SUX!!!!111one," that means we all win.
Dan Ray, a third-year student in Harvard Law School’s Cyberlaw Clinic, contributed to this post.
Photo a modified version of "Rat trying to escape to the sewer," courtesy of Flickr user ncorreia,
licensed under a CC Attribution-Noncommercial-Share Alike 2.0 Generic license.
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