QUESTION: Can you obtain a judgment or an injunction against an interactive computer service obtaining damages or enjoining it to remove defamatory statements from its website?
SHORT ANSWER: NO not if the website is merely an interactive computer service providing a platform for third parties to post information and statements.
Congress enacted the Communications Decency Act of 1996 (“CDA”). The CDA bars “state-law plaintiffs from holding interactive computer service providers legally responsible for information created and developed by third parties.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 254 (4th Cir. 2009). “To further the policies underlying the CDA, courts have generally accorded § 230 immunity a broad scope.” Id. An “interactive computer service” is defined in the CDA as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.” 47 U.S.C. § 230(f)(2)
Recognizing that the Internet provided a valuable and increasingly utilized source of information for citizens, Congress carved out a sphere of immunity from state lawsuits for providers of interactive computer services to preserve the “vibrant and competitive free market” of ideas on the Internet. 47 U.S.C. § 230(b)(2); see also Zeran, 129 F.3d at 330. The CDA bars the institution of a “cause of action” or imposition of “liability” under “any State or local law that is inconsistent” with the terms of § 230. 47 U.S.C. § 230(e)(3). As relevant here, § 230 prohibits a “provider or user of an interactive computer service” from being held responsible “as the publisher or speaker of any information provided by another information content provider.” Id. § 230(c)(1). . An information content provider does not have immunity under the CDA. The CDA defines an “information content provider” as “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.” Id. § 230(f)(3). Assuming a person meets the statutory definition of an “interactive computer service provider,” the scope of § 230 immunity turns on whether that person’s actions also make it an “information content provider.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 254 (4th Cir. Va. 2009)
Dismissal of a case on this basis is appropriate unless the complaint pleads nonconclusory facts that plausibly indicate that “any alleged drafting or revision by [the defendant] was something more than a website operator performs as part of its traditional editorial function,” thereby rendering it an information content provider.
A website that does more than merely provide a platform for information posted by third persons may be an “information content provider”, factors that a court may consider include whether or not the website screens third party postings for the “best” content, has some sort of review and/or verification process, adds its own taglines to those postings, and adds its own comments or content to the postings. If it does more than using filters to remove objectionable words it may lose its immunity under the CDA because is no longer merely acting as an “interactive computer services” provider but is acting as a “information content provider” by becoming “responsible, in whole or in part, for the creation or development of information…” Once the website loses immunity, if a posting is found to contain false statements of fact, damaging to the reputation of a person or entity, the website’s owner may be held liable for defamation.
Taken together, these provisions bar state-law plaintiffs from holding interactive computer service providers legally responsible for information created and developed by third parties. See Fair Hous. Council v. Roommates.com, LLC, 521 F.3d 1157, 1162 (9th Cir. 2008) (en banc). Congress thus established a general rule that providers of interactive computer services are liable only for speech that is properly attributable to them. See Universal Commc’n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 419 (1st Cir. 2007). State-law plaintiffs may hold liable the person who creates or develops unlawful content, but not the interactive computer service provider who merely enables that content to be posted online. See Doe v. MySpace, Inc., 528 F.3d 413, 41 (5th Cir. 2008)9; Chicago Lawyers’ Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 672 (7th Cir. 2008); Zeran, 129 F.3d at 330-31.
To further the policies underlying the CDA, courts have generally accorded § 230 immunity a broad scope. See Lycos, 478 F.3d at 418; Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1123 (9th Cir. 2003); Zeran, 129 F.3d at 331. The Fourth Circuit has recognized the “obvious chilling effect” the “specter of tort liability” would otherwise pose to interactive computer service providers given the “prolific” nature of speech on the Internet. Zeran, 129 F.3d at 331. Section 230 immunity, like other forms of immunity, is generally accorded effect at the first logical point in the litigation process. As the court has often explained in the qualified immunity context, “immunity is an immunity from suit rather than a mere defense to liability” and “it is effectively lost if a case is erroneously permitted to go to trial.” Brown v. Gilmore, 278 F.3d 362, 366 n.2 (4th Cir. 2002) (quotations omitted) (emphasis in original). The court aims to resolve the question of § 230 immunity at the earliest possible stage of the case because that immunity protects websites not only from “ultimate liability,” but also from “having to fight costly and protracted legal battles.” Room-mates.com, 521 F.3d at 1175.
Although statute clearly limits immunity to suits seeking to hold an interactive computer service “liable” most courts have dismissed the entire action even with a complaint seeking injunctive relief. Directory Assistants v. SuperMedia, LLC, 884 F. Supp. 2d 446, 453 (E.D. Va. 2012)(Nevertheless, under the CDA the Court’s hands are tied. Plaintiff may, under § 230, seek relief against the originators of the defamatory Internet publications, but Plaintiff has no remedy against Defendants here.[notwithstanding the requested permanent injunction]) Noah v. AOL Time Warner Inc., 261 F. Supp. 2d 532, 540 (E.D. Va. 2003)(“Indeed, given that the purpose of § 230 is to shield service providers from legal responsibility for the statements of third parties, § 230 should not be read to permit claims that request only injunctive relief. After all, in some circumstances injunctive relief will be at least as burdensome to the service provider as damages, and is typically more intrusive.”) Smith v. Intercosmos Media Grp., Inc., 2002 U.S. Dist. LEXIS 24251, 2002 WL 31844907, at *5 (E.D. La. Dec. 17, 2002) (concluding that section 230 provides immunity from claims for injunctive relief) Kathleen R. v. City of Livermore, 87 Cal.App.4th 684, 104 Cal.Rptr.2d 772 (Cal. Ct. App. 2001) (section 230 barred all the plaintiff’s state law claims, including those for injunctive relief, arising out of a city library’s failure to restrict her minor son’s access to sexually explicit Internet materials) Ben Ezra, Weinstein, & Co. v. Am.Online Inc., 206 F.3d 980, 983-86 (10th Cir. 2000) (holding that section 230 immunized a computer service provider from a suit for damages and injunctive relief)
§ 230 of the Communications Decency Act of 1996 (“CDA”)
§ 230. Protection for private blocking and screening of offensive material
(a) Findings. The Congress finds the following:
(1) The rapidly developing array of Internet and other interactive computer services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources to our citizens.
(2) These services offer users a great degree of control over the information that they receive, as well as the potential for even greater control in the future as technology develops.
(3) 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.
(4) The Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation.
(5) Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services.
(b) Policy. It is the policy of the United States–
(1) to promote the continued development of the Internet and other interactive computer services and other interactive media;
(2) to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation;
(3) to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services;
(4) to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children’s access to objectionable or inappropriate online material; and
(5) to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.
(c) Protection for “Good Samaritan” blocking and screening of offensive material.
(1) Treatment of publisher or speaker. No 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.
(2) Civil liability. 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 or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1) [subparagraph (A)].
(d) Obligations of interactive computer service. A provider of interactive computer service shall, at the time of entering an agreement with a customer for the provision of interactive computer service and in a manner deemed appropriate by the provider, notify such customer that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist the customer in limiting access to material that is harmful to minors. Such notice shall identify, or provide the customer with access to information identifying, current providers of such protections.
(e) Effect on other laws.
(1) No effect on criminal law. Nothing in this section shall be construed to impair the enforcement of section 223 or 231 of this Act [47 USCS § 223 or 231], chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of title 18, United States Code [18 USCS §§ 1460 et seq. or §§ 2251 et seq.], or any other Federal criminal statute.
(2) No effect on intellectual property law. Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.
(3) State law. Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.
(4) No effect on communications privacy law. Nothing in this section shall be construed to limit the application of the Electronic Communications Privacy Act of 1986 or any of the amendments made by such Act, or any similar State law.
(f) Definitions. As used in this section:
(1) Internet. The term “Internet” means the international computer network of both Federal and non-Federal interoperable packet switched data networks.
(2) Interactive computer service. The term “interactive computer service” means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.
(3) Information content provider. The term “information content provider” means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.
(4) Access software provider. The term “access software provider” means a provider of software (including client or server software), or enabling tools that do any one or more of the following:
(A) filter, screen, allow, or disallow content;
(B) pick, choose, analyze, or digest content; or
(C) transmit, receive, display, forward, cache, search, subset, organize, reorganize, or translate content.
47 USCS § 230
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