Nemet Chevrolet v. Consumeraffairs.com: 4th Circuit Reaffirms Its Position that the Communications Decency Act Provides Immunity from the Burden of Defending a Lawsuit
Digital media law update: The dominant understanding among U.S. Circuit Courts is that the Communications Decency Act is an immunity statute that protects an ISP from any kind of civil suit for publishing information from a third party. Among the Circuits that have adopted this position are the 1st, 3rd, 4th, and 10th. There have been some partial dissenters from this view, including the 7th and the 9th Circuits. See Chicago Lawyers' Committee for Civil Rights under the Law, Inc., 519 F.3d 666 (7th Cir 2008); Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008).
In a recent decision, the 4th Circuit has reaffirmed its position that the CDA provides ISPs with immunity from suit for information created and developed by third parties. See Nemet Chevrolet v. Consumeraffairs.com, 4th Cir., No. 08-2097 (Dec., 29. 2009).
According to the Court,
"This 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 . . . Section 230 immunity, like other forms of immunity, is generally accorded effect at the first logical point in the litigation process. As we have 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'. . . We thus aim 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." (emphasis added).
In the Nemet case, this meant that the Court resolved the question of §230 immunity in a 12(b)(6) motion to dismiss, which was filed at the outset of the case. The Court ultimately dismissed the claim, concluding that the factual allegations in the complaint could not plausibly support an inference that Consumeraffairs.com could be considered a creator of the defamatory posts in question.
Even Circuits that have dissented from a strict immunity interpretation of the CDA have also been willing to entertain such early motions to dismiss defamation suits. See Chicago Lawyers, 521 F.3d at 672 (affirming judgment on the pleadings based on a CDA immunity defense); Barnes v. Yahoo, 570 F.3d 1096 (9th Cir. 2009) (affirming motion to dismiss negligence claim based on CDA immunity defense). This suggests that the debate over whether the CDA is an "immunity" statute may be a bit of a tempest in a teapot without much practical effect on actual court decisions.
In any event, regardless the Circuit in which an Internet defamation claim is brought, plaintiffs with a colorable CDA defense are still advised to attempt to seek dismissal at the earliest stage in the litigation possible -- such as via an anti-SLAPP motion or motion to dismiss.
David Johnson's practice focuses on complex litigation and science, technology and health law. David can be contacted at (415) 399-6032 or DJohnson@ebglaw.com.
