Digital Media Lawyer Blog

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 D. Johnson is a business lawyer whose practice focuses on litigation and other issues relating to digital media and consumer electronics companies. David can be contacted at (310) 785-5371 or DJohnson@jmbm.com.

Communications Decency Act update: A New Jersey Superior Court judge recently evoked controversy among First Amendment and media law experts by ordering GoDaddy, Domains by Proxy, ASP.net and Verisign to "shut down and disable" three websites which published allegedly defamatory posts. See Apex Technology Group, Inc. v. Doe, N.J. Superior Ct., Law Division, Middlesex County, No. MID-L-7878-09, Order (Dec. 23, 2009). The preliminary injunction order was issued based on the plaintiffs' claim that it had been defamed by postings that appeared on the sites www.endh1b.com, www.itgrunt.com, and www.guestworkerfraud.com. The order also directed the three websites to take down the posts, as well.

No one on the defense side was represented at the preliminary injunction hearing. The court order also suggests that no one at the domain name registries/registrar/web hosting companies received notice of or were represented at the hearing. As a result, the order appears to be rife with substantive and procedural defects. (Not an unusual result when an order is issued without the benefit of defense counsel briefing).

But what about the substantive issue at stake in this order: What rights does a person who is the object of a defamatory Internet post have to get the post removed? Can the aggrieved seek an injunction against the author of the post? If she can't locate the author, who may be anonymous, does she have the right to get an injunction against the host of the website to get it removed?

In fact, the law is somewhat unsettled in this area, and the relief available may depend on the jurisdiction in which the plaintiff sues.

• The First Amendment to the U.S. Constitution bars injunctive relief, but only until a jury trial on whether the statement in question is defamatory has been conducted.

The First Amendment to the U.S. Constitution protects freedom of speech, but this protection is not unlimited. A series of U.S. Supreme Court decisions have held that a media outlet may be enjoined from further publication of a libelous statement. See Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376, 390 (1973). However, such an injunction may only be issued after a full jury determination that the statement is in fact defamatory. See Kramer v. Thompson, 947 F.2d 666, 676 n. 25 (3d. Cir. 1991) (summarizing cases).

Continue reading "Apex Technology v. Doe: May a Court Enter an Injunction Requiring an ISP to Take Down an Allegedly Defamatory Third Party Post?" »

Communications Decency Act update: Plaintiffs seeking to get defamatory posts removed from an online website have often been stymied by the Communications Decency Act which protects the web host from suit for publishing third party posts. However, for some time, plaintiffs have been getting around this by seeking an injunction against the original author of the post and then asking the court to enforce this injunction against the website operator under Federal Rule of Civil Procedure 65. For more on this strategy, see Eric Goldman's blog post of November 10, 2009.

However in a December 21, 2009 ruling a federal judge in the Eastern District of Illinois ruled that this strategy violates federal law. See Blockowicz v. Williams, N.D. Ill., No. 1:09-cv-03955, Memorandum Opinion and Order.

The plaintiffs in this case brought a defamation against the defendants, Joseph Williams and Michelle Ramey, for statements published on various websites, including the Ripoff Report (www.ripoffreport.com). The defendants apparently never answered the complaint and the court entered a default judgment against them, requiring them to remove their defamatory postings from the websites. However, the plaintiffs were never able to contact the defendants, and the posts remained on-line.

The plaintiffs then filed a Motion for Third Party Enforcement of Injunction to force the operators of ripoffreport.com to remove the postings from their website. Ripoff Report refused to do so, claiming that the injunction order did not apply to it.

The Court agreed. Under Federal Rule of Civil Procedure 65, an injunction binds "not only the parties to the injunction but also nonparties who act with the named party." SEC v. Homa, 514 F.3d 661, 674 (7th Cir. 2008). Other case law indicates that this means that an injunction may bind third parties who are under the control of or who are represented by the defendant. However, it does not bind third parties who act independently and who rights have not been adjudicated.

In this case, the Court found that www.ripoffreport.com acted independently of the defendants. While ripoffreport.com published the defendants' defamatory statements, submission of defamatory statements to its website was against www.ripoffreport.com's Terms of Service. There was no evidence in the record that ripoffreport.com "intends to protect defamers and aid them in circumventing court orders." There was also no evidence that www.ripofferport.com had any contact with the defendants since the injunction was entered. In short, the Court found that www.ripoffreport.com's connection to the defendants was tenuous and insufficient to force its compliance with the injunction.

In conclusion, the Court stated that it was sympathetic to the plaintiffs' plight: "they find themselves the subject of defamatory attacks on the internet yet seemingly have no recourse to have those statements removed from the public view." But given the plaintiffs' strategy of attempting to enforce a third party injunction against an unrelated party, it had no choice.

Of course, there are other options for the plaintiffs: They could refocus their efforts on locating the original defendants, and getting them to act. In addition, the Ripoff Report might be willing to voluntarily take down the posts in question, if provided the right information.

David D. Johnson is a business lawyer whose practice focuses on litigation and other issues relating to digital media and consumer electronics companies. David can be contacted at (310) 785-5371 or DJohnson@jmbm.com.

Digital media law update: At last, one of several suits by law enforcement authorities against Craigslist, over its alleged publication of ads promoting prostitution services, has reached a court decision. The result, which appears to be driven at least in part by Craiglist's recent actions to clean up its site, is that Craigslist has been found not liable for aiding and abetting the practice of prostitution in Chicago.

The case, Dart v. Craigslist, Inc., N. D. Ill., No. 1:09-cv-01385, was brought by the Sheriff of Cook County who alleged that Craiglist was facilitating prostitution and creating a public nuisance. According to the complaint, Craigslist had become "the single largest source for prostitution, including child exploitation, in the country." The Sheriff argued that Craigslist facilitated prostitution because it created classified ad categories entitled "erotic" (now "adult") services, subcategories referring to different types of sexual services (such as "w4m"), published thinly-veiled ads offering prostitution services, and allowed these ads to include nude of semi-nude photos of women. For example, one ad read "HELLO GENTLEMEN NOW YOU MEET JADE AND TIPHANY WE DO TWO GIRL SHOWS AND INDIVISUAL CALLS!! WE GUARANTEE THE TIME OF YOUR LIFE!!! (spelling errors in the original).

The Sheriff stated that he and other law enforcement authorities regularly conduct prostitution stings using advertisements published in Craigslist. The Sheriff claimed that he had arrested over 200 people through Craigslist since 2007.

Craigslist countered that while it created the categories the Sheriff cited, its users created the ad content. Moreover, Craigslist claimed that it took steps to discourage ads promoting prostitution by including a provision in its Terms Of Use prohibiting users from posting illegal content, and by placing a "warning and disclaimer" in its erotic/adult services section stating that users entering the section agreed to "flag" prohibited content so that it could be removed. Craiglist also imposed a $10/ad charge on persons posting ads in its adult services section, a fee that had to be paid with a valid credit card. Craigslist said that this provision was designed to make it easier for law enforcement officers to locate the person who placed an ad, again discouraging illegal content.

As the legal basis for his claims against Craigslist, the Sheriff cited Chicago Municipal Code §8-8-020, which provides that "no person shall knowingly direct, take, transport . . . any person for immoral purposes or assist any person by any means to seek or find a prostitute." He claimed that Craigslist's ads performed this very function -- helping people find prostitutes.
District Court Judge John Grady rejected Sheriff claims on Communications Decency Act (CDA) grounds. 47 U.S.C. § 230. The CDA provides that "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." The CDA has been consistently held to provide immunity from prosecution from tort, civil rights and state criminal laws for operators of interactive websites.

Continue reading "Dart v. Craigslist: District Court Ruling Clarifies Extent to which a Website Can Permit Publication of Illegal Content but Retain Communications Decency Act (CDA) Immunity" »

Internet law: The Communications Decency Act (CDA) sets the standard for determining a website operator's liability for publishing information on the Internet. The CDA provides that a website operator may not be treated as the publisher of information "provided by another information content provider." In other words, if a third party provides information for posting on a website, the webhost will not be held liable for things such as federal civil rights violations, state law crimes, or common-law torts like defamation or invasion of privacy, for publishing that information on its site.

When conducting seminars on digital media law, I am often asked when information will be considered to have been "provided by another information content provider." For example, does CDA immunity apply if a web host finds an article she likes and republishes on her site? Or, if someone sends the web host an email, does CDA immunity apply if she publishes that email on her site?

The answers to these questions were provided by the 9th Circuit in a case I litigated several years ago, Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003).

Ellen Batzel was a lawyer who resided in North Carolina. She employed a handyman named Robert Smith to perform work at her home. Unfortunately, she had a falling-out with Smith, and he apparently decided to take revenge. So he sent the following mail to the Museum Security Network, a Dutch website that publishes information about stolen art:

"From: Bob Smith
To: securma@museum-security.org
Subject: Stolen Art

Hi there,

I am a building contractor in Asheville, North Carolina, USA. A month ago, I did a remodeling job for a woman, Ellen L. Batzel who bragged to me about being the grand daughter [sic] of "one of Adolph Hitler's right-hand men." At the time, I was concentrating on performing my tasks, but upon reflection, I believe she said she was the descendant of Heinrich Himmler.

Ellen Batzel has hundreds of older European paintings on her walls, all with heavy carved wooden frames. She told me she inherited them. I believe these paintings were looted during WWII and are the rightful legacy of the Jewish people. Her address is [omitted].

I also believe that the descendants of criminals should not be persecuted for the crimes of the [sic] fathers, nor should they benefit. I do not know who to contact about this, so I start with your organization. Please contact me via email [...] if you would like to discuss this matter.

Bob."

Continue reading "Batzel v. Smith: No Communications Decency Act Immunity for Publishing Private Communications on Your Website" »

Communications Decency Act Update: As readers of this blog are aware, Craigslist is engaged in a pitched battle against the State attorneys general regarding its former erotic services classified ads category. Earlier this year, in response to threats of prosecution of aiding and abetting prostitution, Craigslist changed this category title, at least for its U.S. web pages, from "Erotic" services to "Adult" services. It also began screening postings for nudity and illegal content, and began charging persons placing ads under this category.

Despite these changes, in March 2009, Craigslist was sued by the Thomas Dart, Sheriff of Cook County, Illinois, for public nuisance and violation of local prostitution statutes. Complaint, Dart v. Craigslist, Inc., U.S.D.C., Northern District of Illinois, Case No. 1:09-cv-01385. The Complaint specifically targets Craigslist for three activities: (i) creating an "Erotic" services category, under which third-party posts for prostitution services were published, (ii) creating twenty-one sexual predilection subcategories within the Erotic services category, such as "w4m, m4m, m4w, w4w", etc., and (iii) creating a word search function that permits users to "search for a prostitute based on desired search terms relating to location, type of service, physical dimensions, or ethnicity." The suit seeks a declaration that Craigslist's conduct is a public nuisance, to award the Sheriff his costs in abating this nuisance, and to enjoin Craigslist from engaging such conduct in the future.

Craigslist has filed a motion for judgment on the pleadings -- essentially a motion to dismiss. At present, briefing is completed and waiting a decision by Northern District of Illinois Judge Grady.

The pleadings filed by the parties give very different perspectives on the law that should be applied to this case. As expected, much of Craigslist's motion focuses on the Communications Decency Act (CDA), arguing that the claims against it amount to an attempt to hold it liable for publishing material from third-party information providers -- an activity that is immune under the CDA. Motion at 15-16. Craigslist also argues that the attempt to enjoin its conduct amounted to an unconstitutional prior restraint on speech.

The Sheriff's responsive pleadings start with a bang, by claiming that "Craigslist is the largest source of prostitution in the country." Response to Motion for Judgment on the Pleadings, p. 3. The Sheriff's brief then moves onto several flawed arguments: First, it claims that Craigslist's CDA defense "is built on the assumption that the underlying content, advertisements for prostitution and escort services, is constitutionally protected." Response at 3. This argument is simply off-base. The CDA applies to a website operator, regardless of whether the third-party content posted on its site is entitled to First Amendment protection. Indeed, in several recent cases, the CDA has been held to provide immunity, even though the material published was fraudulent and used to violate state criminal laws -- all constitutionally unprotected activities. See Doe v. MySpace, Inc. (5th Cir. 2008) 528 F.3d 413; Doe v. MySpace, consol., Cal. Ct. App., No. B205643 (Cal.App. June 30, 2009).

Continue reading "Dart v. Craigslist: Competing Views of Craigslist's Liability for Creating its "Adult" Services Section" »

There are many hurdles to recovering damages when a third party makes a defamatory post about you or your business on an interactive website. The Communications Decency Act generally shields the site that published the third-party post itself, which means that you will have to sue the original author. If the poster was anonymous, you will have discover his identity before your suit can get off the ground. While some web hosts will disclose the identity of an anonymous poster in response to a simple request or a subpoena, others will not do so without a court order.

A court order is often not easy to get.

Anonymous speech has played a critical role in furthering the American democracy. Thomas Paine was able to publish his Common Sense which urged Americans to revolution, without fear of personal reprisal, because he was able to publish it anonymously. The Federalist Papers were also published anonymously. Given this heritage, the U.S. Supreme Court has repeatedly found that the right to speak anonymously is protected by the First Amendment. See, e.g., McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 341-42 (1995).

The amount of First Amendment protection offered to anonymous speech, like all other protected speech, varies with the class of speech involved. For example, where disclosure of a speaker's identity would chill his ability to exercise his political rights, the U.S. Supreme Court has absolutely refused to permit disclosure of his identity. NAACP v. Alabama, 357 U.S. 449, 462; 78 S.Ct. 1163, 1171, 2 L.Ed.2d 1488 (1958); Talley v. California, 362 U.S. 60, 80 S.Ct. 536, 4 L.Ed.2d 559 (1960). On the other hand, the Court has found that defamatory and libelous speech gets no Constitutional protection. Chaplinsky v. New Hampshire, 315 U.S. 568, 571 (1942).

While courts permit disclosure of an alleged defamer's identity, a court faced with a complaint that accuses an anonymous speaker of engaging in defamation faces a "chicken and the egg" dilemma. If trial proves that the speaker is liable for defamation, then his anonymity was not entitled to First Amendment protection and should be disclosed. If trial proves that the speaker is not liable for defamation, then his anonymity was entitled to First Amendment and should not be disclosed. However, disclosure of a speaker's identity is generally required for a court to determine whether his words were defamatory. In other words, you have to disclose his identity to determine whether his identity should be disclosed.

For example, proving a cause of action for defamation often requires showing that the speaker acted with malice. To show malice, a plaintiff must have evidence that the speaker made his defamatory statements intending or knowing that they would cause harm to the plaintiff, or that he made his statements without a reasonable basis for believing that they were true. Such evidence of a defendant's mental state can generally only be provided to a court after the speaker has been identified and discovery of his purposes and of the facts available to him at the time he spoke has been obtained.

Continue reading "Solers, Inc. v. Doe & In re Liskula Cohen: Hurdles to Uncovering the Identity of an Anonymous Internet Poster Vary Greatly throughout the U.S." »

Many blog sites on the Internet are devoted to complaints or criticism of the practices of businesses and their executives. For example, we recently blogged about a site that critiques the practices of beauty company Mary Kay, Inc. -- www.pinklighthouse.com. Another site focuses on critiques of Starbucks' operations --starbucksgossip.typepad.com. The authors of such blogs or websites frequently worry that their posts could subject them to ruinous liability for defamation, trademark infringement (for use of the company name), or copyright infringement (for reprinting company materials).

However, a recent decision by a District Court in the Northern District of California illustrates the protections the law affords attack blogs from such claims. In 2006, Robert Delsman, Jr., a former General Electric employee, submitted a claim for disability benefits to the firm that handled such claims for GE -- Sedgwick Claims Management, Inc. Sedgwick is managed by David North (CEO) and Paul Posey (COO). Delsman grew dissatisfied with Sedgwick's handling of his case and began to express his views about Sedgwick, North and Posey in a blog and a postcard mailing campaign called "Operation Going Postcard."

The blog, which is currently hosted at http://www.gesupplydiscrimination.com/, accused Sedgwick of wrongfully denying benefits to claimants, violating various laws, and accused Sedgwick and its "minions" (which it termed "Sedgthugs") of having committed "Sedgcrimes."
Delsman also took two copyrighted photos of North and Poser and superimposed them on "WANTED" postcards, some of which he "morphed" to look like pictures of Adolph Hitler and Heinrich Himmler. The postcards contained messages next to the photos such as this: "WANTED FOR HUMAN RIGHTS VIOLATIONS. . . Have you been threatened by this man or his minions? The time for change is at hand!" On the reverse side, they read: "Have you been terrorized, threatened or lied to by Sedgwick Claims Management Services? The time to act is now! Report these despicable activities to the US Department of Justice and the Attorney General in your state. Sedgwick CMS can be stopped peacefully and purposefully if enough people act now! Get informed!"

That's strong stuff!

Sedgwick filed suit against Delsman seeking to stop his damaging campaign. It claims included copyright infringement, for his use of the photos, and the usual panoply of defamation-related claims, including libel and interference with prospective business advantage. See Sedgwick Claims Management Services, Inc. v. Delsman, U.S.D.C. Northern District of California, Case No. C 09-1468 SBA, Order Granting Defendant's Motion to Dismiss (July 16, 2009).

There is nothing wrong with the types of claims Sedgwick brought. I have successfully brought them myself on behalf of defamed plaintiffs. However, the circumstances have to be right. The reality is that the First Amendment protects a lot of damaging speech.

Continue reading "Attack Blog's Salvos against Corporation and Blogger's Use of Copyrighted Photos in Parodies of Management Deemed Non-Actionable by California District Court" »

On July 30, 2009, Judge Fogel, who should be called the "Internet Judge" of the Northern District of California, closed the loop on the Goddard v. Google class action by ruling that Google's Keyword Tool constitutes a "neutral tool" for Communications Decency Act (Fn1) purposes. (Fn2). Google's Keyword Tool, which is offered under its AdWords program, provides potential advertisers on Google with suggestions on alternate keywords they can purchase to increase traffic to their site.

The complaint alleged that the class members were injured when they clicked on ads for mobile subscription services that were carried on Google. The mobile subscription services sell ringtones, sports score reports, weather alerts, stock tips, direct payment services, and interactive radio over the Internet for use on cell phones. According to the complaint, the services transmit their products directly to consumers' mobile devices and apparently are able to bill the consumer merely by providing the consumer's cellular telephone number to a billing aggregator. The aggregator in turn instructs the relevant cellular carrier to add the charges to the consumer's cellular telephone bill. The complaint alleged that the unverifiable nature of this business model resulted in large numbers of unauthorized and fraudulent charges being racked up on consumer's phone bills. (Fn3)

The suit alleged that Google was liable for this fraud on negligence, aiding and abetting, money laundering and other grounds. Google defended each of these claims based on the Communications Decency Act, claiming that all the plaintiffs' theory of liability against it were based on its publication of material provided by a third party.

During the original hearing on Google's motion to dismiss (Goddard I), Judge Fogel expressed skepticism over the viability of the case in light of the broad immunity provided by the Communications Decency Act. However, as part of the basis for its claims, the complaint had alleged that Google "assists its customers in drafting AdWords and selecting keywords through both live support from its AdWords Specialists and its advertising campaign optimization services." Judge Fogel noted that an internet service provider can be found to be co-information content provider if it has collaborates in creating illegal content.

For example, in Fair Housing Council v. Roommates.com, LLC, 521 F.3d 1157, 1162 (9th Cir. 2008), the 9th Circuit found that an internet roommate matching service was responsible for content created on its site by third parties, where it had provided prompts that assisted users in developing their roommate profiles. These prompts effectively required users to enter information that violated state and federal fair housing rules. The 9th Circuit held that "by providing a limited set of pre-populated answers" that violated state and federal law, Roommates.com became a developer of the illegal content in the profiles posted on its site.

Continue reading "Goddard v. Google - Part II: Judge Fogel Rules that Google's Keyword Tool Is a Neutral Tool For Communications Decency Act Purposes" »

A June 30, 2009 decision by the California Court of Appeal addressed the issue of whether the provision of neutral on-screen prompts for information, such as drop-down menus, by an interactive website makes the site a co-developer of the information included in a profile. Under the Communications Decency Act, a website operator can gain immunity from publishing offensive or harmful material provided by another "information content provider." Over the past decade, the courts have broadly interpreted the Act to provide immunity to interactive website operators who permit users to create false profiles that are then used to injure other users. See Carafano v. Mertrosplash.com Inc., 339 F.3d 1119 (9th Cir. 2003).

However, the courts have also long recognized that this immunity can be breached if the website operator itself is determined to also be a developer of offensive material. For example, in the recent case Fair Housing Council, San Fernando v. Roommates.com, 521 F.3d 1157 (9th Cir. 1157), the Ninth Circuit ruled that a website operator was a developer of profile information entered by third parties because it used on-screen prompts which required users to input information that violated state and federal fair housing laws.

In the Doe v. MySpace cases, several teenage girls created MySpace profiles through which they met adult men who later sexually assaulted them. Doe v. MySpace,--Cal.Rptr.3d--, 2009 WL 1862779 (2009). The girls sued MySpace on negligence and other grounds, arguing that MySpace had failed to implement readily-available precautions, such as age-verification software, that could have prevented these attacks. MySpace defended, claiming that the Communications Decency Act provided it immunity for publishing material from the girls or their attackers because such material came from "another information content provider".

The plaintiffs argued that as in Roommates, MySpace should be considered a provider of the information on the profiles because it collaborated with the Does and their attackers to create and flesh out their MySpace profiles and allowed the attackers to channel information in profiles, and search and browse profiles for particular characteristics. The Court of Appeal rejected this argument.

The Court of Appeal found that the Ninth Circuit had deemed Roommates.com to be an information content provider because it "created . . . discriminatory questions, presented a limited choice of answers and designed its search and email systems to limit listings based on sex, sexual orientation, and presence of children." In other words, Roommates.com created and forced used to participate in a discriminatory process.

Continue reading "The Doe v. MySpace Cases: Neutral On-screen Prompts Don't Make an Interactive Website a Developer of User Information for Communications Decency Act Purposes" »

On June 29, 2009, the 10th Circuit handed down another in a recent series of rulings that have found no Communications Decency Act immunity where a website operator encourages a third party to provide illegal or offensive information that is then posted on its site. The case was Federal Trade Commission v. Accusearch, Inc., -- F.3d.--, 2009 WL 1846344 (2009), which concerned Accusearch's website www.Abika.com, a site which bills itself as a source of personal information, including criminal, tax and mortgage records, IP and email addresses, background checks and personality profiles.

According to the Court, from February 2003 to January 2006, Abika.com also advertised access to personal telephone records. The website stated that its customers could acquire "details of incoming or outgoing phone calls from any phone number, prepaid calling care or Internet Phone." The Court stated that "acquisition of this information would almost inevitably require someone to violate the Telecommunications Act or to circumvent it by fraud or theft," because the act generally forbids telephone companies from disclosing such records without customer consent.

Accusearch argued if such criminal activity had occurred, it was immune under the Communications Decency Act (47 U.S.C. § 230), because the phone records were supplied by third-party researchers. A user of Abika.com would place a search order and pay an "administrative search fee." Abika.com would forward the request to a researcher. After completing the search, the researcher would send the results to Accusearch and bill Accusearch directly. Accusearch would then email the result to the customer and post it on the customer's Abika.com account. The customer had no contact with the researcher throughout the process. In any event, all the allegedly illegal information came from third party providers.

In response, the FTC argued that Abika.com was not an interactive computer service, because it did not allow for interaction between users and third parties. However, the 10th Circuit skirted this argument, noting that other cases had found that websites necessarily provide interactive computer services. (This might be fertile ground for future cases -- especially if other forms of communication are combined with the use of a website in providing the content at issue).

Instead, the 10th Circuit focused on the question of whether Accusearch was itself a provider of the illegal phone records or whether the material could be deemed to have come from a third party provider. The Court noted that the CDA defines the term "information content provider" as "any person or entity the is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service." As such, there can be several information content providers for a single internet post.

Continue reading "FTC v. Accusearch, Inc: No Communications Decency Act Immunity Where Website Operator Qualified As Developer of Material Posted on Website" »

The Ninth Circuit's recent ruling in Zango, Inc. v. Kaspersky Lab, Inc. is one of the few that directly deal with the provisions in the Communications Decency Act that provide immunity from suit for the screening activities of internet service providers. The relevant section, 47 U.S.C. § 230(c)(2), provides as follows:

"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 make available to information content providers or others the technical means to restrict access to material described in paragraph [A]."

The plaintiff in the case, Zango, Inc., is a now-defunct Internet entertainment company that provided access to a catalog of online videos, games and music to users who agreed to view advertisements while surfing the internet. The defendant, Kaspersky Lab, Inc., is still live and kicking, and is a Moscow-based firm which bills itself as "a leading anti-virus software and Internet Security software solution for your home computer or business."

According to the court, Kaspersky's software classified Zango as "adware," a type of malware. Once installed on a user's computer, adware monitors a user's browsing habits and causes "pop-up" ads to appear throughout the browsing session. Adware can open up links with websites that themselves contain malware that can infect a personal computer. Kaspersky's software disabled key features of Zango's software and through a series of routines, ultimately blocked the use of Zango.

Zango sued Kaspersky, seeking an injunction against its blocking activities. In defense, Kaspersky invoked the protection of §230(c)(2)(B), cited above.

The Ninth Circuit concluded that Kaspersky was "plainly immunized" by the Communications Decency Act. This conclusion was based on its analysis of §230(c)(2)(B) and two related definition sections: § 230(f)(2) which defines the term "interactive computer service" to mean any "information service, system, or access software provider that provides or enables computer access by multiple users to a computer server . . . "; and § 230(f)(4) which defines the term "access software provider" to include providers of software that filter content.

Combining these three sections, the Court concluded that a provider of filtering software or services may not be held liable for any action taken to make its filtering software available "so long as the provider enables access by multiple users to a computer service." The Court then noted that Kaspersky "provides or enables computer access by multiple users to a "computer server" by providing its customers with online access to its update servers."

Continue reading "Zango, Inc. v. Kaspersky Lab, Inc.: The Ninth Circuit Gets to the Right Destination But By the Wrong Route" »

Two recent decisions have eliminated questions about a defendant's ability to use the Communications Decency Act (CDA) to obtain a quick dismissal of a lawsuit. Federal rules permit a defendant, under certain circumstances, to get an immediate dismissal of a lawsuit, without every being required to file an "answer" to the complaint, make any disclosures, or engage in any discovery. Winning such a "motion to dismiss" cuts off a lawsuit at its knees, immediately eliminating the costs and risks associated with the suit.

One of the bases on which a motion to dismiss can be brought is "failure to state a claim on which relief can be granted" -- a Federal Rules of Procedure "Rule 12(b)(6)" motion. In general, a Rule 12(b)(6) motion can only be used if the complaint is so defective that the plaintiff's allegations against the defendant, even if true, would not qualify for any form of relief from the court. For example, a complaint for common-law fraud would be dismissed on a Rule 12(b)(6) motion if it failed to allege that the defendant made a false statement that the plaintiff actually relied on -- because to get damages for a false statement made by a plaintiff, the defendant must have actually relied on that false statement.

Internet service providers have often used Rule 12(b)(6) to obtain dismissal of suits brought against then for their publication of third-party material by successfully asserting that the Communications Decency Act (47 U.S.C. § 230) barred the claim. However, a recent ruling from the Ninth Circuit threatened to overturn this practice. In a May 7, 2009 opinion in Barnes v. Yahoo!, Inc., __ F.3d___, 2009 WL 1232367 (9th Cir. 2009), the Ninth Circuit stated that "section 230(c) provides an affirmative defense" and that [t]he assertion of an affirmative defense does not mean that the plaintiff has failed to state a claim, and therefore does not by itself justify dismissal under Rule 12(b)(6)." The proper procedure, according to the opinion, was for the defendant Yahoo to have filed answer asserting its CDA defense, and then to have filed a motion to dismiss under Federal Rule of Procedure 12(c) -- a motion for judgment on the pleadings.

A Rule 12(c) motion can't be filed until all the pleadings are "settled" -- i.e., after the complaint and all answers have been filed, and all Rule 12(b) motions resolved. This might not occur until many months after a suit is filed. Following the procedure suggested by the Ninth Circuit would have forced Yahoo to start making unwanted disclosures in its answer and possibly under federal automatic disclosure and discovery rules, and to have continued to burn through cash defending the suit.

When I first read this portion of the Ninth Circuit opinion on Barnes v. Yahoo, it struck me as a little odd. Every litigator knows that courts don't like to waste time with obviously meritless suits and that courts often will grant a motion to dismiss if the plaintiff's allegations reveal the presence of an affirmative defense that would bar the case from proceeding. The most common example would be if the allegations in the complaint show that the claim is barred by the statute of limitations. I have participated in successfully bringing several such motions.

Continue reading "Communications Decency Act Update: A CDA Defense Can Be Raised in a Rule 12(b)(6) Motion to Dismiss" »

Is a digital media website the "developer" of all information that it requires users to include in on-line profiles? The disturbing answer, according to a recent court opinion, is "yes."

In a May 22, 2009 ruling, Judge Schell of the Eastern District of Texas dismissed a complaint for negligence, gross negligence and strict products liability against MySpace brought by on behalf of a 15 year old girl who was assaulted by a person whom she met on MySpace.com. See Doe IX v. MySpace, Inc., United States District Court, Eastern District of Texas, No. 4:08-CV-140 (Order granting motion to dismiss). The plaintiff claimed that MySpace was negligent for "refusing to employ reasonable safety features on its website." Order at 2. The plaintiff also argued that MySpace was not entitled to Communications Decency Act immunity because it provided prompts to assist users in creating profiles and thus was a co-developer of the profiles. Presumably the criminal who assaulted the plaintiff had been assisted by these prompts in creating the profile through which he met the plaintiff. Id.

The court rejected both of these arguments. On the first claim, the Court held that in effect the claim was attempting to hold MySpace liable for publishing information furnished by another information content provider. "Failing to employ reason safety features" means much the same thing as negligently deciding whether or not to publish a particular profile -- a traditional function of a publisher. Id. at 2.

On the second claim, the plaintiff argued that MySpace was a co-developer of the profiles on its sites because when a user creates a profile, MySpace prompts the user to enter additional information about "Interests & Personality", "Name", "Basic Info", Background and Lifestyle," Schools," Companies," Networking," and "Song & Video on Profile." The plaintiff claimed that the use of such prompts in Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008) was held to make a website a developer of information on the profile. Id. at 3.

The judge rejected this claim, because "[t]he Ninth Circuit repeatedly stated throughout its en banc opinion that the Roommates.com website required its users to provide certain information as a condition of its use and was, therefore, an (sic) information content provider." Because MySpace users are not required to provide any additional information, MySpace is not an information content provider. Order at 3.

The result in this case is not out of line with prior decisions on the Communications Decency Act. However, I do take issue with his reasoning in finding the MySpace was not a co-developer of its user profiles. While it is true that in Roommate, users were required to enter certain information in profiles, it was not this factor alone that made Roommate a developer of the information on those profiles. After all, many interactive websites require a user to enter basic information such as the user's name, email address and gender. Rather, the problem for Roommate was that the information it required users to provider was found to be discriminatory. As the Ninth Circuit noted: "Not only does Roommate ask these questions, Roommate makes answering the discriminatory questions a condition of doing business." Fair Housing Council, 521 U.S. F.3d at 1166.

The real issue for ISP liability should be whether it is culpable in eliciting the illegal content from a third party. As long as an ISP provides neutral tools to assist users in creating and searching for content -- as MySpace appears to have done here -- then it should get Communications Decency Act protection as not being the publisher or speaker of this material. On the other hand, if a website encourages users to post illegal material, that is a different story.

David D. Johnson is a business lawyer whose practice focuses on litigation and other issues relating to digital media and consumer electronics companies. David can be contacted at (310) 785-5371 or DJohnson@jmbm.com.

Sometimes a shift in label can signal a shift in policy. A recent shift by the Ninth Circuit away from the use of the term "immunity" when describing the effect of the Communications Decency Act appears to signal such a change.

In earlier cases, the Ninth Circuit frequently referred to the Communications Decency Act as providing "immunity" to internet service providers who publish third-party material. See, e.g., Batzel v Smith, 333 F.3d 1018, 1029 (9th Cir. 2003). Many other circuits followed this characterization. The exception was the Seventh Circuit, which pointed out that the operative language, in 47 U.S.C. § 230(c)(1), did not use the word "immunity", but merely provided an exclusion from liability by means of a definition -- by defining an internet service provider as not a "publisher or speaker" in certain contexts. Doe v. GTE Corp., 347 F.3d 655, 660 (7th Cir. 2003).

The Seventh Circuit's approach is not to assume that an internet service provider (ISP) receives blanket immunity for third party content, but to ask whether the suit in question is seeking to treat the ISP as a publisher or speaker. See Chicago Lawyers' Comm. For Civil Rights under the Law v. Craigslist, Inc., 519 F.3d 666, 670-71 (7th Cir. 2008). If the theory of liability is something other than that the ISP is publishing or speaking the words in question, liability may be imposed. For example, the Seventh Circuit stated that Section 230(c)(1) would not "help people steal music or other material in copyright." Id. at 670. (Fn1) The Communications Decency Act would not protect such activities as aiding, abetting, inducing or encouraging, or conspiracy with, a third party to place illegal content on a site. Id. at 671-72.

In earlier decisions, the Ninth Circuit has not been adverse to finding against Communications Decency Act immunity for internet service providers. However, it generally did so by finding that the ISP was itself a co-provider of the illegal content. This was the approach in Batzel v. Smith and Fair Housing Council v. Roommates.com. (Fn2)

While the Ninth Circuit probably has not abandoned this approach, in Barnes v. Yahoo, the Ninth Circuit has now also adopted the Seventh Circuit's "definitional" method for analyzing the scope of the Communications Decency Act. Barnes v. Yahoo, 2009 WL 1232367 * 3-4. This enabled the Ninth Circuit, in Barnes, to find against CDA protection for third-party content, because it was able to characterize the cause of action as something other than holding an ISP liable for speaking or publishing third party content -- in this case, breaking a promise regarding third party content.

Looking at typical cases in which the Communications Decency Act has been applied (defamation, fraud, obscenity, assault/harassment), the "definitional" approach to the scope of the CDA would seem to move the debate to determining the kinds of acts by an ISP that rise to the level of encouraging illegal behavior. Given the fact-intensive nature of this determination, the outcome of many cases currently in the works should be interesting.

David D. Johnson is a business lawyer whose practice focuses on litigation and other issues relating to digital media and consumer electronics companies. David can be contacted at (310) 785-5371 or DJohnson@jmbm.com.

Notes:

Fn1 In making this comment, the Seventh Circuit seemed to forget that 47 U.S.C. §230(e)(2) specifically excluded laws relating to intellectual property from the application of §230.
Fn2 Batzel v. Smith, 333 F.3d 1018, 1031-35 (9th Cir. 2003); Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1163-1167.

A May 7, 2009 ruling by the Ninth Circuit means that digital media companies will have to be careful about what they say when dealing with a complaint about an offending post. In another of a series of recent cases that have begun to find limits in the "immunity" provided by the Communications Decency Act, on May 7, 2009, a Ninth Circuit three-judge panel held that the CDA provides no protection to an internet service provider who promises, but then fails, to remove content provided by a third party.

Barnes v. Yahoo!, Inc. __ F.3d___, 2009 WL 1232367 (9th Cir. 2009) concerned an alleged fact situation in which after the breakup of their relations, the plaintiff's boyfriend began to post profiles regarding the plaintiff (Barnes) on Yahoo websites and in Yahoo chatrooms. These posts contained nude photos of the plaintiff, a solicitation to engage in sexual intercourse and provided the address and phone number at her place of employment. Before long, Barnes was peppered with emails, phone calls and personal visits, "all in expectation of sex." 2009 WL 1232367 at *1. A virtual repeat of Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1122 (9th Cir. 2003).

Barnes sent Yahoo several formal requests for the takedown of the posts. Nothing happened. Then, the day before a local news outlet was preparing to broadcast a report on the incident, Yahoo's director of communications called Barnes, asked her to fax directly the previous statements she had mailed and told Barnes that she would "personally walk the statements over to the division responsible for stopping unauthorized profiles and they would take care of it." 2009 WL 1232367 at *1.

Barnes claims that she relied on this statement and took no further action on the profiles. However, apparently still failing to get any action, two months later Barnes filed this suit against Yahoo. Shortly thereafter, the profiles disappeared. Id.

Barnes sued Yahoo under two causes of action: (i) negligent undertaking, and (ii) promissory estoppel. "Negligent undertaking" is based on the principal that if you decide to help someone else out, as a Good Samaritan, to protect their person or things, you are subject to liability if you act negligently. "Promissory estoppel" is based on the idea that if you make a promise, with the intent that a third party rely on it, you can be held liable if you fail to perform that promise.

In response to Barnes' complaint, Yahoo argued that it was immune from liability under the Communications Decency Act (47 U.S.C. § 230(c)). The Ninth Circuit agreed as to the negligent undertaking claim, but not as to promissory estoppel. The difference for the Court was the nature of the specific act on which Yahoo was being sued under the two legal theories -- Yahoo's failure to take down the posts v. Yahoo's failure to keep its promise to take down the posts.

Continue reading "Barnes v. Yahoo: No Communications Decency Act Protection for Internet Service Provider Who Fails to Keep Its Promise to Take Down an Offending Post" »

The actions taken by craigslist in its recent disputes with the state attorneys general appear contradictory.

Craigslist has now twice agreed to measures to limit its "erotic services" section. On November 6, 2008, craigslist signed a joint statement with 43 state attorneys general under which it agreed to do such things as create a system to identify and remove pornography and to charge fees for ads posted to its "erotic services" section with the goal of reducing the number of such ads. (Fn1) Then, on May 5, 2009, South Carolina Attorney General Henry McMaster sent a letter to craigslist stating that the site would be subject to criminal prosecution if it did not remove all material that made it possible for third parties to post content soliciting prostitution or containing pornographic images. According to press reports, Attorney General McMaster was considering actions against craigslist for "aiding and abetting prostitution, obscenity and conspiracy." (Fn2) As a result, on May 12, craigslist responded by voluntarily terminating its "erotic services" subcategory and replacing it with an "adult" category. This new category was only to be for "lawful activities", and craigslist agreed to manually screen all ads before they appeared on the site and to reject all ads that contained nudity or appeared to offer illegal services.

However, at the same time, craigslist has continued to insist that it had no legal obligation to take these actions, because of its immunity under the Communications Decency Act and U.S. Constitutional protections. According to the May 20, 2009 complaint it filed in the U.S. District Court of South Carolina to prevent the McMaster from initiating criminal action against it, craigslist's decisions to modify its site were merely "voluntary actions to deter abuse of its website as a matter of good corporate citizenship . . . ."

There is no question that craigslist's changes to its website make good sense from public relations and corporate citizenship standpoints. But did recent court decisions regarding the scope of the Communications Decency Act inform these changes as well?

Continue reading "Did Recent Decisions on the Scope of Immunity under the Communications Decency Act Inform Craigslist's Decision to Modify Its Site?" »

A recent Wall Street Journal article highlights an important fact about digital media immunity acts such as the Communications Decency Act and the Digital Millennium Copyright Act. These acts generally only protect information intermediaries, not original authors of content.

According to the May 21, 2009 article, "Bloggers, Beware: What You Write Can Get You Sued", a blogger made several posts in online forums about a hacker attack on a company that makes software used to track sales for adult entertainment sites. The blogger allegedly claimed that personal information of the sites' customers had been compromised. While the blogger may have thought that her intentions were noble, the company sued her for defamation, contending that no consumer data was compromised and accusing her of embarking on a campaign to defame it.

In this situation, the Communications Decency Act (47 USC Sec. 230(c)(2)) would likely provide immunity to the online forums on which the blogger posted her statements. However, it would not immunize the blogger, assuming that she was the original source of the allegedly defamatory statements, because it only provides protection for "information provided by another information content provider."

Similarly, the Digital Millennium Copyright Act (17 USC Sec. 512) would also likely provide immunity for any claims of copyright infringement to the internet service provider. However, it also would not immunize the blogger, because its relevant provision only provides protection for "infringement of copyright by reason of storage at the direction of a user". (Sec. 512(c)).

The general public is aware that the film and recording industries have been able to sue users of file sharing sites for copyright infringement. However, digital media users may not be aware that blogging or posting information on an interactive website can expose them to a wide variety of speech-related tort suits, as well. Because the internet enables messages to be broadcast easily to a massive audience, it actually vastly increases the chance that a thoughtless word can cause damage, and thus give rise to legal liability on the part of the author.

So what do I recommend that a person, like me, who creates original digital media material, do to protect him/herself?

First of all, recognize that you are an author of material that is being published to a potentially vast audience. Second, before you hit the "post" button, review what you have written and see if it contains material about a third party that they might claim constitutes a threat to their safety, is false, injures their reputation, casts them in a bad light or releases personal information about them. Third, also consider whether your use of third party materials is fair. Is your post really nothing more than a copy of someone else's material? Have you credited the third-party sources you used?

The unconsidered potential for liability when posting on the internet reminds me of an incident from Ronald Reagan's presidency. On August 11, 1984, during a mike check before his weekly Saturday radio address, President Reagan made the quip "My fellow Americans, I'm pleased to tell you today that I've signed legislation that will outlaw Russia forever. We begin bombing in five minutes." While he intended this as a private joke, the statement was leaked to the public and created a major international incident, reportedly causing the Soviet Army temporarily to go on alert.

The internet can be an even louder megaphone. When you post, don't forget that people are listening.

David D. Johnson is a business lawyer whose practice focuses on litigation and other issues relating to digital media and consumer electronics companies. David can be contacted at (310) 785-5371 or DJohnson@jmbm.com.