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Designer Skin LLC v. S & L Vitamins, Inc., et al.
Unauthorized internet reseller of plaintiff’s products is not guilty of trademark infringement, and does not cause actionable initial interest confusion, by using plaintiff’s trademarks in meta tags of website at which plaintiff’s and its competitors’ products are sold, and in...

Communications Decency Act - Internet Library of Law and Court Decisions - Updated November 22, 2008

This section of the Internet Law Library contains a host of court decisions that address the extent of the immunity afforded by the Communications Decency Act, 47 U.S.C. Section 230, to Internet Service Providers, commercial websites, search engines, message boards, web hosting companies, gripe site operators and others for making available to the public content authored by third parties.

26 Med. L. Rptr. 1032 (Cal. Superior Crt., San Francisco City and County, Sept. 23, 1997)

Communications Decency Act preempts state law claims against ISP for negligence, breach of contract, intentional infliction of emotional distress, alter ego liability, injunctive relief and violation of civil rights arising from IPS's distribution of material written by another that contained derogatory comments about plaintiffs, including that they were the "ring leaders" of an "international conspiracy" to further "Satanic Ritual Abuse" of children.

1 CA-CV 04-0823, 125 P.3d 389 (Arz. Crt. App., 2006)

Court holds that the Communications Decency Act, 47 U.S.C. § 230 ("CDA") immunizes web hosting company from liability arising out of its hosting of a third party's website that allegedly contained defamatory statements about plaintiff.  Following the Fourth Circuit's decision in Zeran v. AOL, the Court holds that such immunity exists notwithstanding any notice the web hosting company received concerning the defamatory nature of the content it was hosting.  The Court also dismisses plaintiff's defamation claims against the originator of the content at issue, holding it lacks personal jurisdiction over him.  The Court reached this result notwithstanding the fact that this defendant had contracted with an Arizona web hosting company to host the website which contained the defamatory statements at issue.  The Court held the exercise of jurisdiction over the defendant would be unreasonable given the fact he was a non-resident, the parties each operated Bali-related travel services, and the dispute was governed by Bali law.

2005 WL 3005602, Civ. No. 05-926-AA (D. Or., November 8, 2005)

Court holds that the Communications  Decency Act, 47 U.S.C. § 230 ("CDA"), immunizes defendant Yahoo, Inc. ("Yahoo") from tort claims arising out of its alleged failure to timely honor promises to remove from Yahoo's web site objectionable content about plaintiff posted by a third party.  The content consisted of "profiles" contained both nude photos of plaintiff, and accurate contact information.

S122953, 40 Cal.4th 33 (Cal. Sup. Ct., November 20, 2006)

Reversing the Court of Appeals, the California Supreme Court holds that Section 230 of the Communications Decency Act ("CDA") immunizes defendant Ilena Rosenthal ("Rosenthal") from defamation claims arising out of her republication in two online newsgroups of an allegedly defamatory article authored by a third party.  In reaching this result, the California Supreme Court rejected the Court of Appeals' attempts to limit the immunity afforded by Section 230(c)(1) of the CDA to publishers, while leaving exposed to defamation claims "distributors" of defamatory statements who have notice of the defamatory nature of the statements they distribute.  The Supreme Court held that such "distributors," commonly know as "secondary publishers," are entitled to the same broad immunity afforded publishers under the CDA.  As explained by the Fourth Circuit in Zeran v. AOL, cited with approval by the California Supreme Court, the CDA "creates a federal immunity to any cause of action that would make service providers liable for information originating with a third party user of the service" except claims such as those arising under the Intellectual Property laws, specifically exempted by the statute.

The Supreme Court also held that the broad immunity afforded under the statute to the providers of interactive computer services extended by operation of the statute's express language to "users" of such services.  "Users" protected by the CDA included those who use an interactive computer service to access the Internet and thereby to post or republish on the Internet a defamatory statement authored by a third party.  As stated by the Court, "by declaring that no 'user' may be treated as a 'publisher' of third party content, Congress has comprehensively immunized republication by individual Internet users."

9 Cal.Rpt.3d 142, A096451 (Cal. App. Crt., 1st App. Dist., October 15, 2003) reversed 40 Cal.4th 33, S 122953 (Cal. Sup. Ct., November 20, 2006)

Rejecting Zeran v. America Online, (4th Cir. 1997) and its progeny, an intermediate California Appellate court holds that the Communications Decency Act ("CDA") does not immunize a user of interactive computer services from a defamation claim arising out of her republication of statements authored by a third party, when the user knew or had reason to know of the falsity of those statements.  As a result, the Appellate Court reversed to much of the decision of the trial court below which had dismissed a defamation claim brought against defendant Ilena Rosenthal as a result of her republication in Usenet postings of a statement authored by a third party (defendant Timothy Bolen) which accused plaintiff Polevoy of criminal conduct.

The trial court had also rested its dismissal under California's Anti-SLAPP statute of plaintiffs' defamation claims on its determination that Polevoy lacked the requisite probability of success because, as a public figure, he could not prove that defendant Rosenthal acted with 'malice' when republishing Bolen's statements.  The Appellate court rejected this determination, holding that plaintiff may be able to establish that Rosenthal acted with the required malice, and therefore could proceed, notwithstanding Rosenthal's allegation that she had checked the veracity of the statements she was republishing with the alleged victim.  The Appellate Court held that such was insufficient to require dismissal of plaintiff's complaint, because of the alleged bias of both the victim and the original author of the posting against the plaintiff.

The Appellate Court did affirm the lower court's dismissal of defamation claims advanced by plaintiff Barrett, because the statements at issue were non-actionable opinion, as well as the trial court's decision to award Rosenthal attorney's fees expended in pursuing her Anti-SLAPP motion to dismiss (though reducing the recoverable amounts to reflect the reversal of that court's decision as to the claims asserted by Polevoy).

This decision, if followed, could have important ramifications for internet service providers and others who regularly repost publications authored by third parties without reviewing their content.  Under the court's ruling, service providers can be liable for defamation as a result of their republication of such statements if they know or have reason to know of the falsity of those statements.  According to the court "distributor liability would [generally] not require a service provider to review communications in advance of posting them but only to act reasonably after being put on notice that the communication is defamatory."  As a result, once the service provider receives notice (from the allegedly defamed individual) of falsity, it must either undertake adequate steps to ascertain the veracity of the statement, remove it, or face potential liability.  This creates tremendous uncertainty as the court did not specify what such adequate steps would be.  Indeed, as noted above, in the case at bar, where plaintiff alleged he was defamed by a statement that he had engaged in criminal conduct, the court held that contacting the victim was not sufficient as a matter of law to warrant dismissal of plaintiff's suit because of the victim's purported bias against plaintiff Polevoy.  Subsequent developments in this case should be watched closely by those interested in this field.

333 F.3d 1018, No. 01-56380 (9th Cir., June 24, 2003) petition rehearing and rehearing en banc, denied, 351 F.3d 904 (9th Cir., December 3, 2003)

In this defamation suit, the Ninth Circuit Court of Appeals holds that the operator of a listserv and website is a user of interactive computer services entitled to the protections of the Communications Decency Act ("CDA") against liability arising out of his publication of information provided by another information provider.  Because, however, the author of the information at issue claimed he did not mean for the defendant operator of the listserv to publish it, the Ninth Circuit remanded the case to the District Court for a determination as to whether the listserv operator was entitled to immunity under the CDA in this particular case.  Such immunity should be granted, held the Ninth Circuit, if the information in question was provided to the listserv operator by a third party under circumstances in which a reasonable person would conclude that the third party provided the information for publication on the Internet.  The Ninth Circuit accordingly vacated so much of the District Court's decision which denied defendant's motion to dismiss this defamation action under California's Anti-SLAPP statute, which motion was to be reconsidered on remand.  The Ninth Circuit also affirmed the District Court's rejection of plaintiff's defamation claims against Mosler, which were predicated solely on its placement of ads on the website at issue.

No. CV-06-1537-PHX-DGC (D. Az., September 5, 2008)

Court in large part grants defendants’ motion for summary judgment, and dismisses claims arising out of defendants’ operation of a website on which third parties, and defendants themselves, posted a number of statements critical of plaintiff Best Western International Inc.  Left unresolved by the Court’s motion were plaintiff’s claims that a number of additional posts authored by defendants were in fact defamatory.

Best Western is a non-profit member corporation, which assists its members in running their hotels.  Defendants are members of Best Western who operate hotels, their spouses, and an individual who assisted in the creation of the website at issue.  The member defendants are bound by the terms of membership agreements with plaintiff. 

The Court held that the immunity granted defendants under the Communications Decency Act barred plaintiff from seeking to hold them liable for defamatory posts authored by third parties that appeared on defendants’ website.  Defamation claims arising out of 50 posts defendants themselves authored failed because plaintiff did not present sufficient evidence to establish that defendants acted with the requisite degree of fault necessary to sustain a defamation claim.  Thus, plaintiff failed to establish that defendants acted with either actual malice or negligence in making these statements, or with knowledge of their alleged falsity.   In reaching this result the Court noted that possessing ill will toward plaintiff was insufficient to establish ether that defendants acted with the requisite degree of fault, or that they were guilty of defaming plaintiff. 

The Court also rejected tortuous interference with contract or prospective advantage claims arising out of the posting on defendants’ site of statements urging plaintiff’s members to switch to a competitor’s organization.  The Court held that plaintiff failed to prove either that such statements caused it any injury, or that defendants or the competitor acted improperly in making these posts.  In reaching this result, the Court noted that plaintiff’s competitor is free to make posts that promote itself and its own economic interests.

Finally, the Court rejected various breach of contract claims advanced by plaintiff, asserting that defendants breached the parties’ membership agreement by making public confidential information, or failing to meet the membership agreement’s requirement to use their best efforts to maintain positive relationships with customers.  As to the former, the Court held there were no such prohibitions in the parties’ agreement that bound defendants.  As to the later, the Court held that the prohibitions applied to other aspects of defendants’ business, with which obligations defendants complied.

The Court did allow plaintiff Best Western to pursue breach of contract claims arising out of the use by the member defendants of Best Western’s trademark on the website at issue, which use purportedly violated the parties’ membership agreement.

992 F. Supp. 44 (D.D.C. April 22, 1998)

Court holds defamation claim against AOL as a result of its making available a gossip column written by a third-party content provider titled the"Drudge Report" was barred by the Communications Decency Act. Court reached this conclusion notwithstanding the fact that AOL had reserved the right to exercise control over the Report's editorial content, and further, had promoted the report as a gossip column, thereby acknowledging the nature of the report's general content and the risks inherent therein.

The court denied defendant Drudge's motion to dismiss for want of personal jurisdiction. Drudge's maintenance of an interactive website, on which his Report appeared, which permitted users to subscribe to the Drudge report via e-mail, and solicited contributions from forum residents to defray publication costs, combined with other contacts with Washington D.C., including a visit to D.C. to promote the report, and mail and phone contacts to obtain gossip, made the exercise of jurisdiction over him appropriate.

339 F.3d 1119 (9th Cir., August 13, 2003)

Ninth Circuit holds that operator of online dating service is immunized by the Communications Decency Act ("CDA") from defamation, invasion of privacy, misappropriation of right of publicity and negligence claims arising out of the unauthorized posting on defendant's website by a third party of a fictitious dating profile.  This profile contained fictitious information about plaintiff, an actress, as well as accurate contact information and photographs of her.  This information was posted in response to a form questionnaire prepared by defendant to which all users of its service had to respond.

207 F. Supp. 2d 1055 (C.D. Cal., March 11, 2002), aff'd. on other grds., 339 F.3d 1119, No. 02-55658 (9th Cir., August 13, 2003)

Court grants motion of defendants Metrosplash.com and Lycos for summary judgment, and dismisses claims of invasion of privacy, defamation, misappropriation of right of publicity and negligence brought against them by plaintiff Carafano, an actress.  These claims arose out of the posting of a dating profile by a third party on the defendants' Matchmaker website, which profile allegedly contained fictious information about plaintiff, as well as accurate contact information and photographs of her.  This information was posted in response to a form questionnaire prepared by defendants to which site members had to respond.

The court rejected defendants' argument that plaintiff's claims were barred by application of Section 230 of the Communications Decency Act.  While the defendants were "interactive service providers" within the meaning of the statute by virtue of their operation of the Matchmaker website, defendants were not entitled to the statute's protection because of the role they played in originating the content in question.  Such protections are available only as to claims arising out of information provided by an information content provider other than the defendant.  The court barred defendants from using the CDA as a shield because the information in question was posted in response to a questionnaire prepared by defendants.

Nonetheless, the court dismissed each of the claims raised by plaintiff against defendants.  Plaintiff's invasion of privacy claim failed because the information in question, her address, was "newsworthy," making its publication non-actionable.  The defamation claim was dismissed because, given plaintiff's status as a public figure, she could not show that defendants acted with actual malice in publishing the statements in question, a prerequisite to such a claim.  Such malice was absent because defendants were unaware of the information contained in "plaintiff's" profile at the time it was posted to defendants' site by a third party, and thus did not entertain any serious doubt as to its truth at the time it was published.  Plaintiff's misappropriation of right of publicity and negligence claims failed for the same reason, plaintiff's inability to establish that defendants acted with the requisite actual malice.

461 F.Supp.2d 681, Case No. 06 C 0657 (N.D. Ill., November 14, 2006) aff'd -- F.3d -- (7th Cir. Mar. 14, 2008)

Court holds that the Communications Decency Act ("CDA") immunizes defendant Craigslist, Inc. ("Craigslist") from liability for publishing housing ads authored by third parties that allegedly violate the Fair Housing Act, 42 U.S.C. § 3604(c) ("FHA").  In reaching this result, the Court held that the immunity afforded internet service providers under section 230(c)(1) of the CDA only extends to claims seeking to hold an ISP liable as a publisher for content authored by third parties, and not to all claims arising out of the ISP's role in giving the public access to such content.  Because the FHA claims at issue were premised on Craigslist's publication of offensive ads authored by third parties, the Court held they were barred by the immunity granted under Section 230(c)(1).

No. 07-1101 (7th Cir., March 14, 2008)

Affirming the District Court below, the Seventh Circuit holds that Craigslist cannot be held liable for violating the Fair Housing Act as a result of its online publication of discriminatory housing ads authored by third parties. To hold Craigslist liable for such conduct would require it to be treated as a ‘publisher’ of these advertisements, which is prohibited by Section 230(c)(1) of the Communications Decency Act.  As a result, the Seventh Circuit affirms the District Court’s grant of summary judgment, dismissing plaintiff’s Fair Housing Act claims against Craigslist.

CV 2007-003720 (D. Ariz., October 24, 2007)

Court holds that the Communications Decency Act (“CDA”), 47 U.S.C. Section 230(c)(1), mandates dismissal of so much of plaintiff’s defamation claim that arises from the publication by third parties of comments critical of plaintiff on a website defendants operate known as the “ripoffreport.com.”  The CDA further mandates dismissal of claims arising out of defendants’ promotion of its site and the allegedly objectionable content thereon, making the site more accessible to search engines and users, or soliciting contributions to assist in making the information on the site available.  The Court did , however, allow plaintiff to pursue defamation claims arising out of the headlines for third party content authored by the defendants, which themselves purportedly contained defamatory content.

351 F.Supp. 2d 1090 (W.D. Wash., December 21, 2004)

Court holds that the Digital Millennium Copyright Act ("DMCA") immunizes Amazon.com, Inc. ("Amazon") from copyright infringement claims arising out of the sale by nonaffiliated third party vendors on Amazon.com of photographs in which plaintiff claims a copyright.  In reaching this result, the Court held that Amazon had met both the DMCA's threshold requirements, as well as the requirements necessary to qualify for the protection of the safe harbor provisions of 17 U.S.C. § 512(c).  512(c) protects service providers from liability for copyright infringement by reason of their storage of infringing materials at the direction of a third party.

The Court dismissed plaintiff's Lanham Act claim, finding that it was the Copyright Act, and not the Lanham Act, that provided any remedy for the alleged wrongs at issue.  The Court also dismissed plaintiff's Washington State law Consumer Protection Act and tortious interference with business relations claims, finding Amazon immunized therefrom by operation of the Communications Decency Act.

Finally, the Court held that issues of fact precluded dismissal of copyright infringement claims plaintiff asserted arising out of the alleged use of one of its copyrighted images in an advertisement on a separate website owned by Amazon.

52 Cal.Rptr. 3d 376 (Cal. Crt. App., December 14, 2006)

A California intermediate appellate court holds that the Communications Decency Act ("CDA"), 47 U.S.C. Section 230(c), immunizes an employer from claims arising out of the transmission by a then employee of threatening emails to, and posts about, plaintiffs from his office computer.  As a result, the Court of Appeals affirmed the dismissal of intentional infliction of emotional distress claims advanced by plaintiffs against Agilent Technologies.  Plaintiffs had sought to hold Agilent Technologies responsible for its employee's threatening conduct on theories of respondeat superior, negligent supervision/retention, and ratification. 

The Court further held defendant entitled to summary judgment dismissing such claims on the facts before it.  The respondeat superior claim failed because the evidence established that the employee was acting outside the scope of his employment when he transmitted the threatening emails in question.  The negligent supervision/retention claim similarly failed because there was no evidence that Agilent Technologies was aware of its employee's activities when he was transmitting the emails at issue from his office computer.  Agilent only learned of this misconduct after the fact, at which time it terminated the employee.  Finally, there was no evidence that the defendant employer ratified its employee's misconduct.

433 F. Supp. 2d 523 (E. D. Pa., May 26, 2006), aff'd., No. 06-3171 (3rd Cir., September 19, 2007).

Communications Decency Act immunizes operator of message board from defamation claims arising out of posts appearing thereon that were authored by others.  Such immunity extends to the defendant operator notwithstanding plaintiff’s claim that the defendant edits posts that appear on his boards, and selects posts that will either be published thereon, or removed therefrom.  The Court accordingly dismissed with prejudice defamation claims asserted by plaintiff Anthony DiMeo III arising out of offensive postings that appeared on defendant’s message boards. 

The Court also dismissed plaintiff’s claim that defendant violated the criminal statute 47 U.S.C. § 223 (a)(1)(C), which prohibits use of a telecommunications device anonymously to harass another.  Defendant neither acted anonymously – his name appeared both in the domain name and title of the message boards found on his website – nor did he use a telecommunications device, within meaning of the statute, in operating his web site.

Analysis of the Third Circuit's decision can be found below in the Quick Hits section of this page.

Case No. 97-2587, 718 So. 2d 385 (Fourth District Court of Appeal, Fla, October 14, 1998) aff'd. 2001 Fla. Lexis 449 (Fla. March 8, 2001)

Relying heavily on Zeran v. AOL, 129 F.2d 327 (4th Cir. 1997) cert. denied, 118 S.Ct. 2341 (1998), the Florida District Court of Appeal affirmed the lower court's holding that the Communications Decency Act preempts state law claims advanced against an information service provider arising out of the ISP's allegedly improper participation in the sale or distribution of obscene material due to its alleged notice that a third party was using the ISP's chat rooms to market pornographic materials. The Court also affirmed that lower court's holding that the CDA preempts state law claims arising out of events that occurred prior to the CDA's enactment, but which claims were not asserted until after the CDA's enactment.

Case No. CL 97-631AE (Cir. Ct. Palm Beach Co. Fla, June 26, 1997), aff'd. 718 So. 2d 385 (Fl. Ct. App., Oct. 14, 1998) aff'd. 2001 Fla. Lexis 449 (Fla. March 8, 2001)

Communications Decency Act preempts state law claim of improper participation in sale or distribution of obscene material asserted against information service provider as a result of its alleged notice that third party was using ISP's chat rooms to market pornographic materials. Court further held that CDA applies retroactively to preempt state law claims arising out of events that occurred prior to the CDA's enactment, but which claims were not asserted until after the CDA's enactment.

Civil Action No. 07-cv-286 (D. N.H., March 27, 2008)

Court holds that the Communications Decency Act immunizes defendants from various non-intellectual property claims arising out of their making available on their adult social networking sites an anonymous profile authored by an unknown third party which plaintiff claims falsely appears to people who know her to be her own.  The Court holds that this immunity also covers non-intellectual property claims arising out of defendants reposting this profile on third party sites, making slight alterations to the profile as to the participant’s age, and using the profile in teasers and other advertisements for defendants’ site.  As a result, the Court dismissed claims plaintiff advanced for defamation, intentional infliction of emotional distress, intentional, reckless, negligent and/or willful and wanton conduct, and violations of the New Hampshire Consumer Protection Act, arising out of such alleged misconduct.

The Court held that the Communications Decency Act did not, however, immunize defendants from intellectual property claims plaintiff advanced, both under applicable federal and state laws, including right of publicity claims advanced under New Hampshire state law.   Plaintiff was accordingly allowed to proceed with claims that defendants, by including identifiable aspects of plaintiff’s persona in advertisements and ‘teasers’ in an effort to increase the profitability of their websites, violated her right to publicity.

The Court further held that plaintiff could proceed with Lanham Act false designation of origin and false advertising claims against the defendants.   The false advertising claim was based on the inclusion of the profile at issue in ‘teasers’ and other advertisements for defendants’ site.  These acts allegedly deceived consumers into registering for defendants’ services in the hope of interacting with plaintiff, and caused injury to her reputation as a result, including alleged lost employment opportunities.  The false designation of origin claims similarly arose out of defendants’ use of the profile at issue in marketing their sites, which falsely implied plaintiff’s affiliation with, or sponsorship and approval of, defendants’ site and service.

No. 07-50345 (5th Cir., May 16, 2008)

Affirming the decision of the District Court below, the Fifth Circuit holds that section 230(c)(1) of the Communications Decency Act immunizes the social networking site Myspace Inc. from claims of negligence and gross negligence arising out of the alleged sexual assault of a minor made possible by her posting of a ‘user profile’ on Myspace.com.  As a result of this posting, a male, age 19, made contact with the minor, who falsely represented she was 18, and sexually assaulted her.  The Fifth Circuit held Myspace was immunized from plaintiff’s negligence and gross negligence claims, because they sought to hold Myspace liable for its role in making content authored by a third party – the minor’s user profile and personal information contained therein – available to third parties. 

In reaching this result, the Fifth Circuit rejected plaintiff’s attempt to avoid the bar of the CDA by arguing that they sought to hold Myspace liable for its alleged failure to institute adequate safety measures to protect minors, particularly from sexual predators.

Because the Fifth Circuit held that Section 230(c)(1) of the CDA barred plaintiffs’ claims, the Court did not review so much of the District Court’s decision that held that those claims were also barred by both Section 230(c)(2) of the Communications Decency Act, as well as applicable principles of Texas common law.

2000 U.S. Dist. Lexis 8845 (N.D. Ill., June 21, 2000)

Court holds that those engaging in web site hosting activities are immunized by the Communications Decency Act, 47 U.S.C. 230(c) from liability arising out of their involvement, via those activities, in the dissemination or publication of information originating from third parties. Section 230(c)(1) 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 court held that those who provide web hosting services are service providers within the meaning of the CDA, and hence entitled to the immunity it provides. Said the court: "by offering web hosting services which enable someone to create a web page, [defendants] are not magically rendered the creators of those web pages. See 47 U.S.C. 230(c)(1). As such, plaintiffs' new characterization of [defendants] as web hosts neither prevents these defendants from being deemed service providers protected by immunity under the CDA nor makes them content providers unprotected by the CDA's immunity."

27 Med. L. Reptr. 1794(D.N.M., Mar. 1, 1999), aff'd. 206 F.3d 980 (10th Cir.,Mar. 14, 2000), cert. denied, 531 U.S. 824 (Oct. 2, 2000)

Court dismissed claims of defamation and negligence asserted by plaintiff company against America Online ("AOL") arising out of AOL's posting of allegedly inaccurate stock quotes concerning plaintiff on its website, which quotes had been supplied to AOL by third-party content providers. Court held that such claims were barred by 47 U.S.C. §230, and the immunity granted thereunder to providers of "interactive computer services" such as AOL, for publication of content prepared by third-party information content providers. This dismissal was mandated even though AOL attempted to have its vendors correct the errors at issue.

489 F.3d 921, CV-03-09386-PA (9th Cir., May 15, 2007) aff'd en banc 2008 WL 879293 (9th Cir., April 3, 2008).

A divided three judge panel of the Ninth Circuit limited the immunity afforded by the Communications Decency Act (“CDA”), 47 U.S.C. section 230, for website operators involved in the publication and distribution of the responses to questionnaires completed by third parties concerning their roommate preferences. 
The Panel unanimously held that the CDA did not immunize defendant Roommates.com from potential liability for drafting and posting questionnaires that sought information from those using the site about their roommate preferences.  These questionnaires, among other things, sought information about the preferred sexual orientation of the prospective roommate, and were used to create member profiles.  The Panel held that the CDA did not immunize Roommates.com from potential liability under the Fair Housing Act (“FHA”) for requiring members to answer questions that potentially enabled other members to discriminate for or against them.

By a vote of 2 to 1, the Panel further held that the CDA did not immunize Roommates.com from potential liability under the FHA for publishing and distributing member profiles created in response to Roommates.com’s questionnaires.  Roommates.com used the content of a user’s responses to its questionnaires to determine who among its members should receive notice that they were seeking a roommate, and/or be permitted to view that user’s profile.  For example, an individual with children was not shown a listing for an apartment occupied by an individual seeking a roommate without children.  The court held that by categorizing, channeling and limiting the distribution of user profiles, Roommates.com was sufficiently involved in the creation of the distributed information to lose the immunity afforded by the CDA to interactive service providers who make available content drawn by third parties. As a result, the Ninth Circuit allowed plaintiffs to proceed with claims that by such conduct, Roommates.com violated the FHA.

Finally, by a vote of 2 to 1, the Court held that the CDA did immunize Roommates.com from potential FHA liability arising out of its publication of users’ responses to Roommates.com’s requests for “Additional comments” concerning their roommate preferences.  In this section of its questionnaire, Roommates.com “strongly recommend[ed the user] tak[e] a moment to personalize your profile by writing a paragraph or two describing yourself and what you are looking for in a roommate.”  This question produced the most provocative – and potentially discriminatory - responses found in user profiles.  The court held that the responses to this question constituted content created by third parties within the meaning of the CDA.  As a result, held the Court, by application of the CDA, Roommates.com could not be held liable for publishing these responses on its website.

Case No. 06-CV-105-D (D. Wy., September 28, 2007)

Court finds defendants guilty of engaging in unfair business practices in violation of Section 5(a) of the FTC Act, 15 U.S.C. Section 45(a), by obtaining and selling confidential customer phone records without the affected customers’ authorization.  The Court found that defendant Abika.com arranged for the purchase of these phone records from third party vendors, which they subsequently resold via their website to third parties.  Illegal means were used by these vendors to obtain the confidential phone records, a fact of which, the Court found, defendant was aware.

In reaching this result, the Court rejected defendants’ claim that they were immunized from suit by application of Section 230 of the Communications Decency Act (“CDA”).  Defendants attempted to come within the ambit of the CDA by casting themselves as a search engine that put those seeking to purchase phone records in touch with ‘researchers’ seeking to sell them.  This characterization of their conduct was rejected by the Court.   The Court held that CDA immunity was not available to defendants because the claims at issue did not seek to treat them as the publisher of information, a prerequisite to such immunity.  Rather, they arose out of defendants’ purchase and resale of confidential information to third parties that was obtained through illegal means.  The Court further held that CDA immunity was not available because of defendants’ role in causing the information at issue to be obtained.  As such, defendants were held to have ‘participated in the creation or development of the information, and thus do not qualify for Section 230 immunity.’

Finally, the Court rejected defendants’ claim that the FTC was equitably estopped by its prior failure to prosecute phone record brokers from doing so here.  Such alleged inactivity was insufficient to estop the government from enforcing the laws of the land.

99 Cal. App. 4th 816, Super Ct. No. GIC746980 (Cal. Crt. App., June 26, 2002)

California intermediate appellate court affirms the decision of the trial court, and dismisses claims brought by plaintiffs against eBay under both California's Autographed Sports Memorabilia statute and California's Unfair Competition law, as well as for negligence, arising out of plaintiffs' purchase of allegedly non-authentic autographed sports memorabilia offered for sale by third parties on eBay's web site. Plaintiffs sought to hold eBay liable under California's Autographed Sports Memorabilia statute as a result of eBay's alleged failure to supply certificates warranting the authenticity of the goods purchased.  The court held that eBay was not obligated to supply the certificates because it was not a "dealer" of sports memorabilia within the meaning of the statute, as the goods in question were sold by third parties.  The court further held that section 230 of the Communications Decency Act ("CDA") immunized eBay from any liability arising out of its failure to supply these certificates.  The court held that, however couched, plaintiffs' claim sought to hold eBay liable for the allegedly false descriptions of the goods supplied by third parties.  As the CDA creates "federal immunity to any cause of action that would make interactive service providers liable for information originating with a third party use of the service" (excepting intellectual property claims) plaintiffs' Autographed Sports Memorabilia claims had to be dismissed.

The court held that plaintiffs' negligence and Unfair Competition claims were also barred by the CDA as each of these claims was also premised on content supplied by third parties.  These claims attacked eBay for giving the sellers of the goods at issue positive ratings concerning their past sales history, and urging purchasers to rely thereon in making their decision to purchase goods from those sellers.  These positive ratings were, however, simply an accurate reporting of customer feed back supplied by third parties concerning their alleged transactions with the sellers.  As such, eBay could not be held liable for the inaccuracy of such positive ratings because to do so would be to hold eBay liable for content originated by third parties, which is barred by the CDA.

No. 07-956-PHX-FJM (D.Az. October 10, 2007)

Court dismisses defamation claims advanced against defendant, operator of the website ripoffreport.com, arising out of defendants’ publication of statements authored by a third party that were critical of plaintiffs.  The Court held such claims barred by application of the Communications Decency Act (“CDA”), 47 U.S.C. Section 230.  Notably, the court refused to issue plaintiff relief notwithstanding the fact that the author of the statements at issue allegedly requested without success that defendants remove them from ripoffreport.com.

The Court also declined to enforce a preliminary injunction issued on default by a Canadian court, directing defendants to remove the statements at issue from their website, on the ground that United States courts will not enforce injunctions issued by foreign courts.

318 F.3d 465, No. 01-1120 (3rd Cir., January 16, 2003)

Affirming the decision of the court below, the Third Circuit holds that the Communications Decency Act ("CDA") immunizes America Online ("AOL") from claims arising out of the transmission by unrelated third parties in an AOL chat room of (i) a "punter program", which disrupts the operation of the recipient's computer, and (ii) defamatory messages concerning the plaintiff.  The Third Circuit further holds that AOL's allegedly negligent failure to prevent such events from occurring did not breach its Member Agreement, in which it expressly disclaimed liability for the transmissions of others.

135 F.Supp.2d 409, 00 Civ. 549 (S.D.N.Y., March 19, 2001)

Court holds that neither the Communications Decency Act or the First Amendment immunize an Internet hosting company from potential liability under the Lanham Act for hosting the website of a third party which allegedly infringed plaintiff's trademark. As a result, the court denied defendant Mindspring's motion to dismiss, and allowed Gucci to proceed with its claim that, by hosting a third parties' site containing allegedly infringing materials, despite notice of the same, Mindspring was guilty of direct or contributory trademark infringement and false designation of origin in violation of the Lanham Act, as well as violations of state trademark and unfair competition statutes.

474 F. Supp. 2d 843, Case No. A-06-CA-983-SS (W.D. Texas, February 13, 2007) aff'd., No. 07-50345 (5th Cir., May 16, 2008).

Court dismisses negligence and gross negligence claims asserted against defendant Myspace, Inc. (“Myspace”) arising out of the alleged sexual assault of a minor made possible by her posting of a “user profile” on Myspace.com.  As a result of this posting, a male, age 19, made contact with the minor who falsely represented she was 18, obtained her telephone number and arranged a meeting at which she was allegedly sexually assaulted.  The Court held Myspace immunized from such claims by application of the Communications Decency Act, 47 U.S.C. Section 230, because, at bottom, plaintiffs’ claims sought to hold Myspace liable as a result of its role in the publication of the minor’s user profile.  The Court also held plaintiffs’ claims barred by Section 230(c)(2)(A), as they sought to hold Myspace liable for its purported negligence in failing to verify the minor’s age.  The minor was 13 at the time she posted a user profile in which she falsely claimed to be 18.  Myspace does not permit those below 14 to use its services.

The Court also dismissed plaintiffs’ negligence claims, which sought to hold Myspace liable for its purported negligent failure to institute measures designed to protect minors from sexual predators and to take appropriate steps to verify their age.  The Court held that, like Federal Express and other common carriers, Myspace owed no duty to the minor which could form the basis of such a claim.

Finally, the Court dismissed plaintiffs’ fraud and negligent misrepresentation claims as a result of plaintiffs’ failure to plead such claims with the requisite particularity.

502 F.Supp. 2d 719, Case No. 3:07 CV 604 (N.D. Ohio, August 22, 2007)

Court holds that the Communications Decency Act (“CDA”), 47 U.S.C. Section 230, immunizes operator of online adult dating service from claims arising out of a user’s false statement in her user-profile that she was over 18.  Relying on this profile, plaintiff met and had consensual sexual relations with a minor, for which he was subsequently arrested.  Plaintiff brought this suit, seeking redress.  Importantly, the contract between the parties expressly provided that SexSearch.com does not “assume any responsibility for verifying the accuracy of the information provided by other users of the Service.”  Because plaintiff sought to hold SexSearch.com, a provider of Interactive Computer Services, liable for its publication of content authored by another, his claims, whether couched as breach of contract, fraud or negligent misrepresentation, were barred by application of the CDA.  Plaintiff’s breach of contract claim similarly failed because SexSearch did not assume responsibility for verifying the age of users.

2007 WL 530156, Civ. Act. No. 06-319-JJF (D. Del. February 20, 2007)

The Court held that the First Amendment, and the guaranties afforded Google and Yahoo thereunder, barred claims seeking redress as a result of Google and Yahoo's refusal to run advertisements on their search engines they did not wish to run.  In reaching this result, the Court followed decisions that afforded newspapers similar First Amendment protections when challenges arose concerning their refusal to run advertisements they deemed objectionable.  As a result, the Court dismissed claims advanced by plaintiff arising out of the defendants' refusal to run his advertisements, including claims that the defendants defrauded him and engaged in deceptive business practices, violated his First Amendment rights, and failed to meet the duties imposed on those, like inn keepers, engaged in a public calling.

The Court also held that Google and Yahoo were immunized from such claims by the Communications Decency Act, 27 U.S.C. Section 230, which "bars '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, alter or postpone content.'" It should be noted that plaintiff was proceeding pro se.

2008 WL 618988, No. C 07-03967 MHP (N.D. Ca., March 4, 2008)

Court holds that the purported dispute resolution provisions contained in auction company’s online Terms and Conditions are unconscionable, and unenforceable against an individual dissatisfied with an auction in which she participated.  The dispute resolution provision mandated that the parties’ dispute be resolved in a binding proceeding before a representative of ‘In House Attorneys, P.C.’ in which each side was permitted only one hour to present their case, and could not call fact or expert witnesses nor be represented by counsel. 

As a result, the Court allowed plaintiff to proceed with claims against the defendant Hot Jewelry Auctions.com - who ran the auction - grounded on claims that defendant engaged in ‘shill bidding.’ 

Plaintiff was also allowed to proceed with claims against eBay as a result of her participation in this auction, via eBay’s Live Auction service.  In promoting this service, eBay claimed that “bidding on eBay Live Auctions is very safe.  All live auctions are run by reputable international auction houses, which are carefully screened by eBay before being authorized to sell to you.”  Notwithstanding the fact that eBay was responsible for this content, and derived a profit by promoting use of its Live Auction service, the Court held that it was immunized by application of the Communications Decency Act (“CDA”) from fraud and other claims arising out of so much of its promotional materials that advised consumers that eBay ‘carefully screened’ the auction houses allowed to participate in Live Auction.  The Court reasoned that to allow plaintiff to pursue such claims would expose eBay to “liabil[ity] for its exercise of a publisher’s traditional editorial functions” which is barred by the CDA.  As such, the Court barred plaintiff from pursuing claims that this representation was false because eBay allegedly did not ‘screen’ auction houses before permitting them to participate in such Live Auctions or because it knew that the auction house was engaged in illegal conduct – such as shill bidding – and failed to take appropriate steps in light thereof.   

The Court did permit plaintiff to proceed with claims arising out of eBay’s representation that such auctions were ‘safe,’ holding the same were not barred by application of the CDA because ‘eBay’s statements regarding safety affects and creates an expectation regarding the procedures and manner in which the auction is conducted and consequently goes beyond traditional editorial discretion.’  Nor were such claims barred by application of eBay’s Live Auction User agreement, which immunized eBay from any disputes a consumer might have with the auction house itself, as this dispute arose out of eBay’s own purported misconduct – namely misrepresenting that the auction was ‘safe.’  Because plaintiff had failed to plead with the requisite particularity that she relied on this statement in deciding to participate in the auction in question, however, her fraud claim was dismissed with leave to replead.

309 F.Supp.2d 446, Civ. 02-5164 (DRH) (WDW) (E.D.N.Y., Mar. 25, 2004)

Court holds that plaintiff, by clicking an "I accept" icon agreeing online to be bound by the Terms of Service governing use of an online discussion group set forth in a scrollable window, viewable ten lines at a time, was bound by the forum selection contained therein.  Finding such a clause enforceable, the Court dismissed a claim brought by plaintiff asserting that defendant Google breached this agreement, because this claim was not brought in the designated forum.

The Court also held that Section 230 of the Communications Decency Act ("CDA") immunized an ISP hosting an online discussion group from claims that its failure to remove objectionable content posted on the discussion group's web page gave rise to claims of tortious interference with contractual relations. 

Finally, the Court denied the motions of two additional defendants to dismiss the claims asserted against them for want of personal jurisdiction.  The Court held that the first defendant was subject to specific jurisdiction in New York because of its operation of a commercial website via which it sold $6000 of products a year to New York residents.  The second defendant was similarly subject to suit because he had entered into a contract with a New York company, which contract allegedly gave rise to the claims asserted against him.

Civ. No. 04-CV-3918 (E.D. Pa., March 10, 2006), affirmed -- F.3d – (3rd Cir., July 10, 2007).

District Court dismisses claims charging Google with direct copyright infringement as a result both of its archiving Usenet postings that contain excerpts of plaintiff’s copyrighted works, and its display of excerpts of plaintiff’s copyrighted website in search results.  The District Court holds that Google has not engaged in the requisite volitional conduct necessary to be held guilty of direct copyright infringement because such copying is a by-product of the automated operation of Google’s search engine and related technologies.  As such, Google’s acts are akin to a user’s use of its ISP to transmit infringing material to a third party, which do not give rise to direct infringement claims against the ISP.  On appeal, the Third Circuit affirmed the dismissal of Parker’s direct infringement claims, on the grounds that Google’s archiving of infringing Usenet postings lacked the requisite “volitional conduct.”

Relying on Field v. Google, (D. Nevada 2006), the District Court also dismisses direct copyright infringement claims arising out of Google’s presentation to users of “archival” copies of plaintiff’s website in search results denominated “cache.”  The District Court holds that Section 512(b) of the Digital Millennium Copyright Act (“DMCA”), applicable to copyright infringement claims arising out of “system caching,” bars such claims here.

The District Court also dismissed vicarious and contributory copyright infringement claims arising out of Google’s archiving of Usenet posts created by third parties that themselves allegedly infringe plaintiff’s copyright, both because Google lacks the requisite knowledge of such inadequately identified infringing activity, and because it does not derive sufficient direct financial benefit therefrom.  This decision too was affirmed by the Third Circuit on appeal.

The District Court further dismissed defamation, invasion of privacy and negligence claims advanced by plaintiff arising both out of Google’s archiving of Usenet posts authored by third parties that allegedly defamed plaintiff, as well as out of Google’s storage and display in its “cache” of a website that purportedly defamed plaintiff.  Such claims are barred by the immunity afforded Google by Section 230 of the Communications Decency Act (“CDA”), a decision affirmed on appeal.

Finally, the District Court dismissed Lanham Act claims brought against Google as a result of its alleged republication of a website operated by a third party titled “the Official Roy Gordon FAQ.”  The District Court held that the third party was not violating the Lanham Act both because it was not using a mark in commerce as it was not selling anything on its site, and because consumers were not likely to be confused as to the origin of the site, given the criticism of plaintiff found thereon.  The Lanham Act claims against Google also failed because it was not a “moving force” or “active participant” in the creation of this site, or the alleged use thereon of plaintiff’s ‘mark.’  The Third Circuit affirmed the dismissal of the Lanham Act claims because of the absence of a likelihood of consumer confusion.  The Court also affirmed the dismissal of plaintiff’s trade disparagement claims because the statements at issue on the third party website were not made in the context of commercial advertising.

It should be noted that the plaintiff appeared pro se.  In addition, the Third Circuit’s opinion was denoted “Not Precedential.”

163 F. Supp. 2d 1069 (D.S.D., September 27, 2001)

Court holds that Section 230 of the Communications Decency Act ("CDA") bars plaintiffs from pursuing claims against Kinko's arising out of allegedly defamatory statements an unaffiliated third party made in an Internet chat room from a computer rented to him by Kinko's.  The CDA prevented plaintiffs from pursuing claims that Kinko's aided and abetted both the third party's defamation of, and interference with plaintiffs' prospective business relationships by making the offending statements, as well as claims that Kinko's negligently failed to keep appropriate records of the use of its rented computers, and destroyed evidence of the same.

488 F.3d 1102, No. 04-57143 (9th Cir., March 29, 2007) cert. denied, 128 S.Ct. 709 (2007)

The Ninth Circuit allows Perfect 10 to pursue copyright infringement claims against defendants, who provide web hosting and credit card billing services, arising out of the unauthorized posting on the web by their third party customers of “adult” images in which Perfect 10 holds copyrights.  Questions of fact precluded a determination of whether defendants were immunized from monetary liability for such claims by the Digital Millennium Copyright Act (“DMCA”).  Such immunity extends only to service providers who “reasonably implement” a policy for terminating those of their customers that repeatedly infringe copyrights.  In considering this question, the Ninth Circuit held  courts should consider not only the manner in which the defendants responded to “take down” infringement notices sent by the plaintiff copyright holder, here Perfect 10, but also the manner in which they responded to similar notices from third party copyright holders.  Because the District Court failed to consider whether defendants terminated customers identified in such third party “take down” infringement notices, the Ninth Circuit could not determine whether defendants “reasonably implemented” a compliant DMCA policy, and thus whether they were entitled to DMCA immunity.  The case was accordingly remanded to the District Court for further consideration.

The Ninth Circuit held that defendants had no obligation to respond to the “take down” notices provided by Perfect 10, or take steps to prevent the infringing conduct alleged therein, due to Perfect 10’s failure to provide such notices under penalty of perjury.  Absent the sworn acknowledgement required under the DMCA that the complainant is both an authorized representative of the copyright owner, and has a good faith belief that the material at issue is unlicensed, the service provider has no obligation to act upon the notice. 

Nor, held the Ninth Circuit, were defendants obligated to take action against purported “red flag” sites defendants serviced, which included sites that purported without authorization to provide users with passwords to access plaintiff’s materials, or other websites bearing names such as “stolencelebritypics.com” or “illegal.net.”   The DMCA does not impose on service providers the obligation to conduct an affirmative investigation into the bona fides of such sites.  To qualify as a “red flag” site that imposes an obligation on a service provider to act, held the Ninth Circuit “it … need[s] to be apparent that the website instructed or enabled users to infringe another’s copyright.”

The Ninth Circuit allowed Perfect 10 to pursue direct copyright infringement claims against the defendants as a result of the posting of infringing images on hornybees.com.  The court held that sufficient evidence of defendants’ direct involvement in the operation of that site was presented to survive a motion for summary judgment.

Finally, the Ninth Circuit held that the Communications Decency Act immunized defendants from the unfair competition, false advertising and right of publicity claims advanced by Perfect 10.

Case No. 46791-3-I, 31 P.3d 37 (Wash. Ct. App., September 17, 2001)

Court holds that Section 230 of the Communications Decency Act ("CDA") immunizes Amazon.com from claims of breach of contract, negligent misrepresentation and tortious interference brought by plaintiff as a result of negative statements posted by third parties on Amazon.com's web site, and Amazon's failure to remove them in alleged violation of Amazon's guidelines governing such postings.  Section 230 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 Court held that Amazon satisfied each of the elements necessary for protection under this statute.  First, Amazon was a provider of "interactive computer services" entitled to avail itself of the protections afforded by the statute because it operated a web site on which third parties could post comments, which Amazon made available to others.  Second, the content in question was provided by third parties, and not Amazon, despite Amazon's right to edit or remove the same.  And lastly, Amazon was immunized from the claims in question because each premised Amazon's liability on its failure to remove offending content originated by others, an editorial function for which the statute was intended to provide protection.

2000 WL 1705637, Civ. No. 305666 (Sup. Ct. Ca., November 7, 2000)

Court holds that Section 230 of the Communications Decency Act ("CDA") renders Ebay immune from a suit charging that the use by third parties of Ebay's web site to sell "bootleg" musical recordings violates Cal. Bus. and Professions Code Section 17200.

478 F.3d 413, No. 06-1826 (1st Cir., February 23, 2007)

Court dismisses cyberstalking and security law claims advanced by plaintiffs under Florida state law against defendant Lycos, holding such claims barred by the immunity afforded Lycos under Section 230 of the Communications Decency Act (“CDA”).  Such claims arose out of statements critical of plaintiff Universal Communication Systems (“UCS”) and its CEO, Michael Zwebner, that were posted by third parties on a message board found on a website operated by Lycos at the domain Raging Bull.com  Plaintiffs claimed that defendants, including Lycos, were involved in a scheme to manipulate plaintiff’s stock price.  Plaintiffs claimed that defendants shorted UCS stock, and then posted derogatory comments on RagingBull.com in an attempt to drive the stock price down.  Such a claim, held the court, sought to hold Lycos liable for its role in the publication of these statements, which were authored by third parties, and as such was barred by operation of the CDA.  The cyberstalking claim was similarly barred because the act on which such claim rested was the publication of derogatory statements on the RagingBull.com message board authored by third parties.  As such, this claim too, sought to hold Lycos liable for its role in the publication of such statements, and was barred by application of the CDA. 

The court also dismissed federal cyberstalking claims asserted by plaintiffs against Lycos under 47 USC Section 223, holding that this statute did not create a private right of action for a civil suit.

Finally, the Court dismissed trademark dilution claims advanced by plaintiffs under Florida state law.  These claims were premised on the use of UCS’ trademark as the name for a message board on Raging Bull.com at which third parties posted statements critical of plaintiffs.  The Court held that, despite the fact that the message boards contained advertising, such a use did not constitute the requisite use in commerce of plaintiffs’ mark.  In addition, such use of plaintiffs’ mark to describe a message board that contained statements about plaintiffs was not actionable under the dilution act.

Case No. 2:04-cv-47-FtM-34SPC (M.D. Fla., February 15, 2008)

In the latest chapter of this long running dispute, the District Court holds that the Communications Decency Act, 47 USC Section 230, immunizes defendants from defamation claims arising out of the posting on their site – The Rip-Off Report - of allegedly defamatory statements about plaintiff that were allegedly authored by third parties.  In reaching this result, the Court rejected plaintiff’s contention that defendants were sufficiently involved in the creation of the posts at issue to be denied CDA immunity because they offered such third party posters the opportunity to categorize their reports in categories such as ‘con artists’, ‘corrupt companies’ and ‘false TV advertisements.’  The Court further held that plaintiff had failed to submit evidence sufficient to establish that defendants were involved in authoring the particular defamatory statements at issue so as to lose the immunity offered by the CDA.

No. 06-11888 (11th Circuit, August 1, 2006)

Eleventh Circuit holds that plaintiff's defamation claims against operators of consumer complaint sites arising out of the posting on those sites of allegedly defamatory complaints purportedly authored by third parties is sufficient to survive a motion to dismiss predicated on the immunity afforded the operators of interactive computer services under the Communications Decency Act ("CDA").  The complaint alleged that defendants edited consumer complaints to include words such as "ripoff" and "scam", and fabricated others.  The ultimate resolution of defendants' entitlement to immunity for their involvement in the publication of the posts at issue will have to await the trial of this matter.

As a result of this determination, the Eleventh Circuit reversed the decision of the District Court, which had dismissed the action for want of personal jurisdiction.  The lower court's decision was grounded on its determination that no tort was committed by defendants in Florida, due to the application of the CDA.   The Eleventh Circuit rejected this determination, and remanded the matter to the District Court to determine whether the Court could appropriately exercise personal jurisdiction over the defendants consistent with the strictures of the Due Process clause of the United States Constitution.

Case No. C07-0807-JCC (W.D. Wash., August 28, 2007)

Court holds that Section 230 of the Communications Decency Act (“CDA”) immunizes distributor of anti-virus and security software from claims of tortuous interference with contract, trade libel and unjust enrichment arising out of its distribution of software that labels plaintiff Zango’s software as malware, and enables a user to block or disable it.  Zango provides consumers free access to online videos, games and music in exchange for their agreement to the display of sponsors’ advertisements.  Notably, the Court holds defendant entitled to such immunity notwithstanding claims that it acted in bad faith when it so labeled plaintiff’s software.  According to the Court, ‘good faith’ is not a prerequisite to immunity under section 230(c)(2)(b) of the CDA.  All that is required is that a provider of an “interactive computer service” take “action  … to enable or make available to … others the technical means to restrict access to” material  “the provider or user considers … objectionable,” a standard defendant met.

The Court also held that it could exercise personal jurisdiction over the non-resident defendant in Washington as a result of its sale of software products to Washington residents which allegedly caused plaintiff injury in the forum.

958 F. Supp. 1124 (E.D. Va. March 21, 1997)(Ellis, J.) aff'd. 129 F. 3d 327 (4th Cir. Nov. 12, 1997), cert. denied, 524 US 937 (1998)

The CDA preempts a state common law distributor liability cause of action against an interactive computer service provider arising from that provider's allegedy negligent distribution of defamatory material provided via its electronic bulletin board. Under CDA section 230 (c)(i), information service providers are granted imunity from such claims. This immunity is retroactive, and applicable to plaintiff's claim, brought after the enactment of the CDA, even though the events giving rise to his claim were completed before the CDA became effective.

Quick Hits

Thais Cardoso Almeida v. Amazon.com, Inc.
456 F.3d 1316, No. 04-15341 (11th Cir., July 18, 2006).

Eleventh Circuit holds that Amazon.com’s display of a book cover that contains an unauthorized photograph of plaintiff on a product detail webpage used to promote Amazon.com’s sale of the book is not a commercial use of plaintiff’s image under Florida’s right of publicity statute – Fla. Stat. 540.08 - and hence is not actionable thereunder.   As such, the Eleventh Circuit affirmed, on different grounds, the District Court’s grant of summary judgment to Amazon.com, and dismissed plaintiff’s statutory right of publicity claim arising out of such unauthorized display.  The Court’s decision was grounded on its determination that, to be actionable under Section 540.08, plaintiff’s image must be used to ‘directly promote’ the sale of a product.  Because Amazon.com’s use of the book cover containing plaintiff’s image was ‘merely incidental to, and customary for, the business of internet book sales’ it was not an actionable commercial use of that image within the meaning of the statute.   Said the Court:

Amazon provides its online customers with a searchable book database with links to product detail pages for each book in its database.  Each product detail page provides the book’s cover image, the publisher’s description of the book, and in many instances editorial and customer content.  From the product detail page, customers may link to an order placement page, where they may complete their purchase and specify the shipping method.  In this manner, Amazon’s role as an internet bookseller closely parallels that of a traditional bookseller.  Because internet customers are unable to browse through shelves of books and observe the actual book cover photos and publisher content, Amazon replicates the bookstore experience by providing its customers with online cover images and publisher book descriptions. …

*                                         *                                                       *

[W]e find that, as a matter of business practice, Amazon’s use of book cover images closely simulates a customer’s experience browsing book covers in a traditional book store.  Thus, it is clear that Amazon’s use of book cover images is not an endorsement or promotion of any product or service, but is merely incidental to, and customary for, the business of internet book sales. …

*                                          *                                                       *

Under the allegations of Almeida’s complaint, we discern no set of facts by which an internet retailer such as Amazon, which functions as the internet equivalent to a traditional bookseller, would be liable for displaying content that is incidental to book sales, such as providing customers with access to a book’s cover image and publisher’s description of the book’s content.  Accordingly, we affirm the district court’s grant of summary judgment as to Amazon’s right of publicity claim, but we do so on the ground that Amazon did not use Almeida’s image for the purpose of directly promoting a product or service in violation of section 540.08

The Court spent much of its opinion discussing, without deciding, whether the Communications Decency Act barred plaintiff from pursuing the instant right of publicity claim against Amazon.  More particularly, the Court grappled with the question of whether the statute’s ‘intellectual property law’ exception, found in Section 230(e)(2), permitted plaintiff to pursue a right of publicity claim on the ground that such was in fact an intellectual property claim within the meaning of the statute.  This section provides that “nothing in [section 230 of the CDA] shall be construed to limit or expand any law pertaining to intellectual property.”  Because the Court ultimately found that plaintiff could not sustain her right of publicity claim on the merits, it did not reach this question.

Finally, the Eleventh Circuit affirmed the dismissal of plaintiff’s civil theft claim, finding that plaintiff had failed to submit evidence sufficient to establish that Amazon acted with the requisite ‘felonious intent’ when it purportedly misappropriate plaintiff’s property – namely her image – for its own use to promote its sale of books.  The Court held that there was no evidence that Amazon was aware when it posted the book cover in question on its website that the publisher was not authorized to use plaintiff’s image on the book’s cover.  When plaintiff contacted Amazon and so informed it, Amazon promptly removed the book cover from its site.

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Robert Anthony v. Yahoo! Inc.
421 F.Supp.2d 1257 (N.D. Ca. March 17, 2006)

Court holds that Communications Decency Act does not bar fraud and negligent misrepresentation claims advanced against Yahoo as a result of its alleged creation of false user profiles.  These false user profiles were allegedly included in online dating services Yahoo operates to cause users such as plaintiff to sign-up for, or renew their subscriptions to, the service.   The Court further held that the Communications Decency Act did not bar claims that asserted that Yahoo falsely represented to subscribers that various expired user profiles were in fact still current in an effort to cause them to continue their subscriptions.  Said the Court:

Anthony alleges that Yahoo creates false profiles, not merely fails to delete them. ... In addition, Anthony claims that Yahoo sends users false profiles for the purpose of luring them into renewing their subscriptions. ... No case of which this court is aware has immunized a defendant from allegations that it created tortious content. ... If, as Anthony claims, Yahoo manufactured false profiles, then it is an 'information content provider' itself and the CDA does not shield it from tort liability.  In addition, the CDA does not defeat Anthony's allegations that Yahoo sent 'profiles of actual legitimate former subscribers whose subscriptions had expired and who were no longer members of the service, to current members of the service.  Admittedly, third parties created there profiles.  Nevertheless, the CDA only entitles Yahoo not to be 'the publisher or speaker' of the profiles.  It does not absolve Yahoo from liability for any accompanying misrepresentations.  Because Anthony posits that Yahoo's manner of presenting the profiles - not the underlying profiles themselves - constitute fraud, the CDA does not apply.

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Anthony DiMeo III v. Tucker Max
No. 06-3171 (3rd Cir., September 19, 2007).

Affirming the decision of the court below, the Third Circuit holds that plaintiff’s claim for defamation, arising out of the posting of derogatory comments authored by third parties about plaintiff on a message board operated by the defendant, were barred by application of the Communications Decency Act, 47 U.S.C. Section 230.

To qualify for the statute’s protections, the defendant must be a “provider or user of an interactive computer service” and the claim must seek to treat him as “the publisher or speaker” of content “provided by another information content provider.”  Such, held the Third Circuit, was the case here.  By making available message boards on his website, Max was a provider of an interactive computer service.  Said the Court: “Max’s website is an interactive computer service because it enables computer access by multiple users to a computer server.”  Similarly, because the complaint did not allege that Max himself was the author of the offending posts at issue, they were content provided by another information content provider.  And finally, by asserting a defamation claim against Max, plaintiff sought to hold him liable as the publisher of this content.  Having made the showing necessary for immunity under Section 230 of the CDA, the Third Circuit affirmed the dismissal of plaintiff’s defamation claim.

The Third Circuit also affirmed the district court’s denial of plaintiff’s motion for leave to amend his complaint to assert claims for intentional infliction of emotional distress, and RICO violations, on the grounds of futility.  The former failed because the CDA afforded Max immunity from such claims, which, like the defamation claims, arose out of the posting by third party of offensive comments on a message board operated by Max.  The later failed as a result of plaintiff’s failure to allege the commission of any of the requisite criminal predicate acts.

It should be noted that the Third Circuit denoted its opinion non-precedential.

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Johnny Doe v. Mark Bates and Yahoo, Inc.
No. 5:05-CV-91-DF-CMC (E.D. Tex., December 27, 2006).

Court holds CDA Section 230 immunizes Yahoo from civil liability arising out of its hosting of an online ‘e-group’ named ‘Candyman’ on which illegal images depicting child pornography were exchanged.  The co-defendant, Mark Bates, was convicted for his involvement as the moderator of this online forum.  Plaintiff brought claims under 18 U.S.C. Section 2252A, which creates a private right of action for those aggrieved by a violation of 18 U.S.C. Section 2252, a criminal statute that prohibits the dissemination of child pornography.  The Court, in a case of first impression, held that the CDA immunized Yahoo from such civil claims, as well as claims of negligence, negligence per se, intentional infliction of emotional distress, invasion of privacy and civil conspiracy, arising out of its hosting of this forum.  The Court reached this result notwithstanding the fact that 47 U.S.C. Section 230(e)(1), titled “no effect on criminal law,” provides “nothing in this section shall be construed to impair the enforcement of  … Chapter … 110 (relating to sexual exploitation of children) of Title 18, or any other Federal Criminal Statute.”  Said the Court:

while the facts of a child pornography case such as this one may be highly offensive, Congress has decided that the parties to be punished and deterred are not the internet service providers but rather those who created and posted the illegal material, such as defendant Mark Bates, the moderator of the ‘Candyman’ e-group.

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e360Insight, LLC v. Comcast Corp.
No. 08-340, 2008 U.S. Dist. LEXIS 29287 (N.D. Ill. Apr. 10, 2008).

Court holds that the ‘Good Samaritan’ provisions of the Communications Decency Act (“CDA”), 47 U.S.C. Section 230(c)(2), immunize Internet Service Providers such as defendant Comcast from ‘good faith’ actions taken to block email marketers from sending email solicitations to users of the ISP’s services.  Plaintiff e360Insight brought this action in response to actions taken by Comcast to block it from sending email solicitations to Comcast customers.  Under the CDA, Comcast is entitled to immunity for “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be … objectionable, whether or not such material is constitutionally protected …”.  230(c)(2)(A).  Thus, to be entitled to immunity, the ISP must show both that the materials it blocked are 'objectionable' and that it acted in good faith in blocking them.  The Court applied a subjective standard in determining whether the emails in question were objectionable and hence subject to blocking under the statute – i.e. the materials are objectionable if Comcast believes them to be objectionable.  Importantly, it did not matter if the emails complied with CAN-SPAM.  Said the Court:

compliance with CAN-SPAM, Congress decreed, does not evict the right of the provider to make its own good faith judgment to block mailings. …  Under the law, a mistaken choice to block, if made in good faith, cannot be the basis for liability under federal or state law.  To force a provider like Comcast to litigate the question of whether what it blocked was or was not spam would render Section 230(c)(2) nearly meaningless. 

Because Comcast believed the emails at issue were objectionable, and because plaintiff failed to adequately plead that Comcast did not act in good faith when it made its decision to block plaintiff’s emails, Comcast was entitled to immunity, and the Court dismissed the claims plaintiff asserted against it for violation of the Computer Fraud and Abuse Act and of plaintiff’s rights under the First Amendment, as well as for tortuous interference with prospective economic advantage and violation of the Illinois Consumer Fraud Act.

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David Prickett, et al. v. InfoUSA, Inc., et al.
2006 WL 887431, Case No. 4:05-CV-10 (E.D. Texas, March 29, 2006).

Court holds that the Communications Decency Act immunizes InfoUSA, a provider of proprietary databases providing information concerning individuals and businesses, from suit seeking to hold it liable for false listings about plaintiffs provided to it by third parties, which InfoUSA included in a database it subsequently licensed for use to others.  The Court reached this result notwithstanding InfoUSA's representation that it provides "the utmost quality information" and "call[s] every business to verify the information, so you can be assured of the most current and accurate listings."  Plaintiffs could not pursue a claim based on the alleged falsity of this representation, because to do so would necessarily treat InfoUSA as a publisher of this information, which is prohibited by the Communications Decency Act.  Said the Court:

Additionally, the Plaintiffs argue that the Defendant operated as an information content provider because the defendant assures the accuracy of its listings via its verification process.  The Plaintiffs are presumably alleging that they were harmed by third party content and that the Defendant is liable for failing to verify the accuracy of the content.  'Any such claim by [the plaintiffs] necessarily treats the [defendant] as 'publisher' of the content and is therefore barred by Section 230.'  The plaintiffs' argument that they seek to hold the Defendant liable for its alleged failure to verify the accuracy of the listing does not remove this case from the immunity provided by Section 230.'

In this suit, plaintiffs claimed they were harassed by third parties who found the false information contained about them in defendant InfoUSA's database offensive.

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