Barnes v. Yahoo: Section 230 Does Not Insulate Online Service Provider From Contractual Liability

May 7, 2009

This is an interesting Section 230 decision that clarifies one of the many possible lines between enjoying Section 230 protection and losing it, namely what kinds of legal claims treat an interactive computer services as a “publisher or speaker” within the meaning of the statute and what kinds do not. It should also serve as a cautionary tale for online service providers including bloggers who allow comments.

Ms. Barnes’ ex-boyfriend is a bit of a douchebag. After they broke up, he created a fake personals ad for her on Yahoo and impersonated her on various online forums:

Barnes did not authorize her now former boyfriend to post the profiles, which is hardly surprising considering their content. The profiles contained nude photographs of Barnes and her boyfriend, taken without her knowledge, and some kind of open solicitation, whether express or implied is unclear, to engage in sexual intercourse. The ex-boyfriend then conducted discussions in Yahoo’s online “chat rooms,” posing as Barnes and directing male correspondents to the fraudulent profiles he had created. The profiles also included the addresses, real and electronic, and telephone number at Barnes’ place of employment. Before long, men whom Barnes did not know were peppering her office with emails, phone calls, and personal visits, all in the expectation of sex. (Op. at 5315-16)

Barnes demanded that Yahoo take the information down, but Yahoo was not very responsive — even though it had a policy providing for the removal of fake profiles if the complaining party provided a copy of her drivers’ license.

During the same period, a local news program was preparing to broadcast a report on the incident. A day before the initial air date of the broadcast, Yahoo broke its silence; its Director of Communications, a Ms. Osako, called Barnes and asked her
to fax directly the previous statements she had mailed. Ms. Osako 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.” Barnes claims to have relied on this statement and took no further action regarding the profiles and the trouble they had caused. Approximately two months passed without word from Yahoo, at which point Barnes filed this lawsuit against Yahoo in Oregon state court. Shortly thereafter, the profiles disappeared from Yahoo’s website, apparently never to return. (Op. at 5316)

This is where Yahoo messed up.

Barnes attempted to plead around Section 230 in a number of creative ways. She claimed that since Section 230 only relieved online service providers of being held to be the publisher of defamatory material, that did not relieve Yahoo of the obligation to take down allegedly defamatory material. Barnes then tried to argue that Section 230 only applies to websites that try and remove some objectionable material.

Leaving no stone unturned, Barnes reminds us that the statutory purpose of the Amendment is to encourage websites affirmatively to police themselves, not to provide an excuse for doing nothing. This argument from statutory purpose has more force to it, because section 230(c) is, after all, captioned “Protection for ‘good samaritan’ blocking and screening of offensive material.” Cf. Roommates, 521 F.3d at 1163-64. It would indeed be strange for a provision so captioned to provide equal protection as between internet service providers who do nothing and those who attempt to block and screen offensive material. As the Seventh Circuit has recognized, ifsection (c) did provide equal protection, then “[internet service providers] may be expected to take the do-nothing option and enjoy immunity” because “precautions are costly.” GTE Corp., 347 F.3d at 660. (Op. at 5328-29)

Although none of her key arguments made it around Section 230, she did have one persuasive theory: Breach of contract.

As noted above, Yahoo engaged in discussions with Barnes and promised to remove the material. However, Yahoo failed to do so.

Subsection 230(c)(1) creates a baseline rule: no liability for publishing or speaking the content of other information service providers. Insofar as Yahoo made a promise with the constructive intent that it be enforceable, it has implicitly agreed to an alteration in such baseline. Therefore, we conclude that, insofar as Barnes alleges a breach of contract claim under the theory of promissory estoppel, subsection 230(c)(1) of the Act does not preclude her cause of action. (Op. at 5335)

The moral of the story? If you are an online service provider (including a blogger who allows comments on your blog) and someone calls you up or emails you and asks that you remove objectionable material, you have two choices: 1) You can refuse to do so and rest assured that Section 230 will likely provide you with immunity; or, 2) If you say you will remove the material, follow through on your promise to do so, because once you say you will, you have modified the “baseline rule” of Section 230.

When “Support” is Really a “Tantrum”

May 3, 2009

Facts are sexist!!!

Ann Bartow posted a piece over at Feminist Law Professors that started out seeming to be a rather nice bit supporting Prof. Mark Lemley, one of the attorneys representing Brittan Heller and Heide Iravani in the AutoAdmit suit, — and a defendant in Anthony Ciolli’s countersuit — a case that the Eastern District of Pennsylvania has allowed to go forward — in part.

Bartow writes:

Mark Lemley got involved with this case, in my opinion, because he is a progressive, good-hearted, moral and generous person. (source)

I can’t be sure why Lemley got involved in that case. I directly asked him that question, and he didn’t answer me. Nevertheless, I believe that Prof. Bartow’s assessment of him is accurate. He does seem like a genuinely good-hearted, generous, and moral person, and I have never heard a single person say otherwise. His involvement in the case did puzzle me, which is why I asked him about it. While his silence was disappointing, I can understand that for liability reasons, it was better that he not reply.

I suspect that he got bamboozled into the case — that he wasn’t told the whole truth until he was already waist deep in the muck, and then it was too late to back out gracefully. Accordingly, I think it is kind of nice that Bartow supported Prof. Lemley. Hell, the man was one of my heroes before I saw the Auto Admit case with his name on it. I still reverently respect him and personally like him, and a part of me hopes that he can disprove the allegations against him. However, if the allegations do stick, like him or not, adults must answer for their actions.

Regardless of Lemley’s motivations, Prof. Bartow’s piece is not at all about supporting Lemley. Behind all of her compliments for him, this post is just Bartow’s latest anti-free-speech diatribe (see commentary on a previous one here), further demonstrating that second-wave feminists have turned the Auto Admit case into their cause-celebre. They just can’t wrap their heads around the fact that sometimes, occasionally, the poor female victim(s) can lie, be spiteful, be unethical, be misled, or just plain wrong. Or, if they can wrap their heads around it, they would rather set themselves on fire than admit it.

Bartow writes:

[I]t seems pretty obvious to me why Anthony Ciolli was named in the original law suit. ISP immunity under Section 230 does not apply to the authors of contested material. Ciolli was clearly posting comments at the AutoAdmit discussion board under at least one pseudonym, “Great Teacher Onizuka.” The plaintiffs had every reason to suspect that he was posting under others as well, and that he could have been personally responsible (and liable) for some of the actionable material. They could not rule him out without conducting discovery in the context of litigation, and they could not do a thorough investigation of the matter unless Ciolli was a named party. Once the plaintiffs knew either that Ciolli was not a bad actor or that they would be unable to prove that he was a bad actor, they dismissed him. Any competent lawyer would have done the same thing. This is Civil Procedure 101. (emphasis added)

Ciolli was “clearly” posting under a pseudonym. Was he? Was it clear? Was it about the girls? Was it negative? Then why include this?

Lets teach Prof. Bartow a little bit about Civil Procedure. Or, better yet, lets teach everyone else about it, because I can’t see Bartow getting off her shrill perch — but I’d rather not let people in the blawgosphere be misled.

Even if Ciolli were not a defendant, the plaintiffs would have had every right to subpoena and depose any person who may have possessed relevant information. In fact, after Ciolli was dropped from the case, Heller and Iravani’s lawyers did, indeed, take his deposition to make sure that they did not leave any stones unturned. Any competent law professor would know that this was not only possible, but proper. Any competent blogger would have at least read Ciolli’s complaint to find that fact. But, lets not let a pesky thing like the facts get in the way of a Dworkin wanna-be’s tirade.

If the reason Heller & Iravani sued Ciolli was because he “might have” posted under multiple personas, then why did they not name each and every moniker on Auto Admit? Everyone on Auto Admit could have had multiple monikers. In fact, law professor Brian Leiter is rumored to have posted on Auto Admit under the name “Tokyo Rose.” I posted on AutoAdmit under my real name. Why not name me? By Bartow’s post-hoc rationalization, Leiter and I both could have been one of the defendants until we were ruled out in discovery, no? Furthermore, if there was ever a suspicion that Ciolli used another moniker, then why wasn’t that allegation ever made, on information and belief, in the complaint?

I’ll tell you why not, because the Plaintiffs’ own published statements contradict Bartow’s made up “facts.” The “theory” that Mr. Ciolli was another pseudonymous poster never arose until Heller & Iravani’s lawyers started grasping for a way out of possible sanctions, and their cheerleaders started to see their lovely pre-packaged daydream unravel.

A competent attorney does not file suit against each and every person who could hypothetically be a defendant. (As in if the facts and the law were stretched like a goatse about to snap). If that were the case, then every lawsuit would name hundreds of defendants, including people who did nothing wrong, and let discovery sort out who was actually liable. Meanwhile hundreds of additional defendants would need to report that they were defendants in civil actions and live under the cloud of litigation while plaintiffs took their own sweet time figuring out if they had sued the right person. No, it doesn’t work that way and Professor Bartow should know that.

Bartow then throws out her own “theory.”

My theory on why Ciolli is suing Lemley and the plaintiffs? To scare away other potential plaintiffs, and to discourage other lawyers from representing them.

To scare other potential plaintiffs who might bring a lawsuit against him? I should hope so, since pages 23-29 of this decision make it pretty clear that Ciolli has brought a proper claim for wrongful initiation of civil proceedings against Iravani and her attorneys. Ethics and judgment are supposed to discourage lawyers from bringing baseless claims. It is a shame when someone must file suit in order to “scare” potential plaintiffs from abusing the courts and filing frivolous claims for an improper purpose.

The AutoAdmit case has been shown to be more of a shakedown, legal extortion, than a suit calculated to vindicate any real legal interests. While some might point out that over-inclusiveness and scattershot complaints are more common than I might like, the fact is that Bartow’s post is less about backing a nice guy – and more of a way of backpedaling and acting as an apologist for misuse of the legal system. Ethics matter, and the reason that so many lawyers miss that lesson is professors like this seem to disagree.

Ciolli had some pretty damning evidence to present in his case. Unfortunately for him, the E.D. Pa. ruled that it was excluded by FRE 408. Lets sit back and see if Ciolli’s lawyer in that case can find an alternate way of getting the information before the court. If he can, I’d imagine that Ciolli will prevail — which will probably give Bartow an excuse to blame it on the “patriarchy,” because in Bartow-world, the only women who are ever wrong or ill-motivated are those who disagree with her.

Stubhub not Protected by Section 230

April 24, 2009

Section 230 is mighty strong medicine. However, if an online service provider actively participates in the underlying conduct, its protections dry up. See StubHub Unsuccesfully Invokes Section 230 Defense in Lawsuit by New England Patriots.

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Another Section 230 Victory

January 19, 2009

When will plaintiffs learn? See Goldman.

Gators Attack Juicy Campus

July 31, 2008

University of Florida Student Body President, Kevin Riley, and Chief Information Officer, Marc Hoit, recently issued this letter to the Florida Attorney General asking that the Florida Office of the Attorney General launch an investigation into Juicy Campus, the well-known gossip site. They did not elaborate on what kind of investigation they expect the state to launch.

I agree that contains terribly defamatory posts about many people. However, if you are gullible enough to believe anything you read on, your opinion cannot be all that influential. I also think that asking the government to launch an investigation because a few thin-skinned people have had their feelings hurt is asking for a level of governmental paternalism that used to (in my day) piss college students off. Kids these days…

The letter reads:

“[JuicyCampus] is used to anonymously post gossip regarding students. The anonymity, and the guarantee that information about a user’s identity will not be tracked, provided by JuicyCampus emboldens users to post false and damaging statements about others. These posts often amount to cyberbullying and raise issues of public welfare and safety.” (source)

Mr. Riley and Mr. Hoit, in their zeal to go crying to the teacher, seem to have neglected to do their homework. is protected from liability for the actions of its users by 47 U.S.C. § 230, which was passed in order to ensure that online businesses would not have to grind to a halt while they police their users’ actions. The phone company is under no obligation to make sure you don’t use your phone to set up a contract killing, a drug deal, or to make sure you don’t say nasty things about your co-workers. Similarly, internet service providers should receive the same laissez-faire treatement, lest censorship become the bastard child of technology. See Robert Corn-Revere, New Technology and the First Amendment: Breaking The Cycle of Repression, 17 Hastings Comm. & Ent. L.J. 247, 264 (1994). Naturally, the internet =/= phone lines. However, unless the website in question actually assists in the production of the offending material, it is not liable. See, e.g., Craigslist Wins Section 230 Case. The much-misunderstood Fair Housing Council v. decision did not change that rule, but rather reinforced it. In that case, provided pull-down menus that guided users to create potentially discriminatory housing postings. Therefore, they lost their Section 230 immunity. Craigslist is, like JuicyCampus, free-form and fully protected.

Despite their claim that JuicyCampus raises issues of public welfare and safety, the signatories of this foolish missive appear to be clueless as to how JuicyCampus has cooperated with the authorities in the past.

In situations where Juicy Campus posts have crossed the boundary from nuisance or harassment to outright threat, the site has cooperated with authorities. In December, Carlos Huerta, a senior at Loyola Marymount University, in Los Angeles, posted a message on Juicy Campus alleging that he would start a shooting spree on campus. At the request of the police, Mr. Ivester traced the threat to Mr. Huerta, who was arrested and released without charges. (source)

I agree JuicyCampus most likely hurts a few people’s feelings. There may even be an anecdote or two that raises the complaints beyond mere alligator tears. However, the vast majority of the content on JuicyCampus is innocuous or just plain silly. It seems to me that the only purpose served by this letter was a desire to appear to care about a non-problem.

I have been to bathrooms at the University of Florida where I saw defamatory material written on the wall. No investigation was launched – at least not at the level of the state Attorney General – and nobody called for the building to be torn down. The logic of blaming the forum for the actions of the participants is as illogical as closing a public park because someone held up a defamatory sign.

Section 230 is an example of Congress getting an issue right — internet commerce must be allowed to grow, even if that growth causes a few stretch marks.

Kevin Grierson said:

I don’t think it’s the job of the law to limit the options of law-abiding citizens and businesses because of the potential harm to the Darwin-Award-winning segment of our society.

Similarly, it is not the job of the state to intervene in every example of hurt feelings – even if it is a widespread issue. The next time you take a flight, look at the immense hassle you have to go through. Flying in America is an experience that is a pain in the ass because we passed rules designed to affect the behavior of a few of the worst people in society. Then, we handed the rulebook to dumbest nitwits we could find. Do you really want the government passing rules and launching investigations that may wind up placing the same kind of restrictions on the greatest tool for mass communication ever invented? I sure don’t.

If a student feels aggrieved by the content on Juicy Campus, he or she has the right to file a private cause of action. If the speech rises to the level of a true threat, the police will get involved. Asking the government to launch an investigation into a public forum because of the actions of a minority of participants in that forum is an act of abject foolishness.

There are some areas where the government should never venture – including criminal investigations of activities involving free speech. Fortunately for us, I do not believe that Bill McCollum will take any action. Mr. McCollum, a die-hard Republican, has an excellent record when it comes to free speech issues. McCollum has tirelessly pursued child predators and human traffickers, but he has courageously resisted calls from social conservatives to investigate and prosecute mainstream pornography. McCollum understands the meaning of being a conservative, and is not likely to intervene in a situation that could be cured either through the marketplace of ideas or over-cured by government intervention.

I don’t mind Mr. Riley or Mr. Holt raising the alarm about Juicy Campus. They were well within their First Amendment rights to express their opinion, and to petition the government to take any steps they liked. They crossed the line by purporting to speak for the tens of thousands of students at the University of Florida. I called McCollum’s office, which confirmed that there has been exactly ONE complaint about Juicy Campus by University of Florida students — and that was launched by the student body president himself. Who were these two ass-hats speaking for but themselves?

I encourage Mr. Riley and Mr. Holt to do their homework before they try to start a government investigation into people saying naughty things about one another. I have always found the University of Florida to be a shockingly intellectually complacent institution (and yes, I am a Gator), but this is a new low. Had this been a less enlightened attorney general, their foolish letter very well could have caused real damage to free speech on the Internet.

AK47 Comes Back Swinging

May 11, 2008

AutoAdmit pseudonymous defendant “AK47” has made a few errors in judgment. First his statements on the AutoAdmit board. Bad judgment? Yes. Legally actionable? Probably not. But, that didn’t stop anyone from including him as a defendant.

Next error in judgment – this pro se motion to quash.

Back on February 28, I wrote:

My prediction — had Mr. AK47 written his motion a little more skillfully, he might have had a great chance. Unfortunately for him, the motion is so poorly drafted that it will take some charity on the Court’s part for it to fly. I hope that for the First Amendment’s sake, the judge is feeling the love.

It appears that my prayers were answered by the First Amendment gods, because Judge Droney took the very unusual measure of appointing pro bono counsel for AK47 – John R. Williams (who seems to be pretty bad ass).

Williams argued the Motion to Quash on May 5. As a result of Williams’ work at that hearing, Judge Droney ordered Plaintiffs counsel to brief him on whether the court has subject matter jurisdiction. As discussed here, the entire case could potentially unravel, depending on how the judge rules on the subject matter jurisdiction question.

Plaintiffs counsel responded with this memorandum. I am not very impressed. I’d have given it a D plus if it were submitted in one of my classes.

Today, AK47’s attorney really opened up a box of PWNAGE. If Mr. Williams is correct, then the plaintiffs made a pretty bad tactical blunder (as if filing this frivolous case wasn’t enough of a blunder).

First off, it seems that Mr. Williams found the same ironic quote authored by the Plaintiff’s counsel:

The plaintiffs’ lead attorney in this case has appropriately written that “[b]y mischaracterizing tort claims as copyright claims, plaintiffs seek to take advantage of a more favorable legal regime. This sort of gamesmanship is undesirable.” Lemle, “Rationalizing Internet Safe Harbors,” Stanford Public Law Working Paper No. 979836 (April 10, 2007), That, of course, is exactly what the plaintiffs have done here. The only basis for federal jurisdiction of this action is the plaintiffs’ claim that one of them, Doe I, “owns valid copyrights in her photographs and has registered these copyrights with the United States Copyright Office.” The plaintiffs now admit that Doe I has no such copyright at all. They argue, somewhat disingenuously, that this inaccurate claim was a mere “typographical error” and that another plaintiff in fact owns and has registered a copyright.


The Lemley-PWN aside, is Attorney Williams making too much hay out of a mere “typographical error?” Normally, I would say so. However, upon closer inspection of the argument, he seems to have a point. It seems that the plaintiffs have had multiple chances to fix the “error,” and only now raise it as a “typo.” Further inspection of the pleadings leads to the suggestion that perhaps it was not a typo at all.

Then comes the jurisdictional whup-ass.

The federal jurisdictional “hook” upon which the plaintiffs rely is gossamer thin in any event, as demonstrated by the fact that in their briefs opposing the motion to quash they do not even attempt to argue that they can win their copyright action. That it was manufactured specifically to allow the plaintiffs to get into federal court with their state law case can hardly be doubted, since the alleged copyright was not registered until a mere two days before this suit was filed, and it was registered by the plaintiffs’ attorney in this action. (source)

I don’t know if Judge Droney will simply toss this action – but he certainly seems to have adequate grounds to do so.

Read Williams’ memo here.

Guest Blawgger, Ross Kerr – Is the right to publicity a property right or a publicity right?

April 27, 2008

A few weeks ago, the District of New Hampshire decided that right of publicity claims were “intellectual property” claims, and thus such claims fell outside Section 230 immunity. See Gimme section 230 shelter – online dating pranks and CDA Immunity.

This got me wondering… how would Florida courts look at this issue? I asked my students to analyze it, and Mr. Kerr turned in a particularly blog-worthy analysis. Read it after the jump.

Read the rest of this entry »

Gimme section 230 shelter – online dating pranks and CDA Immunity

April 3, 2008

Creating a fake profile for one of your friends (or enemies) on an online dating site. Now who hasn’t done this, or thought about it? I’ve certainly been both perpetrator and victim of this kind of prank. Both times I thought it was funny.

However, it might not be so funny for the online dating site.

This week has been a big week for this issue in the federal courts. One one coast, a decision out of the federal district of New Hampshire poked a hole in Section 230 immunity for online dating and other social networking sites. On the other coast, a decision out of the 9th Circuit clarified an earlier online dating site prank case.

New Hampsire, Jane Doe v. Friendfinder Network

In a strange twist, the District of New Hampshire found that the website, could be held liable for a user’s creation of a fake profile. See Jane Doe v. Friendfinder Network, __ F.Supp.2d __ (D.N.H. 2008). (HT to Citizen Media Law Project)

In case anyone reading is unfamiliar with “Adult Friend Finder,” (AFF) it is not exactly the kind of online dating site that you are probably used to seeing. There is no Neil Clark Warren matching you with your soul mate. AFF is for people looking to get laid — NOW.

Someone with the username petra03755 created a profile for “Ms. Doe,” naturally without her permission. The profile identified her as seeking “Men or Women for Erotic Chat/E-mail/Phone Fantasies and Discreet Relationship.” The profile also provided Doe’s identifying characteristics and a nude photo that was supposed to be Ms. Doe.

The plaintiff alleges she had nothing to do with creating the profile, that she does not engage in the “promiscuous sexual lifestyle” or the “perverse” sexual activities it describes, and that the photograph does not depict her. Nevertheless, she claims that the biographical information and photo “reasonably identified” her as “petra03755” to people in her community. (source)

She apparently contacted AFF, and they took down the profile.

“As a result, when other members thereafter attempted to access the profile, the site displayed the message, “Sorry, this member has removed his/her profile.” The plaintiff asserts that this Message was itself false in communicating that she was a member of the service and that the profile had been hers in the first place. She further faults the defendants for doing nothing to inform other users that the profile “had in fact been bogus and false.”

The plaintiff sued under the following counts:

• “Invasion of Property/Intellectual Property Rights”(Count I);
• Defamation (Count II);
• “Intentional/Negligent/Reckless Conduct” (Count III);
• “Dangerous Instrumentality/Product” (Count IV);
• Intentional infliction of emotional distress (Count V);
• Violation of the New Hampshire Consumer Protection Act, N.H. Rev. Stat. Ann. § 358-A (Count VI);
• False designations in violation of the Lanham Act, 15 U.S.C. 1051 et seq. (Count VII); and
• “Willful and Wanton Conduct” (Count VIII).

Given that Section 230 provides immunity to online service providers who do not create the complained-of content, the court dismissed all but Count I. I am a bit surprised that sanctions were not imposed upon the plaintiff for bringing the other counts, as any idiot should know that.

But why wasn’t Count I dismissed?

The CDA provides immunity to a broad swath of claims, but it exempts intellectual property claims. “Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.” 47 U.S.C. § 230(e)(2). The 9th Circuit, in Perfect 10, Inc. v. CC Bill, LLC, 488 F.3d 1102 (9th Cir.) held that this meant federal intellectual property claims — not state law claims. However, the First Circuit noted in dicta that Section 230 contains no such limitation. See Universal Comm’n
Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 418 (1st Cir. 2007).

The Court held that since the plaintiff brought an invasion of privacy claim, one form of invasion of privacy is a “right of publicity” claim, therefore this portion of Count I should survive a motion to dismiss under Section 230.

I find the Court’s analysis of the state vs. federal law issue to be correct. Nothing in Section 230 limits CDA immunity to just federal intellectual property rights. However, I’m not so sure about the court’s decision that rights of publicity are “intellectual property.” Right to publicity smells more like a privacy right to me, and thus is a non intellectual property issue.

On the other hand, as a friend pointed out, although publicity rights derived from privacy rights, there are some reasons why publicity might be correctly considered to be a form of intellectual property. Publicity rights can be licensed, transferred, can survive death in some states (unlike straight-up privacy rights), etc.

Ultimately, I think that the privacy-property distinction is a fascinating question, and I hope that the First Circuit gets a chance to resolve that question.

The 9th Circuit: clarifies Carafano v. Metrosplash

There was a similar case out of the 9th Circuit (which was clarified by today’s decision) back in 2003. See Carafano v., Inc., 339 F.3d 1119 (9th Cir. 2003). In that case, an “unknown prankster” impersonated actress Christianne Carafano and created a fake profile for her on an online dating site. That profile included Carafano’s home number and address, and said that she was looking for an “unconventional liason.”

The 9th Circuit held that an online dating service could never be the “publisher” of a profile on its service. “[N]o [dating] profile has any content until a user actively creates it.” Id. at 1124. Accordingly, no online dating service could be held liable for a profile created by another person.

However, in Fair Housing Council v., __ F.3d __ (9th Cir. Apr. 3, 2008), the 9th Circuit receded from that language ever so slightly.

“[E]ven if the data are supplied by third parties, a website operator may still contribute to the content’s illegality and thus be liable as a developer. Providing immunity every time a website uses data initially obtained from third parties would eviscerate the exception to section 230 for “develop[ing]” unlawful content “in whole or in part.” 47 U.S.C. § 230(f)(3).

We believe a more plausible rationale for the unquestionably correct result in Carafano is this: The allegedly libelous content there—the false implication that Carafano was unchaste—was created and developed entirely by the malevolent user, without prompting or help from the website operator. To be sure, the website provided neutral tools, which the anonymous dastard used to publish the libel, but the website did absolutely nothing to encourage the posting of defamatory content—indeed, the defamatory posting was contrary to the website’s express policies. The claim against the website was, in effect, that it failed to review each user-created profile to ensure that it wasn’t defamatory. That is precisely the kind of activity for which Congress intended to grant absolution with the passage of section 230. With respect to the defamatory content, the website operator was merely a passive conduit and thus could not be held liable for failing to detect and remove it. (source)

What next?

The Carafano case makes sense, even as clarified by There is no absolute immunity for an online dating site, since there might be something that site did to induce the creation of the complained-of profile.

The Adult Friend Finder case only makes half-sense. I don’t see any support in Section 230 for the proposition that it only applies to federal intellectual property claims, and thus I agree with the District of New Hampshire on that one. On the other hand, I don’t agree with the proposition that right of publicity claims are “intellectual property” claims. In my opinion, they are privacy claims, and the First Circuit should overturn the District of New Hampshire’s decision, should AFF appeal.

Special thanks to Mike Heilbronner for pointing out the support for “publicity as intellectual property” points.

Craigslist Wins Section 230 Case

March 16, 2008

A den of racism?
Or a deep pocket?

There is much rejoicing on the internet today.

Some of the housing ads on Craigslist proclaim “NO MINORITIES” and “No children” — a violation (in some circumstances) of the Fair Housing Act.

So the Chicago Lawyers Committee for Civil Rights sued Craigslist for allowing the ads to be posted.

One of the ads to which the CLCFCR objected contains the phrase “Catholic Church and beautiful Buddhist Temple within one block”. Some of the others were actually blatantly (and disgustingly) discriminatory.

Judge Easterbrook wrote in his concise, precise, and wise opinion that Section 230 means what it says, no matter what any crybaby might want it to say.

What §230(c)(1) says is that an online information system must not “be treated as the publisher or speaker of any information provided by” someone else. Yet only in a capacity as publisher could craigslist be liable under §3604(c). It is not the author of the ads and could not be treated as the “speaker” of the posters’ words, given §230(a)(1). The Lawyers’ Committee responds that “nothing in §230’s text or history suggests that Congress meant to immunize an ISP from liability under the Fair Housing Act. In fact, Congress did not even remotely contemplate discriminatory housing advertisements when it passed §230.” That’s true enough, but the reason a legislature writes a general statute is to avoid any need to traipse through the United States Code and consider all potential sources of liability, one at a time. The question is not whether Congress gave any thought to the Fair Housing Act, but whether it excluded §3604(c) from the reach of §230(c)(1).

By mocking this case, I do not mean to imply that I have any issue with bringing lawsuits under the Fair Housing Act. Au contraire. Bigoted landlords who fall under (and run afoul of) the Act should be punished. The Act provides that newspapers can be punished for accepting bigoted ads. I am even okay with that.

By mocking the plaintiffs, I remain consistent with my policy of mocking those who practice law, yet fail to understand what Section 230 does — it recognizes that the internet could not function if every online service provider were forced to accept publisher liability for content posted by its users. That would be like making cities responsible for every word uttered on the public sidewalks.

Expecting every service provider to act as a private police/censorship force would certainly satisfy whiny anti-speech liberals, but it would mean that every single website and web forum would need to become PC police.

Ok, lets cut the plaintiffs some slack. From their statement on the case:

“We are pleased that the Seventh Circuit rejected the blanket immunity position of craigslist, the amici and the other circuits. While we are of course disappointed with the overall outcome of the case, we are gratified that the Court emphasized in the final paragraph of its decision that landlords and other housing providers who post discriminatory advertisements remain fully liable under the federal fair housing laws. (emphasis added)

I agree wholeheartedly with the emphasized text. But, even trying to impose that liability on Craigslist was sleazy and stupid. When I get cases like this (on the defense side, of course) I call up the other lawyer and say “have you considered how bad it would be for everyone if you won?

This is a good day for internet freedom.

Everybody dance now! *does the robot*

See Chicago Lawyers Committee for Civil Rights v. Craigslist, __ F.3d __(7th Cir. 2008).

The “Notary Internet”

March 8, 2008

I (along with anyone else who respects the Constitution) say that the best cure for bad speech is more speech, not censorship. However, I frequently hear a whiny retort to that: With the internet, things are different. There is some merit to that argument, since a lie can be spread worldwide in a mere click of a button – splaying falsehoods from Topeka to Taipei. Under those conditions, what is the victim of such a falsehood to do?

Jon Garfunkel makes a very good case for a fascinating way to combat this — and he doesn’t call for any ill-conceived new torts, nor does he call for a repeal to Section 230. Instead, Garfunkel seeks to harness the power of the free market to correct irregularities in the marketplace of ideas. He calls for a nonprofit to create a system whereby people who post information (especially responses to false information) under penalty of perjury.

There would also be a nominal fee (paid to the nonprofit) for filing notarized statements; they would be greater than zero, but less than court & legal fees. In addition, the system could begin to develop an arbitration process for handling the online torts of defamation and privacy exposure if the injured party does not want to pursue it in the courts.

The oath is accepted as a test for sworn truth because there are penalties for lying: the crime of perjury. It’s not so clear that frank truth has a similar correcting mechanism. Neither Wikileaks nor AutoAdmit (nor many other online communities of discussion) appear to have any regular processes for evaluating the claims made on their site for truthfulness; everything is to be taken with the proverbial grain of salt. It’s possible they get at the truth, but it may ultimately be irrelevant to their success. (source)

What a great idea. I can see a few classes of people who wouldn’t support it: The whiny PC types, they want censorship of anything that could possibly make anyone “feel bad.” Unethical lawyers wouldn’t like it either – it would diminish their ability to suck legal fees from whipping their clients into a frenzy. The extremely wealthy and powerful wouldn’t like it either — since it would essentially destroy the ability to file a SLAPP suit.

The rest of us would benefit from unfettered free speech with a verifiable right of reply.

Mr. Garfunkel, please come on down and accept your First Amendment Bad Ass award!

Another anonymous speech win – Krinsky v. Doe

February 16, 2008

In Krinsky v. Doe, the California Court of Appeals examined two issues that are near and dear to me — the right of internet speakers to remain anonymous, should they so please, and whether rhetorical hyperbole is grounds for a defamation action in Florida. (The court applied Florida law).

We thus conclude that Doe 6’s online messages, while unquestionably offensive and demeaning to plaintiff, did not constitute assertions of actual fact and therefore were not actionable under Florida’s defamation law. Because plaintiff stated no viable cause of action that overcame Doe 6’s First Amendment right to speak anonymously, the subpoena to discover his identity should have been quashed.

It is unfortunate that a California court understands Florida defamation law better than most Florida trial judges.

Score one for the Doe v. Cahill standard

December 19, 2007

The Arizona Court of Appeals is the latest court to embrace the Doe v. Cahill standard for protecting anonymous speech on the Internet. See Mobilisa, Inc. v. Doe, — P.3d —-, 2007 WL 4167007 (Ariz. App. November 27, 2007).

Under that standard, when a plaintiff seeks to unmask an anonymous internet speaker, the plaintiff must show that his case can overcome a motion for summary judgment. Otherwise, the speaker’s anonymity remains intact.

This is an excellent compromise between anonymity and the rights of anyone who feels that they have been legally wronged. Unfortunately, the Doe v. Cahill standard is under constant attack – and from some unlikely quarters. I believe that it must be defended by any and all who believe in the First Amendment.

Anonymous speech is vital to a free society, and is the lifeblood of core political speech. The First Amendment protects an individual’s right to speak anonymously. See McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342 (1995) (“[A]n author’s decision to remain anonymous . . . is an aspect of the freedom of speech protected by the First Amendment.”). Read the rest of this entry »

Calling for Harm to the First Amendment

November 11, 2007

If censorship were legal and not repugnant to everything I believe in, this editorial by former Judge Michael Chionopoulos would be the first thing I would wipe from the marketplace of ideas. In all fairness, the editorial is so poorly composed that I do not think it is the author’s fault. The lack of cohesion in the article suggests that the editor must have cut out large swaths of the original piece — making the author look bad in the process.

Whether it is the author or the editor who is at fault, the article spreads the worst kind of misinformation about the First Amendment. If it goes without rebuttal, it could cause terrible violence to our profound national commitment to free expression. The article, titled First Amendment rights in the blogosphere, would be more appropriately titled “A Call to Repeal the First Amendment.

Since censorship is neither legal nor desirable, I will combat this article’s ideas with those of my own. That is how the marketplace of idea works. Read the rest of this entry »

Anthony Ciolli Dropped from Auto Admit Lawsuit

November 9, 2007

For the past few months, my law firm has been proud to represent Anthony Ciolli in the infamous Auto Admit lawsuit. As it was ongoing litigation, I have refrained from commenting upon it. I may report on it from the sidelines now – if anything legally interesting arises in the case. I am really only interested in the CDA Section 230 issues, so juicy tidbits and gossip will likely be better sought elsewhere.

For now, I will let Mr. Ciolli speak for himself. Here is Mr. Ciolli’s statement, issued this morning: Read the rest of this entry »

Tucker Max and Section 230

September 25, 2007

Tucker Max publishes books, websites, and blogs that some people find humorous. I certainly do.

He also owns a website upon which one finds online forums in which people all over the world engage in discussion. I have never read them, but I presume that they trend to the juvenile, disgusting, and any other nasty adjective you can think of. I presume that Mr. Max would find great pride in this description.

As usual, someone took offense and filed a defamation claim against Max for statements published by others on his web forum. 47 U.S.C. Section 230 has been on the books for nearly a decade, and virtually every court has held it to be an absolute bar against claims of this type against message board operators. Nevertheless, the plaintiff in this case joins a long line of disappointed parties who find out that Section 230 is alive and well and not going anywhere.

The Third Circuit held, in pertinent part:

We agree with the District Court that DiMeo’s defamation claim is barred by 47 U.S.C. § 230. Section 230 provides, in relevant part, that “[n]o 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.” 47 U.S.C. § 230(c)(1) (emphases added). “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” 47 U.S.C. § 230(e)(3); see also Green v. America Online, 318 F.3d 465, 471 (3d Cir. 2003) (stating that § 230 “‘precludes courts from entertaining claims that would place a computer service provider in a publisher’s role,’ and therefore 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, postpone, or alter content.’” (quoting Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997)). (source)

When will lawyers begin to learn the art of client control? Why was such a patently unsupportable case filed in the first place? The Plaintiff is fortunate that he escaped with nothing more than a dismissal. Max should have counterclaimed and sought sanctions under Rule 11. It is a testament to his mercy that he did not. If I were, hypothetically speaking of course, involved in such a case, I would not be so charitable.