In the past month, there have been some notable developments surrounding Section 230 of the Communications Decency Act ("CDA" or "Section 230") beyond the ongoing debate in
On
Needless to say, the law has already been challenged in court, as many of its provisions may violate the First Amendment by mandating what a private online operator may publish or withdraw from its site. Courts have routinely ruled that online platforms are not transformed into a state actor subject to First Amendment constraints solely because they provide a forum for speech. Similarly, many of the provisions that potentially make a platform liable for certain user content moderation decisions or policies, on first glance, seemingly run contrary to and may be preempted by the CDA, which grants broad immunity to internet service providers for all claims stemming from their publication of information created by third parties and also provides immunity for good faith content filtering decisions related to objectionable content. 47 U.S.C. §230(c)(1), (2)(a). Thus, under Section 230, any activity that can be reduced to deciding whether to publish or exclude material that third parties seek to post online is protected by the CDA. Moreover, regarding preemption, the CDA also expressly provides that "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).
With a legal challenge pending, it remains to be seen whether SB 7072 will come into force on its effective date on
Recent CDA Decisions
Lemmon v Snap, No. 20-55295 (9th Cir.
The Snap case was brought by the surviving parents of two boys ("Plaintiffs") who were involved in a tragic high-speed car accident.
The plaintiffs' suit alleged that
In examining the plaintiffs' amended complaint, the district court granted Snap's motion to dismiss and held that the CDA barred the plaintiffs' negligent design lawsuit claim because it sought to treat Snap as the publisher or speaker of third party content. (Lemmon v.
On appeal, the Ninth Circuit reversed, holding that because the plaintiffs' claim neither treats Snap as a "publisher or speaker" nor relies on "information provided by another information content provider," Snap is not entitled to CDA immunity on the plaintiff's distinct negligent design claim. (Lemmon v.
"Snap 'acted as the 'publisher or speaker' of user content by' transmitting [one of the boy's] snap, 'and that action could be described as a 'but-for' cause of [the boys'] injuries.' This is unsurprising: Snap 'is an internet publishing business. Without publishing user content, it would not exist.' But though publishing content is 'a but-for cause of just about everything' Snap is involved in, that does not mean that the Parents' claim, specifically, seeks to hold Snap responsible in its capacity as a 'publisher or speaker.' The duty to design a reasonably safe product is fully independent of Snap's role in monitoring or publishing third-party content." [citation omitted]
In limiting its exception to CDA immunity, the Ninth Circuit further clarified that the plaintiffs do not fault Snap for publishing that photo message before the accident (as that is, according to the court, simply evidence that
CDA immunity was also unavailable in this case because the plaintiffs' negligent design claim did not turn on "information provided by another information content provider." The panel noted that the plaintiffs' negligent design claim rested on Snap's own acts and stands independently of the content that
In sum, the Ninth Circuit rejected Snap's argument that the plaintiffs' negligent design claim was merely another ill-fated attempted at a "CDA workaround." The court distinguished the instant case from other creative pleading attempts to bypass CDA immunity in past disputes that depended on third party content, including the Dyroff case (rejecting an argument that a site developed content based on editorial functions that notification and recommendation functions) and the Kimzey case (an interactive computer service that "classifies" user characteristics and displays a "star rating system" aggregating consumer reviews does not transform it into a developer of the underlying user-generated information).
Appeals courts do not often carve out an exception to CDA immunity, so the ruling makes this case notable. In creating this seemingly narrow exception, the court was careful in its reasoning to ensure that plaintiffs' amended claims did not inherently implicate third party content. Most claims of this type, however, are inextricably tied to the publishing of third party content (and hence subject to CDA immunity) - yet, new technologies and applications may challenge this assumption and we will keep an eye on how the Lemmon ruling affects future suits.
It should be noted that even though the court denied Snap CDA immunity in this instance, the ruling does not necessarily mean that the plaintiffs will prevail on the merits since they would still have to prove their negligent design claim, a products liability tort, and sufficiently show causation and a requisite duty. Indeed, this obstacle proved unassailable in a similar lawsuit involving a fatal car crash involving the Speed Filter, where a
Henderson v. The Source for Public Data, No. 20-294 (
The Henderson caseconcerns a novel application of CDA immunity to federal Fair Credit Reporting Act (FCRA) claims. In the case, plaintiffs alleged that The Source for
In dismissing the complaint, the court first found that FCRA claims are not exempt from the CDA, as the statutory exemptions contained in 47 U.S.C § 230(e), which include federal criminal statutes, IP law and federal communications privacy law, among others, do not list FCRA. Citing the landmark Fourth Circuit Zeran decision, the court stated that Section 230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user. Pursuant to its CDA analysis, the court held that the defendants were entitled to immunity. The court found that the defendants' site qualifies as an "interactive computer service" because it does not produce the content of the reports at issue, even if the site paid a third party for the raw content and edited it like a publisher or distributor in its traditional capacity: "Although Plaintiffs allege that Defendants manipulate and sort the content in a background check report, there no explicit allegation that Defendants materially contribute to or create the content themselves."
Other online public record websites and "people finders" have been involved with privacy-related litigation in the past (and even been granted CDA immunity over state claims). And while the Henderson decision is not substantively rich in its legal analysis of the CDA and FCRA issues, it will be interesting to see how this ruling plays out or how other people search sites or more established FCRA-covered entities that use third party or public content might plead the CDA in defense of future FCRA lawsuits. Interestingly, a peek at the pleadings in the well-known
Beyond the courtroom, it's possible that this ruling will influence the ongoing CDA reform debate, as legislators who already have reservations about the scope of CDA protection may look askance at the Henderson ruling and seek to add the FCRA as a statutory exemption to the CDA in a future reform bill. We will have to wait and see.
Some Interesting CDA Section 230 Developments: A Novel FCRA Victory, A Negligent Design Exception And A Startling New State Law
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