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Federal Internet Law & Policy
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Good Samaritan 47 USC § 230(c)(1) Dont be a FOOL; The Law is Not DIY
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- Good Samaritan Defense

Three-part inquiry to determine CDA § 230(c)(1) immunity:

(1) whether Defendant is a provider of an interactive computer service;
(2) if the postings at issue are information provided by another information content provider (Third Party Content); and
(3) whether Plaintiff's claims seek to treat Defendant as a publisher or speaker of third party content. (Cause of Action)

Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 564 F. Supp. 2d 544, 548 (E.D. Va. 2008);

Circuit Court 

District Court

Third Party Content

Section 230(c)(1):

[C]reates 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. Specifically, § 230 precludes courts from entertaining claims that would place a computer service provider in a publisher's role. Thus, law suits 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-are barred.

As long as the content is from a third party, the interactive computer service is generally not liable as a publisher.

Publisher

Editor

"an interactive service provider who solicits, pays for, edits, and generally maintains active control over the content of its website may continue to assert immunity from liability." [Nasser EDVA 2012] [Green] "[A]n editor’s minor changes to the spelling, grammar and length of third-party content do not strip him of section 230 immunity." Batzel, pp. 3461-64, 9th Cir. 2003

Editor Liability for Selecting Content

"[I]f the editor publishes material that he does not believe was tendered to him for posting online, then he is the one making the affirmative decision to publish, and so he contributes materially to its allegedly unlawful dissemination. He is thus properly deemed a developer and not entitled to CDA immunity. See Batzel, 333 F.3d at 1033" Roommates, p. 3467, 9th Cir. 2008

Failure to Act, Remove Content

Mixed Content Host and Creator

"Some courts have recognized that a website operator may be "responsible" for "development" of offensive content, within the meaning of § 230(c)(1), if it "in some way specifically encourages development of what is offensive about the content." "A website operator can be both a service provider and a content provider: If it passively displays content that is created entirely by third parties, then it is only a service provider with respect to that content. But as to content that it creates itself, or is “responsible, in whole or in part” for creating or developing, the website is also a content provider. Thus, a website may be immune from liability for some of the content it displays to the public but be subject to liability for other content." Roommates.com, p. 3453 9th Cir. 2009; Anthony v. Yahoo! Inc., 421 F. Supp. 2d 1257, 1262-63 (N.D. Cal. 2006) (Yahoo! is not immune under the CDA for allegedly creating fake profiles on its own dating website); Hare v. Richie, No. Civ. ELH-11-3488, 2012 WL 3773116, at *15-16 (D. Md. Aug. 29, 2012) [Compare Donato slip at 20 Even where the service provider also acts as a content provider - even where the service providers comments on the third party content in question - as long as the service provider did not provide the content in question, the service provider is protected.]

Circuit Courts

District Courts

However, encouraging Defamatory Remarks is not sufficient to defeat CDA immunity.

Interactive Service may be producer of some content, host of other content

Defense to treating Defendant as a publisher or speaker of third party content

Notice: Unlike the DMCA, providing notice to an ISP does not create an obligation to take down the content nor does it defeat the immunity from liability. [Eckert] [Donato slip at 35-36] The Court in Zeran stated "[i]n light of the vast amount of speech communicated through interactive computer services, these notices could produce an impossible burden for service providers, who would be faced with ceaseless choices of suppressing controversial speech or sustaining prohibitive liability."Zeran v. American Online, Inc., 958 F. Supp. 1124, 1134-36 (E.D. Va. 1997), aff'd 129 F.3d at 333 ("Liability upon notice would defeat the dual purposes advanced by § 230 of the CDA" as it would "reinforce[] service providers' incentives to restrict speech and abstain from self-regulation"; notice-based liability "would provide third parties with a no-cost means to create the basis for future lawsuits.")

Immunity

The circuits are split as to whether the defense established by § 230(c)(1) is properly understood as an "immunity" defense. Ordinarily, courts "aim to resolve the question of § 230 immunity at the earliest possible stage of the case because that immunity protects websites not only from `ultimate liability,' but also from `having to fight costly and protracted legal battles.'" Nemet Chevrolet v. Consumeraffairs.com, 591 F.3d 250, 255 (4th Cir. 2009); Hare v. Richie, Dist. Court, D. Maryland 2012.

One of the more interesting cases in this space was GENERAL STEEL DOMESTIC SALES, LLC v. Chumley, Court of Appeals, 10th Circuit 2016 where Defendant argued that Sec. 230(c) provides immunity not just from liability, but from suit itself. Having clearly stated in 2000 that an online service " ... is immune from suit under § 230," the 10th Circuit had to circle back and say, "well, we have never really examined this question of immunity before." There is a significant difference between Sec. 230(c) being an affirmative defense that prevents liability - where after appropriate discovery the court can conclude that defendant appropriately falls under the ambit of the statute - and Sec. 230(c) building an impenetrable wall around defendant preventing any lawsuit. The 10th Circuit takes the time to make clear that this type of immunity is normally reserved for governments:

"Immunity from suit is a benefit typically only reserved for governmental officials. Wyatt v. Cole, 504 U.S. 158, 167 (1992) (qualified immunity); see Farmer v. Perrill, 275 F.3d 958, 961 (10th Cir. 2001) (limited waiver of immunity under Federal Tort Claims Act). There are three instances when courts may extend qualified immunity to private parties. First, if the private parties are "closely supervised by the government." Rosewood Servs., Inc. v. Sunflower Diversified Servs., Inc., 413 F.3d 1163, 1167 (10th Cir. 2005); see also DeVargas v. Mason & Hanger-Silas Mason Co., 844 F.2d 714, 722 (10th Cir. 1988). Second, if there is a historical basis for providing immunity to that type of private entity. Richardson v. McKnight, 521 U.S. 399, 404 (1997). Third, if extending immunity implicates "special policy concerns involved in suing government officials." Wyatt, 504 U.S. at 167. We need not delve into this analysis because this suit in no way involves the government, and Armstrong Steel has not identified a historical basis for providing private parties immunity from suit under the CDA."

Defendants still gots to defend.

Immunity:

2nd Circuit

3rd Circuit

4th Circuit:

5th Circuit:

8th Circuit: Johnson v. Arden, 614 F.3d 785, 791 (8th Cir. 2010) (holding that § 230(c)(1) establishes an immunity defense);

9th Circuit:

10th Circuit:

11th Circuit: Almeida v. Amazon.com, Inc., 456 F.3d 1316, 1321 (11th Cir. 2006)

Affirmative Defense

Immunity Regardless of Whether Unethical

immunity applies regardless of whether its practices are deemed ethical or not. See Giordano v. Romeo, 76 So. 3d 1100, 1102 (Fla. 3d DCA 2011) ("However much as this Court may disapprove of business practices like those embraced by [the plaintiff], the law on this issue is clear. [The plaintiff] enjoys complete immunity from any action brought against it as a result of the postings of third party users of its website.")

Causes of Action

This defense has been interpreted broadly. [Carafano] [Batzel n 19] [Zango] Zeran v. American Online Inc., 129 F.3d 327, 330 (4th Cir. 1997) ("By its plain language, § 230 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.") Potential state causes of action, inconsistent with this section, are preempted. [47 U.S.C. § 230(e)(3)]

Mere speculation is insufficient to overcome a motion to dismiss. Levitt v. Yelp! Inc., Case No. C10-1321, 2011 WL 5079526, at *2 (N.D. Cal. Oct. 26, 2011) (rejecting similarly speculative assertions that unidentified Yelp employees authored allegedly defamatory reviews)

Negligence:

Intentional Infliction of Emotional Distress:

Defamation:

Tortious Interference:

Business Torts:

Sharing Economy :: Regulatory Compliance

Public Nuisance: Dart v. Craigslist, Inc., 665 F.Supp.2d 961, 968-970 (N.D.Ill. 2009) (immunity to public nuisance claims)

Private Nuisance: Prickett v. InfoUSA, Inc., 561 F. Supp. 2d 646, 648, 652 (E.D. Tex. 2006) (invasion of privacy, trespass, private nuisance, and intentional infliction of emotional distress).

Invasion of Privacy: Prickett v. InfoUSA, Inc., 561 F. Supp. 2d 646, 648, 652 (E.D. Tex. 2006) (invasion of privacy, trespass, private nuisance, and intentional infliction of emotional distress).

Trespass: Prickett v. InfoUSA, Inc., 561 F. Supp. 2d 646, 648, 652 (E.D. Tex. 2006) (invasion of privacy, trespass, private nuisance, and intentional infliction of emotional distress).

Liability for Third Party Sale of Illegal or Defective Items

Federal Statutes

Fair Housing Act

State Causes of Action

Recasting cause of action in order to hold ICS liable for Publishing Third Party Communications

Unaffected by CDA 47 U.S.C. § 230(e)(1)-(4)

Foreign Judgment: Global Royalties, D Arizona 2007 A third party made comments on defendant's website ripoffreport.com about plaintiff. Plaintiff received a judgment in Canada enjoining defendant. Plaintiff seeks enforcement in the US . Defendant raises CDA sec. 230 as a defense for third party content. Court granted defendant's motion to dismiss.
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