In affirming the grant of Google’s Motion to Dismiss for failing to remove a blog post, on February 23, 2018, the D.C. Circuit Court concluded that the Communications Decency Act (CDA) immunizes website operators from liability for publication of third-party content even when they have content guidelines.
In Bennett v. Google LLC, Case No. 17-cv-7106 (D.C. Cir. Feb. 23, 2018), the D.C. Circuit Court was presented with an appeal of a dismissal of Google, which was sued for failing to remove a blog post that was alleged to be defamatory to Dawn Bennett, owner of DJ Bennett Holdings, LLC (together, the Plaintiffs), a high-end sports apparel retailer.
In March 2013, the Plaintiffs hired a search engine optimization (SEO) and search engine marketing (SEM) company to provide services to help increase its sales. After a few months, the relationship soured and the Plaintiffs and the SEO company renegotiated their contract. An issue arose regarding payment, which was ultimately resolved, but the SEO company wrote a blog titled “DJ Bennett-think-twice-bad business ethics” and published it through Google. The Plaintiffs attempted to convince the SEO company to remove the post, but to no avail. It then turned its attention to Google.
The Plaintiffs’ counsel contacted Google’s general counsel and other senior corporate officers, “asking them to drop” the blog “because it violated Google’s Guidelines of what is appropriate material for inclusion in blogs.” Notwithstanding the request to remove the post, Google continued to publish the blog.
The Court recognized that Google has a “Blogger Content Policy” that regulates inter alia “adult content, child safety, hate speech, crude content, violence, harassment, copyright infringement, and malware and viruses.” The Court understood that users are encouraged to flag policy violations, and Google, if it finds that the blog violates its policies, may “limit access to the blog, delete the blog, disable the author’s access or report the user to law enforcement”; and if it finds that the blog does not violate the policy, Google “will not take any action against the blog or blog owner.”
The D.C. Circuit Court reviewed the underlying dismissal de novo. The Court acknowledged that the “CDA recognizes that the internet offers ‘a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.’” The CDA further codifies “the policy of the United States (1) to promote the continued development of the Internet and other interactive computer services … [and] (2) to preserve the vibrant and competitive free market that presently exists for the Internet ….”
To effect those ideals, the CDA incorporates a “Protection for ‘Good Samaritan’ blocking and screening of offensive material,” which reads: “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.” 47 U.S.C. §230(c)(1). The D.C. Circuit Court further recognized that “to give these provisions teeth, section 230 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.”
Giving deference to the seminal case of Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997), the D.C. Circuit Court recognized that the intent of the CDA was “to promote rather than chill internet speech.” It acknowledged that the CDA “encourage[s] service providers to self-regulate the dissemination of offensive material over their services,” and “incentivized companies to neither restrict content nor bury their heads in the sand in order to avoid liability,” which “paved the way for a robust new forum for public speech as well as a ‘trillion-dollar industry centered around user-generated content.’”
The Court found that CDA immunity applies if the defendant can meet a three-part test:
- It is a “provider of user of an interactive computer service.”
- The relevant post includes “information provided by another information content provider.”
- The complaint seeks to hold the defendants liable as the “publisher or speaker” of the post.
Thus, the Court recognized the difference between “interactive computer service” providers − which are generally eligible for CDA section 230 immunity − and “information content provider[s],” which are not entitled to immunity.
Here, Google was found to qualify as an “interactive computer service” because it enabled computer access by multiple users to a computer platform. The Plaintiffs conceded this fact. However, the Plaintiffs argued that Google should have been liable as a “publisher of the content” since it established and enforced its “Blogger Content Policy,” and was thereby influencing the content it published. The D.C. Circuit Court rejected this claim, finding that the argument ignored “the very essence of publishing is making the decision whether to print or retract a given piece of content.” It described the difference in terms of input and output of content and found that the input was the SEO company’s content (i.e., the negative blog post), and Google’s role was solely one of output control (i.e., its choice was limited to a “yes” or “no” decision whether to keep the content available on its site).
The D.C. Circuit Court concluded that the CDA allows computer service providers to establish and enforce standards of decency without the risk of liability − so long as it does not “edit” or “dictate” the content. Since the decision to print or retract is merely a publishing decision, such conduct is covered by the CDA immunity. The Court’s decision did not amount to an approval of the posting, noting that the Plaintiffs’ action should be directed toward the alleged culpable party, i.e., the party that posted the alleged defamatory message.
This decision reinforces the applicability of CDA immunity for website operators who host user-generated content, even when the website has established its own standards of decency to guide the person who authors and publishes the post.