The U.S. Court of Appeals for the First Circuit this week delivered a resounding victory for websites dependent on a federal immunity from claims based on content posted by third parties. Broadly interpreting Section 230 of the Communications Decency Act, 47 U.S.C. § 230, the court affirmed dismissal of a lawsuit brought by three women against the website Backpage.com after they appeared in ads for sexual services posted on the site by third parties.
Section 230 prohibits treating an online service provider “as the publisher or speaker of any information provided by another information content provider,” 47 U.S.C. § 230(c)(1), with only limited exceptions, including those for intellectual property and federal criminal laws. Courts have widely interpreted the statute to bar claims against websites premised on content provided by third parties.
In Doe v. Backpage.com, LLC, --- F.3d ----, 2016 WL 963848 (1st Cir. 2016), the plaintiffs alleged violations of federal and state anti-trafficking laws, a state consumer protection statute, and the right of publicity, as well as copyright infringement. The district court granted Backpage.com’s motion to dismiss under Section 230 and for failure to state a claim upon which relief could be granted. The First Circuit affirmed, rejecting several arguments plaintiffs have advanced in this and other cases seeking to overcome Section 230 immunity.
First, the court rejected the plaintiffs’ arguments that their claims did not treat Backpage.com as a publisher or speaker because they targeted Backpage.com’s “conduct,” which the plaintiffs described as a public campaign to make it appear Backpage.com is combating trafficking while structuring its website and administering its content rules to encourage and facilitate trafficking. The Court noted the allegations about Backpage.com’s supposed campaign “rely on setentious rhetoric rather than well-pleaded facts” and that the claims about the website’s practices went to the heart of Section 230 immunity.
Noting the “near-universal agreement that section 230 should not be construed grudgingly,” the court held the plaintiffs’ sex trafficking claims treated Backpage.com as the publisher or speaker of third-party content because, as the plaintiffs admitted, “the contents of all the relevant advertisements were provided either by their traffickers or by appellants themselves,” and “but for the content of the postings,” the plaintiffs would not have been harmed. The plaintiffs’ arguments also failed because “features that are part and parcel of the overall design and operation of the website... which reflect choices about what content can appear on the website and in what form, are editorial choices that fall within the purview of traditional publisher functions.”
Second, the court rejected plaintiffs’ attempt to import into Section 230(c)(2) a good faith standard from Section 230(c)(1). Section 230(c)(2) prohibits liability for “any action voluntarily taken in good faith to restrict access to or availability of” material a provider deems “objectionable.” The court held that “[S]ection 230(c)(2) provides a set of independent protections for websites.”
Third, the court rejected the plaintiffs’ attempt to take advantage of Section 230’s exemption for federal criminal law, 47 U.S.C. § 230(e)(1), which states “[n]othing in this section shall be construed to impair the enforcement of … any … Federal criminal statute.” It held that the plain language of the statute “excludes civil suits.”
The court rejected the plaintiffs’ remaining claims on grounds other than Section 230. Their consumer protection claim—that Backpage.com avoided scrutiny by pretending to combat sex trafficking, resulting in the trafficking of plaintiffs—failed because it was “forged entirely out of surmise” that “pyramids speculative inference on speculative inference.” Their right of publicity claim failed because Backpage.com did not appropriate the commercial value of plaintiffs’ images—a conclusion reinforced by “basic policy considerations” that protect publishers from right of publicity claims premised on advertisements from third parties. Finally, the court found the copyright claim deficient because there was no plausible allegation of damages.