In this second installment of our six-part series examining Section 230, the section of the 1996 Communications Decency Act (CDA) that immunizes online service providers from liability stemming from the publication and filtering of content created by their users or other third parties, we’ll examine some of the most significant cases that interpreted and applied the statute in the fifteen (or so) years following its enactment.

These cases show a general trend of courts interpreting the statutory language broadly: rejecting any distinction between publisher and distributor liability for purposes of the Section 230 safe harbor, giving wide latitude to the types of platforms that qualify as “interactive computer services” and to who counts as a “provider or user” of such services, and clarifying that Section 230 immunity is not limited to defamation claims but rather extends to any claim or cause of action that treats the defendant as a “publisher or speaker” of third-party information.

But some of these early cases also imposed limits on the broad scope of Section 230 and planted the analytical seeds that would eventually lead to the more recent trend of cases interpreting the statute less expansively, which we will cover in our third installment of this series.

Due to length, we split this second installment into two parts and published the first part yesterday, so please start with that if you have not yet seen it.

And if you want to catch up on the origins and prehistory of Section 230, you can read the first installment of this series here.

Ninth Circuit Imposes Important Limit on Broad Scope of Section 230 Immunity

As we have seen, the early trend in the cases was to interpret the Section 230 immunity broadly. But the 2008 Ninth Circuit case, Fair Housing Council v. Roommates.com, imposed an important limitation on the Section 230 safe harbor. In Roommates.com, the defendant, an online roommate-finding service, required users to choose among predetermined responses to questions that asked for users’ preferences in sex, sexual orientation, and family status of a future roommate, allegedly in violation of the Fair Housing Act.

Roommates.com argued that, under Section 230, it could not be held liable for its users’ allegedly discriminatory responses to these questions. The court rejected this argument based on its interpretation of the term “development” as used in Section 230’s definition of “information content provider” (i.e., as set forth in Section 230(f)(3), “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service”):

[W]e interpret the term “development” as referring not merely to augmenting the content generally, but to materially contributing to its alleged unlawfulness. In other words, a website helps to develop unlawful content, and thus falls within the exception to section 230, if it contributes materially to the alleged illegality of the conduct.

Based on this interpretation, the court held that, by requiring users to choose among predetermined responses, Roommates.com was affirmatively “inducing third parties to express illegal preferences,” making the site a “co-developer” of the content and, therefore, an information content provider for purposes of Section 230:

Roommate created the questions and choice of answers, and designed its website registration process around them. Therefore, Roommate is undoubtedly the “information content provider” as to the questions and can claim no immunity for posting them on its website, or for forcing subscribers to answer them as a condition of using its services.

By contrast, the court held that Roommates.com was entitled to Section 230 immunity with respect to user content entered into “neutral tools” on the website, such as a general comment field where users could enter criteria or preferences in a roommate.

Interestingly, after much litigation over the Section 230 issue and the en banc holding that Roommates.com was not entitled to immunity with respect to the dropdown menu, Roommates.com did ultimately prevail on the substantive Fair Housing Act claim, with the Ninth Circuit holding in 2012 that Roommates.com had not acted illegally because roommates who share a home are not covered by the Fair Housing Act.

Ninth Circuit Considers Whether Plaintiff’s Claims Treat Defendant as Publisher or Speaker for Purposes of Section 230

It is common for plaintiffs in Section 230 cases to argue that their claims do not seek to hold an online platform liable as a publisher or speaker of third-party content and, therefore, are not barred by Section 230. That was plaintiff Cecilia Barnes’s approach in Barnes v. Yahoo!, a Ninth Circuit case from 2009.

Barnes’ ex-boyfriend created several fake and unauthorized Yahoo profiles of Barnes with nude photographs of her as well as her personal contact information. He also pretended to be Barnes in Yahoo chat rooms and directed men to the falsified profiles, which resulted in Barnes receiving solicitations online, by phone, and from in-person visits to her office.

Barnes made several requests to Yahoo to remove the fake profiles, but her efforts were unsuccessful. Eventually, a Yahoo representative contacted Barnes and told her that he would make sure the fake profiles were removed. However, the profiles remained on Yahoo’s website for another two months before they were finally removed.

Barnes sued Yahoo alleging what the Ninth Circuit construed as two claims under Oregon law: first, a tort claim that Yahoo acted negligently when it failed to remove the fake profiles after having said that it would do so; and second, a claim for promissory estoppel based on Yahoo’s alleged unfulfilled promise to remove the profiles.

The district court held that, under Section 230, Yahoo could not be held liable for the fake profiles and dismissed Barnes’s claims. On appeal, the Ninth Circuit agreed with the district court with respect to Barnes’s negligence claim, despite Barnes’s argument that “this tort claim would not treat Yahoo as a publisher . . . but rather as one who undertook to perform a service and did it negligently.”

Rejecting this argument, the court held that “a plaintiff cannot sue someone for publishing third-party content simply by changing the name of the theory from defamation to negligence. Nor can he or she escape section 230(c) by labeling as a ‘negligent undertaking’ an action that is quintessentially that of a publisher.” The principle that Section 230 immunizes publishing conduct—i.e., “any activity that can be boiled down to deciding whether to exclude material that third parties seek to post online”regardless of the specific cause of action is an important one, as we will see in subsequent cases.

The Ninth Circuit declined, however, to apply this principle to Barnes’s promissory estoppel claim based on the Yahoo representative’s promise to remove the fake profiles. The distinction, according to the court, was that “[c]ontract liability here would come not from Yahoo’s publishing conduct, but from Yahoo’s manifest intention to be legally obligated to do something, which happens to be removal of material from publication.” In other words, according to the court, Barnes’s promissory estoppel claim does not target Yahoo’s failure to remove the fake profiles per se (which would constitute publishing conduct within the scope of Section 230), but rather Yahoo’s unfulfilled promise to remove the fake profiles. Therefore, the court held, “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.”

Courts Reach Different Conclusions Regarding Whether Section 230 Applies to Website That Encouraged Posting of Defamatory Content

In 2012, a pair of district court decisions based on similar facts split on whether defendant TheDirty.com, a gossip website, qualified for immunity under Section 230. The website invited users to “submit dirt” about themselves or others via a submission form requesting the basics of the “dirt,” with fields for “what’s happening” and “who, what, when, where, why,” and a link for users to upload photographs. Website operator Nik Richie then reposted the content, sometimes adding his own comments. Unsurprisingly, unhappy subjects of the gossip postings have sued Richie and his company on numerous occasions.

In one case, Jones v. Dirty World Entertainment Recordings, LLC, in the Eastern District of Kentucky, former teacher and Cincinnati Bengals cheerleader Sarah Jones brought defamation and other state law claims related to two user-submitted posts showing her photo and stating that she had sex with players and contracted sexually transmitted diseases. The posts included Jones’s picture and statements regarding her sex partners, as well as allegations that she had sexually transmitted diseases. Richie added a one-line comment— “why are all high school teachers freaks in the sack?”—and published the posts.

Richie moved for judgment as a matter of law on grounds that Section 230 gave him immunity as the “provider of an interactive computer service” because, he argued, the defamatory content originated with a user of the site and not Richie, though he had added his own comments. The court denied the motion, citing “the very name of the site, the manner in which it is managed, and the personal comments of defendant Richie” as leading to its conclusion that Richie “specifically encouraged development of what is offensive about the content” and thereby lost immunity under Section 230.

In the second of the two cases, S.C. v. Dirty World, LLC, in the Western District of Missouri, the court held that Richie and TheDirty.com did qualify for Section 230 immunity on facts similar to those in Jones. The plaintiff in S.C. brought suit based on a user-generated post on TheDirty.com that showed her picture along with a description alleging that she had relations with the user’s boyfriend and attempted to do so with the user’s son. Richie published the post, adding a comment about the plaintiff’s appearance. The court explained that, because a third party authored the allegedly defamatory content, CDA immunity turned on whether TheDirty “developed” the content by having “materially contribute[d] to [its] alleged illegality.” The court held that the defendants did not materially contribute to the post’s alleged illegality because the defendants never instructed or requested the third party to submit the post at issue, “did nothing to specifically induce it,” and did not add to or substantively alter the post before publishing it on the site.

Turning back to Jones, after a mistrial and a second trial that resulted in a verdict in favor of Jones for $338,000 in damages, the Sixth Circuit took up Dirty World’s appeal. The Sixth Circuit noted that Section 230 applies “only to the extent that an interactive computer service provider is not also the information content provider of the content at issue,” and that “a website may be immune from liability for some of the third-party content it publishes but be subject to liability for the content that it is responsible for as a creator or developer.”

On appeal, Dirty World and Richie argued that the district court erred when it held that “a website owner who intentionally encourages illegal or actionable third-party postings to which he adds his own comments ratifying or adopting the posts becomes a ‘creator’ or ‘developer’ of that content and is not entitled to immunity.” The Sixth Circuit agreed that the district court’s definition of “development” was incorrect, and instead adopted the material contribution test from Roommates.com:

Consistent with our sister circuits, we adopt the material contribution test to determine whether a website operator is “responsible, in whole or in part, for the creation or development of [allegedly tortious] information.”

The court went on to note that the district court’s encouragement test “would inflate the meaning of ‘development’ to the point of eclipsing the immunity from publisher-liability that Congress established,” given that many websites actively encourage users to post particular types of content, some of which will be unwelcome to others.

Applying the material contribution test, the court held that, “Richie and Dirty World cannot be found to have materially contributed to the defamatory content . . . simply because those posts were selected for publication, . . . [n]or can they be found to have materially contributed to the defamatory content through the decision not to remove the posts.” The court distinguished Roommates.com because “the website that Richie operated did not require users to post illegal or actionable content as a condition of use.” Finally, the court held that, although Richie was clearly an information content provider with respect to his own commentary that was added to the posts, that commentary “although absurd, did not materially contribute to the defamatory content” of the posts. Accordingly, Dirty World and Richie were entitled to immunity under Section 230.

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Please look out for installment number three of this six-part series, where we will examine how the tide began to turn against expansive interpretations of Section 230, with courts becoming increasingly willing to reward plaintiffs’ efforts to find chinks in the safe harbor’s armor.