Archive for March 2008
In an opinion by Judge Easterbrook, the 7th Circuit has affirmed Judge St. Eve’s grant of Craigslist’s motion for judgment on the pleadings. In other words, the Court ruled that Section 230 protects Craigslist from the Fair Housing Act claims contained in plaintiff’s complaint.
In emphasizing that Section 230(c)(1) does not grant absolute immunity, though, Judge Easterbrook takes the opportunity to cite some of his dictum in Doe v. GTE. This did not seem necessary, particularly given the fact that today’s ruling does not adopt the ‘definitional’ reading of Section 230(c)(1) that was first presented in Doe.
Instead the Court concedes that “subsection (c)(2) does not deal with the liability of speakers and publishers, the subject of subsection (c)(1). We read each to do exactly what it says.” Noting that “‘information’ is the stock in trade of online service providers,” the opinion concludes that “given §230(c)(1) [appellant] cannot sue the messenger just because the message reveals a third party’s plan to engage in unlawful discrimination.” In other words, appellant sought to treat Craigslist as a publisher of third party content, and Section 230(c)(1) forbids such treatment.
What I found most interesting was the fact that, in the course of rejecting appellant’s argument that Craigslist ’caused’ the discriminatory ads (a term that appears in the Fair Housing Act provision at issue in this case), the Court alluded to a scenario where a website may indeed become a ’causer’ (not just a publisher) and thus expose itself to liability:
Nothing in the service craigslist offers induces anyone to post any particular listing or express a preference for discrimination; for example, craigslist does not offer a lower price to people who include discriminatory statements in their postings.
While the statement was made in reference to the FHA, this sentence suggests that website inducement combined with certain statutory language could result, in some cases, in website liability. We’ll probably hear more about this point in the Ninth Circuit’s much anticipated en banc Roommate.com decision.
Last October I wrote about Global Royalties’ suit against RipOffReport (a website operated by Xcentric Ventures), which was dismissed on Section 230 grounds. The plaintiffs subsequently amended their complaint (still alleging defamation), Xcentric filed a motion to dismiss (still arguing Section 230 immunity), and, again, District Judge Frederick J. Martone, just last week, granted the motion, notwithstanding the Court’s belief that “[i]t is obvious that a website entitled RipoffReport encourages the publication of defamatory content.”
Plaintiffs made multiple attempts in their motion papers to neutralize Section 230′s protections here. First, relying on Batzel, plaintiffs argued that once the non-party poster requested removal of the allegedly defamatory content, “the statements were no longer ‘provided for publication,’ and defendants’ CDA immunity ceased at that point.” But as Judge Martone explained (recall that Mr. Sullivan is the non-party poster):
in Batzel, the court did not interpret “provided” as an ongoing process. The focus was on expectations regarding communications when they are made. The court was concerned that technology users would be discouraged from sending e-mails if website operators have no incentive to evaluate whether the content they receive is meant to be broadcast over the internet or kept private.  There are no similar concerns in this action; Sullivan obviously meant his messages to appear on the website. Whether website operators have a duty to withdraw content when an author later changes his mind is another question-one that is not addressed by Batzel.
On the subject of notice, the Court, citing Zeran, also reminded plaintiffs that
[w]ebsite-operator liability based on notice has been rejected, because each “notification would require a careful yet rapid investigation of the circumstances surrounding the posted information, a legal judgment concerning the information’s defamatory character, and an on-the-spot editorial decision whether to risk liability by allowing continued publication. . . . We conclude that liability based on an author’s notice, workable or not, is without statutory support and is contrary to well-settled precedent that the CDA is a complete bar to suit against a website operator for its “exercise of a publisher’s traditional editorial functions-such as deciding whether to publish, withdraw, postpone or alter content.
Judge Martone added that the notice argument remained moot, notwithstanding the fact that the poster of the allegedly defamatory post himself was purportedly the person requesting its removal.
Next, plaintiffs claimed that “defendants themselves constitute an “information content provider” with respect to the posted content.” The Court was not persuaded. “Plaintiffs allege only the most minor participation by defendants in actually composing the allegedly defamatory postings: Defendants provided a list of categories from which Sullivan selected the title “Con Artists” for his post. As in our order dismissing the original complaint, we conclude that this participation is insufficient as a matter of law to make defendants information content providers with respect to the postings.”
Plaintiffs also made the related argument that “defendants encourage defamatory postings from others for their own financial gain and, therefore, are partly responsible for the “creation or development” of the messages.” The Court dismissed this argument as not supported by the law (“[u]nless Congress amends the statute, it is legally (although perhaps not ethically) beside the point whether defendants refuse to remove the material, or how they might use it to their advantage”) or plaintiffs’ allegations (“plaintiffs have not alleged that defendants solicited Sullivan’s postings in particular, or that they specifically solicited any postings targeting Global. Nor have they alleged that defendants altered Sullivan’s comments, or had any more than the most passive involvement (providing a list of possible titles) in composing them”).
The Court was unwilling to stay the case to await the Ninth Circuit’s en banc Roommate.com decision. Fair enough. But it sure will be nice to get some more guidance on the implications of the use and content of material produced by a website operator.
Last week it was a federal judge ordering a controversial website’s domain name registrar to effectively pull the plug on its customer.
This week it’s somebody at the U.S. Treasury Department directing a DNR to cut the cord to websites operated by an Englishman living in Spain, according to a piece by the New York Times’ Adam Liptak.
Website operators, civil liability obviously isn’t the only thing you need to be thinking about on the legal front. Given any thought recently to the arrangement you have with your domain name registrar?
UPDATE: Check out this timely post from an Irish IT law blog on the subject of domain name registrars.