Online Liability Blog

Sixth Circuit: Section 230 is not Absolute

Michael Erdman Online Liability Blog, Section 230

One of the first posts here summarized a federal district court decision involving SexSearch.com. The court dismissed plaintiff’s claims (all 14 of them) against the website, relying on both FRCP 12(b)(6) and Section 230.

On appeal, the Sixth Circuit affirmed the lower court’s dismissal, but on non-Section 230 grounds. I only mention it here because of a few lines in the opinion that strongly hint at how the panel viewed the district court’s application of Section 230:

Because we agree with the district court that Doe’s complaint failed to state a claim, we do not reach the question of whether the Communications Decency Act provides SexSearch with immunity from suit. We do not adopt the district court’s discussion of the Act, which would read ยง 230 more broadly than any previous Court of Appeals decision has read it, potentially abrogating all state- or common-law causes of action brought against interactive Internet services. We do not have before us any issue concerning the criminal liability of the parties or the voidability of contracts for sexual services. . . . [We] explicitly reserve the question of [Section 230’s] scope for another day.

To my knowledge this would have been the Sixth Circuit’s first foray into constructing Section 230. While it took a rain check, the panel clearly signaled to lower courts that it doesn’t consider the statute an absolute bar to all causes of action.

I’m not sure why the ruling noted the absence of any criminal liability or contract voidability issues. Presumably neither issue would have been quashed by Section 230. But then again perhaps I’m just a little rusty.

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Thank you

Michael Erdman Me, Online Liability Blog

Before I get started with substantive postings – the initial wave of static pages now complete – I’d like to first thank a few people who inspired me to get off my you-know-what and get this blog started.

J. Craig Williams, founding member of The Williams Law Firm, PC (Newport Beach, CA) and author of the May It Please The Court blog, first wrote about the Craigslist/Fair Housing Act suit, presently on appeal to the 7th Circuit, shortly after it was filed in 2006. The two of us exchanged several emails about the case, and Craig was kind enough to allow me to “guest post” on his blog when Judge St. Eve issued a ruling in the case. Thanks again, Craig, for that opportunity, which eventually (speed is not one of my strengths) encouraged me to start my own blog.

If you read blogs covering law and technology, you have no doubt come across Professor Eric Goldman’s Technology & Marketing Law Blog, which often features thoughtful summary and analysis of cases involving “derivative liability” and related issues. Eric is an Assistant Professor at Santa Clara University School of Law, Director of the School’s High Tech Law Institute, and often quoted in the mass media opining on law & technology issues. As a regular reader of Eric’s blog, it was hard not to want to get more involved in this area of the law. Thank you, Eric.

Another thank you goes out to Evan Brown, an associate at the Chicago office of Hinshaw & Culbertson LLP, who has spoken at several Chicago Bar Association luncheons in the past year or two on lawyer blogging, Section 230, etc. His presentations and accompanying materials amplified my interest in technology practice areas, and his blog – Internet Cases – is an excellent place to keep track of all things law and Internet.

I should add that several other CBA speakers, without knowing it, also persuaded me to further explore the intersection of law and technology after they gave compelling presentations to various section members over lunch. They include Paul D. McGrady, Jr. of Greenberg Traurig, LLP and Kenneth K. Dort, now of McGuireWoods LLP. Thanks guys.

Hopefully I haven’t left anyone out…

My First Post

Michael Erdman Me, Online Liability Blog, Section 230

Hi. My name is Michael Erdman. I created this blog (or “blawg”) to start a discussion among technologists, lawyers and other interested persons on the topic of legal liability on the Internet. Specifically, I am interested in identifying and analyzing with others the circumstances under which a website, blog, internet service provider, host, subscription service, or the like, may be liable for certain online “conduct.” I expect the conversations here to focus on cases that may trigger “immunity” under the section of the Communications Decency Act codified at 47 U.S.C. 230(c). I should note that I do not expect to devote substantial space to intellectual property topics in this area, but issues relating to the Digital Millennium Copyright Act may be covered from time to time.

What exactly am I talking about? Here are a few current examples (beyond the typical defamation action filed against a website for the alleged display of libelous content submitted by a third party) of disputes relating to potential online liability, some of which may implicate Section 230, that I look forward to considering on this blog:

  • Is an online bulletin board or roommate-finding site liable for alleged violations of the Fair Housing Act that are displayed on the website?
  • Is a matchmaking website subject to liability for civil rights violations in connection with features that allegedly discriminate on the basis of sexual orientation?
  • Is a retailer’s website subject to liability for features that allegedly violate the Americans With Disabilities Act?
  • Is a website that advertises real property available for sale or rent subject to state real estate licensing laws, and, accordingly, liable for alleged violations thereof?
  • Is a social networking website liable when a predator utilizes the site to exploit, and, in some cases, physically harm, a minor?

In order to sharpen my own familiarity and understanding of some of the more notable Section 230 decisions of the last ten years, I am in the process of creating short summaries of the dozen or so opinions issued by several United States Courts of Appeals and state Supreme Courts that have construed the statute. I will be posting these summaries on the blog as static webpages, accessible from links in the right-hand column. For the lawyers or law students out there, these summaries will resemble case briefs, and will hopefully help stimulate and encourage meaningful discussions among all participants about past decisions as well as future disputes, lawsuits and rulings relating to online liability.

I look forward to hearing from you. Welcome.