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Communications Decency Act Immunizes ISP / Host from Liability under State Law for Content of Postings under unless Its System Is Designed to Facilitate Unlawful Acts

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From Johnson v. Elizabeth Arden d/b/a ComplaintsBoard.com, 614 F.3d 785 (8th Cir. 2010):

A. Communications Decency Act

The Johnsons first argue that the district court erroneously dismissed their claims after concluding InMotion is immune under the CDA. The Johnsons contend that 47 U.S.C. § 230(c)(1) and (e)(3) merely provide that a provider of internet services shall not be treated as the publisher or speaker of information on the internet provided by another party but does not immunize a provider from suit. The Johnsons assert that Missouri law provides for joint liability where a wrong is done by concert of action and common intent and purpose. According to the Johnsons, the CDA would only bar actions against website operators deemed to be the "publisher or speaker" of defamatory material. ***

This case presents an issue of first impression for this court, as we have not previously interpreted § 230(c). "Statutory interpretation is a question of law that we review de novo." *** The CDA states that "[n]o 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), and expressly preempts any state law to the contrary, id. § 230(e)(3).

[Footnote 3.] Section 230(e)(3) states: (3) State law--Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. 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.”

The CDA defines an "information content provider" as "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." ***

Read together, these provisions bar plaintiffs from holding ISPs legally responsible for information that third parties created and developed. See Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1162-64 (9th Cir. 2008) (holding that CDA immunity did not apply to website that was designed to force subscribers to divulge protected characteristics, but that CDA immunity did apply to the "Additional Comments" section of the website where the information was created by third parties and not required by the website ISP). "Congress thus established a general rule that providers of interactive computer services are liable only for speech that is properly attributable to them." Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 254 (4th Cir. 2009).

"The majority of federal circuits have interpreted the CDA to establish broad 'federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.'" Almeida v. Amazon.com, Inc., 456 F.3d 1316, 1321 (11th Cir. 2006) (quoting Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997)). The district court, following majority circuit precedent, held that § 230(c)(1) blocks civil liability when web hosts and other ISPs refrain from filtering or censoring the information that third parties created on their sites. Green v. Am. Online, 318 F.3d 465, 471 (3d Cir. 2003) (holding that under the CDA the defendant ISP is not liable for failing to monitor, screen, or delete allegedly defamatory content from its site).

It is undisputed that InMotion did not originate the material that the Johnsons deem damaging. InMotion is not a "publisher or speaker" as § 230(c)(1) uses those terms, therefore, the district court held that InMotion cannot be liable under any state-law theory to the persons harmed by the allegedly defamatory material. Five circuit courts agree. See Universal Commc'n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 419 (1st Cir. 2007) (affirming dismissal of a claim brought by a public-traded company against an internet message board operator for allegedly false and defamatory postings by pseudonymous posters); Batzel v. Smith, 333 F.3d 1018 1032-33 (9th Cir. 2003) (holding that even if operator of internet services could have reasonably concluded that the information was sent for internet publication, he was immunized from liability for the defamatory speech as a "provider or user of interactive computer services" under the CDA); Green v. Am. Online, 318 F.3d at 471; Ben Ezra, Weinstein & Co. v. Am. Online, Inc., 206 F.3d 980, 986 (10th Cir. 2000) (finding that defendant ISP was immune to the defamation claim under the CDA when it made its own editorial decisions with respect to third-party information published on its website); Zeran, 129 F.3d at 332-34 (holding that the CDA barred claims against defendant ISP that allegedly delayed in removing defamatory messages posted by unidentified third party, refused to post retractions of those messages, and failed to screen for similar postings thereafter). ***

The Johnsons cite Chicago Lawyers' Committee for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666 (7th Cir. 2008), for support. Craigslist held that " § 230(c) as a whole cannot be understood as a general prohibition of civil liability for web-site operators and other online content hosts. . . ." ***. However, while the Seventh Circuit construes § 230(c)(1) to permit liability for ISPs, it limited that liability to ISPs that intentionally designed their systems to facilitate illegal acts, such as stealing music. Id. at 670 (citing Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 125 S. Ct. 2764, 162 L. Ed. 2d 781 (2005); In re Aimster Copyright Litig., 334 F.3d 643 (7th Cir. 2003)). Specifically, Craigslist held that an ISP could not be held liable for allowing third parties to place ads in violation of the Fair Housing Act on its website if the ISP did not induce the third party to place discriminatory ads. ***

The record contains no evidence that InMotion designed its website to be a portal for defamatory material or do anything to induce defamatory postings. We conclude that the CDA provides ISPs like InMotion with federal immunity against state tort defamation actions that would make service providers liable for information originating with third-party users of the service such as the other defendants in this case.

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