Thursday, September 06, 2012

Hare v. Richie, DCMD 2012: Sec. 230 Mot Dismiss Denied

Hare v. Richie, DCMD 2012: Motion to Dismiss on 47 USC 230 grounds denied where web site added potentially actionable comments at the end of third party posts.
"In passing section 230, Congress sought to spare interactive computer services this grim choice by allowing them to perform some editing on user-generated content without thereby becoming liable for all defamatory or otherwise unlawful messages that they didn`t edit or delete." Fair Housing Council of San Fernando Valley v., LLC, 521 F.3d 1157, 1165 (9th Cir. 2008) (en banc). Thus, "`Congress decided not to treat providers of interactive computer services like other information providers such as newspapers, magazines or television and radio stations, all of which may be held liable for publishing or distributing obscene or defamatory material written or prepared by others.'" Batzel v. Smith, 333 F.3d 1018, 1026 (9th Cir. 2003) (quoting Blumenthal v. Drudge, 992 F. Supp. 44, 49 (D.D.C. 1998)). As the Fourth Circuit explained in its touchstone decision in Zeran v. America Online, Inc., supra, 129 F.3d at 330: "§ 230 precludes courts from entertaining claims that would place a computer service provider in a publisher's role. Thus, lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions—such as deciding whether to publish, withdraw, postpone or alter content—are barred." It is "immaterial whether this decision comes in the form of deciding what to publish in the first place or what to remove among the published material." Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1102 n.8 (9th Cir. 2009). Moreover, "an editor's minor changes to the spelling, grammar, and length of third-party content do not strip him of section 230 immunity." Fair Housing Council, 521 F.3d at 1170.

Nevertheless, § 230(c)(1) "was not meant to create a lawless no-man's-land on the Internet." Id. at 1164. In the words of the statute, if the information on which liability is based was not "provided by another information content provider," an interactive computer service provider will not be entitled to immunity under § 230(c)(1) (emphasis added). See Nemet Chevrolet, 591 F.3d at 254. The Ninth Circuit explained in Fair Housing Council, 521 F.3d at 1162-63:
A website operator can be both a service provider and a content provider: If it passively displays content that is created entirely by third parties, then it is only a service provider with respect to that content. But as to content that it creates itself, or is "responsible, in whole or in part" for creating or developing, the website is also a content provider. Thus, a website may be immune from liability for some of the content it displays to the public but be subject to liability for other content.
[This is a test post - I am seeing how things link together]
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