2016 was a tough year in many respects (check out the #Fuck2016 hashtag), including a swarm of adverse Section 230 rulings. Even in paradigms where the immunity still functions reasonably well, such as user comments on message boards or online marketplace operator liability, rulings this year provided plaintiffs/regulators with powerful tools to undermine the immunity. As bad as 2016 was, after we see the full effects of this year’s rulings, I think we’ll look back nostalgically at 2016 as Section 230’s high-water mark. How’s that for a “happy” new year?
So rather than enumerate the 10 most important Section 230 rulings, I’ve cynically decided to just list out the 10 worst rulings this year. For those looking for a ray of optimism, the 5 best rulings are at the end of this post.
[Procedural note: I limited myself to rulings issued in 2016. This excludes a couple defense losses issued in 2015 but I didn’t blog until 2016 that otherwise may have made the list: the Tanisha and Maxfield cases. It also excludes the Washington Supreme Court ruling in JS v. Village Voice from September 2015, which cast a long shadow on Section 230 jurisprudence in 2016.]
Ten Worst Section 230 Rulings
#10: McDonald v. LG (District of Maryland). Section 230 doesn’t immunize online marketplaces from products liability claims.
#9: Cross v. Facebook (California Superior Court). A publicity rights claim defeated a Section 230 motion to dismiss despite the Ninth Circuit’s Perfect 10 v. ccBill precedent to the contrary (and the publicity rights claim is based on commercial editorial usage, which should be totally legit). This case is on appeal.
#8: Consumer Cellular v. ConsumerAffairs.com (District of Oregon). A review website’s star ratings aren’t protected by Section 230 because they are “the defendants’ own factual representation(s) regarding those third-party expressions of opinion.” This opens up the possibility of plaintiffs attacking review websites for star ratings by identifying statistical anomalies.
#7: FTC v. LeadClick (9th Circuit). An ad network that never actually published any content at all does not get Section 230 immunity for deceptive ads by publishers in its network; but everything went south because the court says that the ad network was *directly* liable for an FTC Act violation based on its publishers’ content. This case could help government regulators bypass Section 230 using their laws against deceptive or unfair trade practices.
#6: Enigma Software v. Bleeping Computer (Southern District of New York). Message board operator can’t get motion to dismiss for its “moderator’s” content. This opens up the door for plaintiffs to hold message board operators liable for content from “super-users.”
#5: People v. Bollaert (California Appeals Court). Operating a pay-to-remove scheme for nonconsensual pornography is odious, but the court’s analysis of the Section 230 issues was also offensive. The court said “Bollaert’s design and operation of UGotPosted.com—which required users who wished to use the Web site to provide content that violated other persons’ privacy—does not entitle him to statutory immunity under the CDA.” Notice the doctrinal conflict with the Doe v. Backpage ruling discussed below.
#4: Doe #14 v. Internet Brands and Beckman v. Match (both 9th Circuit). Pleading a website’s “failure-to-warn” overcomes a Section 230 motion to dismiss.
#3: Huon v. Denton (7th Circuit). A plaintiff defeated a Section 230 motion to dismiss by generally alleging that the message board operator authored comments, even though the plaintiff did not allege the operator wrote the specific comment in question. Weakly supported assertions of operator authorship of message board comments are a classic plaintiff argument to work around Section 230 motions to dismiss, and this ruling encourages the tactic.
#2: Airbnb v. San Francisco (Northern District of California). This ruling puts all online marketplaces at risk by allowing regulators to criminalize taking a cut of illegal user-to-user transactions. Regulators can think of an infinite number of ways to make transactions illegal, and as that regulatory thicket gets built, operating online marketplaces may become impossible because taking a share of illegal transactions will be itself illegal. I believe this ruling is on appeal.
The #1 worst Section 230 case of 2016: Hassell v. Bird (California Appeals Court). Yelp can’t challenge a court order to remove a review issued in a case where it wasn’t a litigant. This case has Due Process, First Amendment (Freedom of Speech AND Freedom of the Press) and Section 230 problems all rolled into one. If this ruling stands (and I sure hope it won’t), it provides a “Right to Be Forgotten”/censorship power under US law for any plaintiff who can get a default or stipulated judgment against the author–and if there is a service of process defect, author misidentification or bogus defendants, even without ever suing the author. This ruling is on appeal.
Note about the Section 230(c)(2) cases. Section 230(c)(2) failed repeatedly, including Spy Phone v. Google, Darnaa v. Google and E-Ventures v. Google. I think courts don’t sufficiently respect Section 230(c)(2) but it’s become an unreliable safe harbor.
Five Best Section 230 Rulings
#5: O’Kroley v. Fastcase (6th Circuit). Google isn’t liable for its search results snippets.
#4: Kimzey v. Yelp (9th Circuit). A straightforward ruling in favor of Yelp, and the opinion provides a number of useful quips that can be cited against Roommates.com’s bloviation.
#3: People v. Ferrer (California Superior Court). Section 230 protects Backpage executives from criminal liability for illegal online prostitution ads, even if Backpage syndicates the ads to third party sites and profits from the ads. Despite the defense win, I actually considered this case for the “worst” list because Section 230 didn’t deter the prosecution in the first instance–or the redux.
#2: Fields v. Twitter (Northern District of California). It’s insane to think that social media sites should be the financial guarantors of all victims of all terrorist attacks. Fortunately for the existence of the social media industry, Section 230 prevents that outcome. This ruling is on appeal.
#1: Doe v. Backpage (First Circuit). The court held “a website operator’s decisions in structuring its website and posting requirements are publisher functions.” Not only does this provide a substantial counterweight to Roommates.com, but it is an effective response to many different plaintiff pleadaround attempts. This ruling is on appeal to the U.S. Supreme Court, and the plaintiffs’ arguments attack Section 230’s foundation. If SCOTUS declines cert, this ruling will emerge as a major citation in Section 230 jurisprudence. If SCOTUS grants cert, it will set up an incredibly high-stakes battle royale over the future and fate of Section 230.
* Silver v. Quora (10th Circuit).
* Caraccioli v. Facebook (Northern District of California). Facebook isn’t liable for a fake user account that distributes nonconsensual pornography.
* Manchanda v. Google
* Fakhrian v. Google (California Appeals Court). Google can’t be required to de-index a Ripoff Report. Compare Hassell v. Bird.
* Albert v. Yelp.
The preceding is republished on TAP with permission by its author, Professor Eric Goldman, Professor of Law and Co-Director of the Santa Clara High Tech Law Institute at Santa Clara University. “Ten Worst Section 230 Rulings of 2016 (Plus the Five Best)” was originally published January 4, 2017 in the Technology & Marketing Law Blog.