CDA Immunity Further Weakened

More courts are recognizing that Section 230 of the Communications Decency Act (“CDA”) is a misguided and unworkable law and construing it accordingly.

The 9th Circuit recently found in Fair Housing Council v. that when an ISP actively encourages or allows some damaging third party content, the ISP can face liability in spite of the CDA. Now the U.S. District Court for Connecticut has held that Section 230 creates an affirmative defense which cannot be decided on a motion to dismiss. The matter, entitled Doctor’s Associates, Inc. v. QIP Holders, LLC, makes it more difficult for websites to have a case dismissed without allowing plaintiffs opportunity to obtain some discovery. The matter involves third-party created videos on QIP Holders’ website comparing Quiznos® Subs with Subway® sandwiches. Some of the third party content calls into question the prevalance of meat on a Subway sandwich compared to a Quiznos sandwich.

The Court found that the plaintiff has requested that the court not address the CDA defense on a Rule 12(b)(6) motion and had requested additional discovery. The Court granted both requests, and declined to follow other courts who had allowed the CDA Immunity defense to be considered under a 12(b)(6) motion.

Bottom Line: The ruling is another positive step in vacating the CDA’s overly broad immunity provisions. With immunity-restricting opinions now in two Federal Ciruits, it will be interesting to see if other Circuits follow suit.

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